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Industrial Relations And Human Resources Management Services

The definition of employee relations refers to an organisation’s efforts to create and maintain a positive relationship with its employees.

In order for us to successfully manage our client’s Industrial Relations and Human Resources concerns, we will perform a comprehensive IR and HR audit on the company…

VIP is an efficient, professional system that assists in doing basic salaries, wages and commissions. Invictus can assist you in giving you the spread of essential functions.

Auditing typically refers to financial statement audits or an objective examination and evaluation of a company’s financial statements.
To achieve B-BBEE compliance, we will attend to an organisation B-BBEE– gap analysis and submit a strategy proposal in which we will address all elements of the B-BBEE scorecard relative to the client’s business sector.
To ensure that designated employers are compliant with Employment Equity & Skills Development, requires the following

ABOUT US

Invictus provides a proactive, outsourced Industrial Relations management service, with the aim of assisting and contributing towards the overall management of companies on a daily basis.
Regardless of the size of the organisation, Invictus aspires to identify and solve problem areas within the workplace, thereby ensuring the efficient operation of companies.
We are a strategic partner that offers a wide range of employment related services, a comprehensive infrastructure, personal attention, and immeasurable long term benefits.

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In the Constitutional Court case of Minister of Justice & Others v Prince & Others 2018 ZACC, the court decided to decriminalise the cultivation, possession, and use of cannabis for private purposes.  However, the court failed to guide employers on how to manage cannabis in the workplace. Does this mean that employees can now be under the influence of cannabis in the workplace without repercussions? Can an employer take disciplinary action against employees who are found to be intoxicated? This has left considerable uncertainty. Challenges of Cannabis Testing in the Workplace Unlike alcohol, which can leave one’s system within hours, cannabis can be detected between 3 days and six months after use, depending on which type of testing is conducted, namely blood, urine or hair. This bears the question; how does an employer prove that an employee is under the influence of cannabis in the workplace when they could have used cannabis days or even months before? Whilst alcohol tests, such as a breathalyser, are quick to administer and are accurate in determining how much alcohol is in a person’s system, cannabis tests do not accurately provide the same degree of impairment. As with alcohol, an employer will need to determine whether an employee can perform their duties if cannabis is detected in their system. A positive outcome on a test does not necessarily prove that the employee is under the influence of alcohol or cannabis to the extent that their work has been impaired. Legal Precedents and Practical Considerations In the matter of Tosca Labs v CCMA 2012 33 ILJ 1738 (LC), the Labour Court found that a positive test result on a breathalyser is insufficient proof to indicate that the employee was under the influence of alcohol. An employer can take disciplinary action against an employee without a test where the effects of cannabis/alcohol are observed, and it is evident that the employee is too impaired to perform their duties and/or is a risk to themselves or others in the workplace. Employers are entitled to implement policies and procedures within the workplace to ensure occupational health and safety. It is advised that a policy specifically dealing with the use of cannabis and its effects in the workplace be implemented. Further, employers need to consider the nature of the business and the duties the employee is expected to perform. An employee responsible for operating heavy machinery who is found impaired and unable to perform his duties poses more risk than, for instance, an office cleaner who does not operate any heavy machinery that could put their life or their fellow employees’ lives in danger if caught under the influence of cannabis. Thus, consideration needs to be given to the circumstances under which the offence was committed. The policy needs to consider issues such as consent to cannabis testing, what type of testing will be conducted and the employee’s history, if any, on drug-related offences. Any testing conducted by the employer must comply with Section 7 of the Employment Equity Act, No. 55 of 1998. Section 7 states that the test must be permitted or required by law or justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent job requirements. Case Study In the case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826/2020) ZALCJHB 292, two employees (Applicants) tested positive for cannabis whilst on duty. The employer (Respondent) had a zero-tolerance policy on alcohol and drug abuse, of which the employees were aware. These two employees tested positive for cannabis, pleaded guilty to the charge and were dismissed for their misconduct. The employees referred the matter to the CCMA for an unfair dismissal dispute, stating that the Constitutional Court had legalised the use of cannabis for private purposes. Unhappy with the CCMA ruling, the employees took the CCMA award on review to the Labour Court. Enforcing Zero-Tolerance Policies The employer’s justification for dismissing the employees was based on the Occupational Health and Safety Act and submitted that the zero-tolerance policy was implemented to ensure workplace safety and reduce risk to themselves, their colleagues and the plant. The Labour Court dismissed the review of the applicants and found that the Constitutional Court judgement of Prince (supra) does not afford protection to employees against disciplinary action should they act in contravention of company policies. This case demonstrates that employees can be dismissed for testing positive for cannabis in the workplace, having regard to the nature of the workplace, if a zero-tolerance policy prohibiting the use of alcohol and intoxicating substances has been adopted by the employer. In conclusion, employees are still required to adhere to their employer’s policies and procedures. They are not entitled to attend work under the influence of cannabis, despite the Constitutional Court’s ruling of decriminalising cannabis for private use. Employers will face difficulty in proving that the use of cannabis has impaired an employee’s ability to perform their duties. For more information or assistance in drafting your company’s workplace policies and procedures, please contact admin@invictusgroup.co.za. [...] Read more...
In terms of the CCMA rules, an employee is required to refer an unfair dismissal dispute to the CCMA within 30 days from the date of dismissal or termination. The purpose of this rule is aligned with a core principle of the CCMA, the efficient and speedy resolution of disputes. It may however happen that, the Applicant, being the former employee or referring party, fails to meet these 30 days. This is when an Application for Condonation must be brought by the Applicant if they want the CCMA to entertain their case.  The Application for Condonation is submitted in the form of a Notice of Motion together with a Founding Affidavit made by the Applicant, templates are easily obtained from the CCMA or available on the CCMA website. The purpose of the application is to provide the CCMA with sufficient reasons for the Applicant’s lateness. The Commissioner is then tasked to make a ruling as to either condone the lateness and grant condonation or not grant the application for condonation. Requirements and Guidelines for Late Referral to the CCMA The Founding Affidavit submitted by the Applicant is required to include the following information: The degree of lateness: This is usually measured in “days late” and is calculated after the 30-day deadline has expired.
 The reason for lateness: Here the Applicant will include all the reasons as to why they were unable to refer the matter to the CCMA timeously. The reasons must be acceptable and reasonable and not mere excuses. Any proof regarding such reasons, for instance a medical certificate, should also be attached to the application. 
 The prospects of success: The Applicant is required to provide reasons as to why they feel their dismissal was unfair and why they would be successful at the CCMA.
 Prejudice: The Applicant will state why they would be more prejudiced (“harmed”) than the Respondent (employer) if the CCMA were to refuse their late referral.
 For the Condonation Application to meet the requirements of the CCMA rules, the Affidavit must be signed by the Applicant in front of a Commissioner of Oaths. It will then be served on the Respondent and proof of service together with the Affidavit must then be served on the CCMA. Procedural Steps and Considerations in Condonation Applications at the CCMA The CCMA may then schedule the case for a process called an “In Limine” (a hearing that is scheduled to take place before the merits of the main issue in dispute can be heard), this could be heard on the “papers” or in person, the parties will be notified thereof by the CCMA in the form of a notice of set down, where the time, date and venue are provided to the parties. Should the matter be scheduled in person, the Commissioner will consider the above-mentioned application and, if applicable, allow for any oral additions that the parties wish to be placed on record. The Respondent also has the opportunity to oppose the Application for Condonation, in the same Notice and Affidavit format mentioned above. This is called an Opposing Condonation Application, where the Respondent challenges all submissions made by the Applicant. The Affidavit of the Respondent must be served on the Applicant and the CCMA within 5 days from the Respondent receiving the Applicant’s Application. If the Respondent fails to serve their Opposing Condonation within 5 days, they can provide reasons to the CCMA for consideration when determining if the late filing of the Opposing Condonation should be condoned.  Consequences of Failing to Oppose Condonation Applications at the CCMA Should the CCMA rule that the matter is to be heard on the papers and not in person, and the Respondent fails to, or opts not to file Opposing Condonation papers, the decision by the Commissioner will be based on the Applicant’s submissions alone. The Commissioner will rule in one of two ways, either the condonation will be granted, and the late referral will be accepted, in this instance the matter will proceed, and the dismissal dispute will be entertained by the CCMA, or the Commissioner will rule that the Condonation is not granted and the Applicant’s case is then dismissed. It is therefore important for an employer to act immediately when receiving an Application for Condonation, this will allow the CCMA to in conjunction with the Applicant’s submissions, consider the employer’s arguments as to why a matter should not be condoned, effectively having the dispute thrown out at the gate and potentially saving time and resources going forth. Should you receive a document as described above from a past employee, please forward same to our litigation department, at litigation@invictusgroup.co.za  without delay to attend to the above.  [...] Read more...
South Africa has a diverse cultural landscape layered with traditions which can often extend into the labour sphere. A frequently debated and ambiguous topic is the question of Traditional Healers and their role in providing medical certificates to employees who seek traditional medical assistance rather than conventional medical treatment.  This nuanced topic sparks confusion and disputes as it delves into the intersection of traditional healing practices and their recognition within the formal framework of labour and healthcare systems. The main question facing employers is whether medical certificates issued by traditional healers are acceptable and lawful. One must assess the conflict between beliefs, tradition, and legislation and the importance of traditional healers in our communities. Legal Framework: What constitutes an acceptable and valid medical certificate? In terms of the Basic Conditions of Employment Act 75 of 1997, as amended (“the BCEA”), a medical practitioner means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974. In terms of section 23 of the BCEA, the following requirements must be met for a medical certificate to be acceptable and valid: The medical certificate must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients; and
 The medical practitioner or other certified person must be registered with a professional council established by an Act of Parliament.
 Legal Framework: When can a traditional healer issue an acceptable medical certificate? Section 23 of the BCEA and section 1 of the Traditional Health Practitioners Act 22 of 2007 have established that traditional healers fall within the category of a person certified to diagnose and treat patients; traditional healers must register with the Traditional Health Practitioners Council (THPC). Registration with the said council will render medical certificates issued by traditional healers acceptable. After registration, the traditional healer must meet the requirements for payment of sick leave, as in the case of any other medical practitioner. Employers must note that since the THPC was established, a traditional healer must have a registration number and/or present proof of same for sick leave to be paid out to the employee.  Should traditional healers’ medical certificates be accepted in the workplace?  When deliberating whether traditional healers’ medical certificates are acceptable and valid, employers were advised by the Labour Appeal Court to note that the Constitution recognises traditional beliefs and practices; therefore, employers should also accept these beliefs.  Caselaw: In Kievits Kroon Country Estate (Pty) Ltd v CCMA & others 3 BLLR 241 (LC), an employee was beset by visions and consulted a traditional healer. The traditional healer told her she had to appease her ancestors by becoming a traditional healer herself. She approached her employer and requested a month’s unpaid leave to complete her traditional healer training, but the employer was only prepared to give her one week.  The employee decided to attend the month-long training course despite the employer’s express refusal. Before she left, she handed in a traditional healer’s certificate, or sick note, stating that she suffered from “premonitions of ancestors”, which the employer refused to accept as valid. According to the commissioner ab initio, the ultimate question that needed deciding was whether the employee’s absence from work was justifiable. The commissioner found that the employee had breached the employer’s rule but also found that she was justified in doing so. The employee was faced with a difficult choice: she either had to heed the call of her ancestors and face possible dismissal or obey the employer’s rules and face the wrath of her ancestors.  She opted for the former. This was found to be reasonable as the “calling” of her ancestors was beyond the employee’s control, and ignoring it potentially endangered her life.  The Labour Court was satisfied that the award made by the commissioner ab initio was one that a reasonable decision-maker would have made and declined to guess the commissioner’s findings second. Therefore the employer’s application for review was dismissed, and the employee was reinstated with back pay. It must be mentioned that the commissioner ab initio treated the matter not as an instance of sick leave but as one of absence without leave. As such, although the issue of the validity of the traditional healer’s sick not was not expressly decided, the outcome of the matter seemed to validate the underlying diagnosis. Conclusion: The above highlights the conflict between belief and law, which creates uncertainty regarding the appropriate action to be taken by employers. However, having regard to the relevant case law and legislation, the following options are available to employers: Employers must focus on the legal aspects of what is required for a medical certificate issued by a traditional healer to be valid. If any of the requirements are unmet, employers can reject medical certificates issued by traditional healers and implement unpaid leave for the days the employee was absent. Employers need to consider each case on its own merits while ensuring that employees’ rights are protected and that they are treated fairly and reasonably. When in doubt, always contact Invictus.   [...] Read more...
During the latter stages of last week, our Minister of Employment and Labour announced the new national minimum wage for 2024 in terms of the National Minimum Wage Act 9 of 2018, in which the minimum wage has been increased by 8.5%. More importantly, the amendment is set to be binding from the 1st of March 2024. Here are a few key takeaways from Government Gazette No. 50073: The new national minimum wage is R27.58 for each ordinary hour worked;For an 8-hour day (lunch break excluded), the new minimum wage would make the minimum daily pay rate R220.64 per day;For a 45-hour week, the new minimum wage would make the minimum weekly pay rate R1,241.19 per week; andFor a month’s work, the new minimum wage would make the minimum monthly pay rate approximately R5,373.96 per month. To avoid non-compliance with the governing legislation, changes in the minimum wage must be effective on March 1, 2024. Please contact our offices if you require any further information on the National Minimum Wage Act. [...] Read more...
What is a probation period? The Labour Relations Act, Schedule 8 Code of Good Practice (the Code), item 8 deals with probation. Probation is a trial period for recently hired employees. Typically, probationary periods span three to six months. The purpose of a probationary period is to evaluate an employee’s work performance over a reasonable, mutually agreed-upon period. During this period, the employer can ascertain the employee’s suitability for the position he/she had been appointed before confirming permanent appointment. Probation can prohibit access to employee benefits, such as pension/provident plans, medical aid and other benefits. Before permanent employment is confirmed, the probationary period serves to discover/identify performance issues of employees. These issues can be addressed in several ways. The length of the probation period The Code states that a newly recruited employee may be put on probation for a reasonable amount of time, depending on the position’s requirements. The duration should be decided by the type of work and the time needed to assess whether an employee is suitable for ongoing employment. A financial manager might need six months to have their suitability for the position evaluated, whereas a tea lady may just need one month. The probationary period should ideally be specified in writing, such as in the employment contract or letter of appointment. Additionally, at the beginning of the employment, the company should clearly communicate what is expected of them during this time. This is normally detailed in a job description or Key Performance Areas. If the employer is not satisfied that the employee is meeting the required performance standard, the probationary period may be extended, provided that it is reasonable. The extension’s purpose is to give the employee a chance to address the noted flaws. This could happen if the employee has potential but has committed a few mistakes or if there have been fewer opportunities for assessment during the first probationary term. The extension should also be provided in writing. Nonetheless, the employer must offer the employee a chance to voice concerns about the planned extension before extending the probationary period. The most common misconception an employer makes is to assume that a probationary employee’s rights are diminished due to the preconditions of their employment. Employers often use probation as an excuse to dismiss an employee at any stage during the agreed-upon period. This ultimately leads to unfair dismissal disputes being lost. What does the employer have to comply with during the probationary period? The Code says: “Where adequate, an employer should provide an employee with any assessment, guidance, counselling, training, or teaching needed to perform satisfactorily. Before being dismissed during the probationary period, the employee should have the chance to explain their case and receive support from a trade union representative or fellow staff member.” This implies that the probationer’s performance needs to be closely watched from the start, and any deficiencies in work performance need to be addressed by providing the worker with the assessment, counselling, instruction, training, and direction required to help him meet and sustain the stipulated job performance standard. Employees must also be allowed to explain why they believe there is inadequate performance and what they believe should be done to address the issue. The employer cannot simply dismiss an employee for not performing satisfactorily at the end of their probationary period without following any processes. The employer has to be able to demonstrate that the processes mentioned earlier of evaluation, counselling, guidance, and training have taken place and that the employee in question has been given a fair chance to present his case and identify the cause of the issue, as well as to outline and carry out (within reason) the steps he believes are necessary to address the issue. Under the employment contract terms, managers and supervisors are required to actively oversee the probationary period. They must also handle performance issues during this time by providing ongoing assessments, counselling, training, and guidance and pointing out to the employees the areas in which they need more competence. Employers must ensure that managers and supervisors know these standards in practice and maintain thorough written minutes and records of everything from consultations with the staff member (in which case a coworker may assist the staff member), informal mentoring sessions and on-the-job coaching and training. Furthermore, agreements were reached by the parties to rectify errors or poor performance, a realistic timeframe was set aside for enhancements, and the outcome of the actions was to help the employee reach the desired level of performance. The dismissal of employees while on probation Failure to permanently appoint an employee after probation is equivalent to a dismissal. Therefore, to succeed against a claim of unfair dismissal about probation, the employer must demonstrate that all conditions outlined in the Code have been fulfilled. If an employee must be dismissed during their probationary period for a cause other than subpar work, all applicable procedural and substantive requirements must be followed. Such terminations could occur as a result of their conduct or capacity. Furthermore, any material breach of contract in the probationary period will lead to dismissal. Once the employer has completed all procedural and substantive requirements, they will be well within their rights to dismiss an employee at the end of the probationary period. If the probationary period is completed, the individual will become a permanent staff member. Case law Tharratt v. Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) concerned a probationary employee dismissed due to subpar work. The CCMA determined that the dismissal was unfair because the employer neglected to investigate the reason behind the subpar performance. As a result, the company was mandated to give the worker compensation equivalent to three months’ salary. Therefore, the employer must maintain comprehensive written records, including minutes of all meetings held with the employee. Additionally, the employer should keep thorough documentation of the decisions made regarding the matter’s rectification, the agreed-upon period of improvement, and the outcomes of putting the agreed-upon measures into action. Please contact our offices for sound legal advice if you need help with any probation-related issues. [...] Read more...
Employers are often looking to expand their workforce, improve operations, or even strategically employ seasonal employees during busy or high-demand periods. However, during this exercise, employers also often overlook the process of employee screening and vetting. With the employment framework being affected by myriad factors, proper screening and vetting of employees has become increasingly important. Critical Importance of Rigorous Employee Screening Proper screening and vetting of employees are essential aspects of the hiring process, as this can improve workplace safety, ensure that an employer is legally compliant, and assist employers in maintaining the reputation they have built for themselves. If done right, screening and vetting can reduce staff turnover and associated costs, putting an employer one step ahead of the pack regarding responsible and strategic workforce development and management. On a practical level, vetting and screening also become important when considering the latest Background Screening Index (BSI) reports released by Managed Integrity Evaluation (MIE), which show a tremendous uptake in the employee embellishment of qualifications and employment experience from 2022 to 2023. As South Africa’s labour market makes it increasingly difficult for employees to find employment, more employees start to embellish their qualifications in their CVs while being dishonest about past employment experiences and backgrounds. Criminal Background and Document Verification The reports also indicate caution on the side of well-prepared employers that prioritise employee screening and vetting, as the most requested check through MIE’s system was that of potential employees’ criminal backgrounds, i.e., the criminal verification check, and checks for the validity of a potential employee’s accompanying documentation.  These reports show a positive correlation between criminal verification and background checks requested by employers and them finding suitable talent after exhausting screening and vetting checks. Case Study The case of Umgeni Water v Naidoo and Another (11489/2017P) ZAKZPHC 72 (15 December 2022) serves as a practical example of the importance of proper screening and vetting of employees. In this case, the employee was appointed as one of the employer’s annual graduate programme members, and one of the requirements for admission was that each candidate must possess at least a degree in chemical engineering. He attached a falsified chemical engineering degree on the employee’s application form, which he claimed was conferred on him by UKZN (University of Kwa-Zulu Natal). Some eight years later, the validity of this qualification was tested when the employee applied for the process technician position.  Case Findings Upon closer investigation, it became clear that UKZN had no records of the employee being awarded the degree. When the employer wanted to sue the employee for money paid to him during his employment, in the amount of R2 203 565.04, the employer had to recover the latter amount from the employee’s pension fund. Had the employer utilised proper screening and vetting measures eight years prior, they would have been able to detect that the employee’s qualification was falsified, and they could have prevented lengthy legal proceedings and associated costs. Overall, screening and vetting should be an integral part of any employer’s hiring and onboarding processes, as not only can these processes ensure that an employer employs the right employees, but, more importantly, they can protect employers from employing the wrong employees and suffering operational and reputational damage in the process. If you would like to find out more about how to vet and screen prospective employers, then please feel free to contact us. [...] Read more...
Employers frequently encounter instances of misconduct or criminal behaviour, in the form of misappropriation or theft, within the workplace. The challenge lies in identifying the specific details of when, how, and by whom these actions are carried out and whether any other accomplices were involved. Employers increasingly use polygraph tests as part of their investigations into instances of suspected misappropriation and theft. A polygraph test, commonly known as a lie detector test is a diagnostic tool used to measure physiological indicators. The underlying assumption is that deceptive answers may lead to detectable changes in these physiological parameters. Polygraph testing can be helpful in an investigation. Still, can an employer require that an employee undergo a polygraph test as part of an ongoing investigation into suspected misappropriation or theft? Although there is no particular legislation governing the specific use of polygraph tests within the workplace, employers can request that an employee undergo one, however, participation must be voluntary. In this context, voluntariness should be documented through a written agreement of consent or included in their employment contract. Legal Framework: In the case of GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) ZALCJHB 356, the Employer experienced a stock loss of R170 000-00 in January 2018. All employees including the department managers in which the loss occurred were required to undergo a polygraph test. Employees were contractually obligated to undergo and/or to subject themselves (amongst other things) to a polygraph test. Ten out of thirteen employees in that department underwent the test. The remaining three, namely, Edwin Malemone, Albert Mohau and Lucas Manamela refused to take the test citing various reasons. The Employer issued final written warnings against the three employees. The employees refused to sign the Final Written Warnings. Union Official Challenges Employer On 13 February 2018, the union official addressed a letter to the Employer essentially demanding the Employer to withdraw the warnings issued to their members. The main reason is that the polygraph test is psychological and is prohibited in terms of section 8 of the Employment Equity Act. From this communication, it became clear that the written warning did not assist the Employer in achieving the intended purpose. As a result, the Employer resorted to instituting disciplinary action against the trio which resulted in their dismissal based upon their refusal to follow a lawful and legitimate instruction by refusing to submit themselves to a polygraph test and material breach of contract. Court Rejects Challenges on Contractual Ground The court found that the essence of the Employer’s case was that the polygraph tests within its operations were driven by the relevant clause in the contracts of employment. Furthermore, the agreement entered into between the Employer and the trade union confirmed the employees’ consent to polygraph testing. Despite this, the individual applicants had repeatedly refused to undergo polygraph tests. There is no law prohibiting polygraph testing. Furthermore, the Employer never used a polygraph test to determine the employees’ guilt but rather as supporting evidence and an investigative measure. Employers can require their employees to undergo a polygraph test, provided that the employment contract explicitly includes provisions for such testing, and the employee willingly consents to being subjected, among other obligations, to a polygraph test. Alternatively, employers must obtain written consent from employees before administering polygraph tests to prevent potential labour disputes about lawful testing. Do you conduct annual polygraph tests? Be sure that you’re covering all of your bases and contact us today for legal clarification. [...] Read more...
Maternity leave is a crucial period for new mothers to provide them with the necessary time and support to care for their newborns. When an employee takes maternity leave, colleagues often step in to cover the employee’s responsibilities. During the employee’s absence, employers may face various challenges, including financial constraints or restructuring needs that may lead to tough decisions such as retrenchment, and questions may arise about the necessity of her role and the possibility of redundancy.  Can the employer terminate her in such circumstances? While courts protect pregnant employees against dismissal based on pregnancy, intended pregnancy, or related reasons, they recognise the burden employers may bear to keep the position open.  Legal Framework The redundancy issue came to light in the matter between Brandt v Quoin Rock Wines C152-2021 (LC). The Cape Town Labour Court was tasked with deciding whether Quoin Rock Wines (the Respondent) had unfairly dismissed Brandt (the Applicant) due to her pregnancy. Brandt, the company’s financial manager, became pregnant after undergoing IVF treatment. Despite informing the company of her pregnancy and expected due date, complications led to her child being born prematurely, requiring hospitalisation. Brandt continued some duties during this period, going the extra mile to ensure smooth operations while in the hospital.
 She submitted a maternity leave plan to the CEO but continued, during the COVID-19 pandemic, to delegate some tasks to a colleague. Meanwhile, the CEO took over some of her responsibilities and hired an external accountant for tax matters previously handled by Brandt. Eventually, the CEO decided to retrench Brandt, citing redundancy due to alternative arrangements and potential cost savings. Brandt argued that her job wasn’t redundant as the CEO and others were still performing her tasks. Ruling The court found that Brandt demonstrated her dismissal was linked to pregnancy, making it automatically unfair. The burden of proof shifted to the employer, who failed to establish genuine operational reasons for dismissal. The court concluded that pregnancy-related issues were valid reasons, awarding Brandt 16 months’ salary as compensation. Balancing Operational Needs and Employee Rights Employers must comprehend the proper implementation of retrenchments in alignment with operational needs in the workplace. Preceding legal judgments have highlighted the importance of a comprehensive approach to safeguarding women’s rights and promoting equality. The challenges employers face when employees initiate maternity leave are recognised both societally and legally as an acknowledgement of women’s equal status within the workplace. Conclusion Employers can retrench a pregnant employee for genuine operational reasons, adhering strictly to procedural requirements. However, employers must exercise caution when contemplating the retrenchment of pregnant employees, as a commissioner may perceive such actions as a strategy to justify unfair dismissal based on pregnancy. Should you need assistance with the retrenchment process, don’t hesitate to contact our offices at 0861 737 263. Invictus Group specializes in retrenchments and can assist clients in ensuring a smooth and efficient process. [...] Read more...
While seldom addressed, there exists a prevalent “taboo” surrounding discussion about salaries among employees. Typically, employment contracts explicitly forbid individuals from sharing their salary details with colleagues, deeming such disclosures a potential disciplinary violation in the eyes of employers. It is understandable that employers will attempt to prohibit such discussions as it could cause severe unhappiness in the workplace and upset the delicate balance between the employer/employee relationship.. Case Study However, Section 78 (1)(b) of the Basic Conditions of Employment Act states that every employee has the right to discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person”. Keeping this in mind the Labour Court has recognized that in the case of Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997)18IJL1098 that remuneration is always a term and condition of the employment contract”. Some employers attempt to have their employees “contract out of their rights” via a clause in their employment contracts however section 79 (2) states that no person may do, or threaten to do, any of the following: a) Require an employee not to exercise a right conferred by this part;  b) prevent an employee from exercising a right conferred by this part; or  c) prejudice an employee because of past, present or anticipated-  i. failure or refusal to do anything that an employer may not lawfully permit or require an employee to do;  ii. Disclosure of information that the employee is lawfully entitled or required to give another person; or  iii. Exercise of a right conferred by this part.” The effect of this is that employers are prohibited from: (a) requiring an employee not to disclose the details of their remuneration to any person;  (b) preventing an employee from disclosing the details of their remuneration to any person; or (c) prejudicing an employee because of a past, present or anticipated disclosure of such details. Additional Guidelines In addition, s79(2) provides that no person may discriminate against an employee for exercising a right conferred by this Part. Section 79(3) provides further that no person may favor, or promise to favor, an employee in exchange for the employee not exercising a right conferred by this Part. After an employee has discussed his wages with another employee, it would be unlawful for the employer to punish or retaliate against such employee for having done so. It is also unlawful for the employer to question, threaten, or put an employee under surveillance for having had such conversations.  Additionally, it is unlawful for the employer to have a workplace rule, policy, or hiring agreement that prohibits employees from discussing their wages and/or requiring the employer’s permission before entering into said conversations. Because of s79, a clause in a contract of employment forbidding an employee from exercising their right to disclose their wages will be unenforceable. Further, any disciplinary action taken against an employee for exercising such a right could be considered unfair. This section does not however grant employees the right to discuss the remuneration of other employees. Employers may prohibit employees from discussing salary information of other employees. Thus, should the remuneration details of an employee come to the attention of another employee, the latter employee cannot rely on s78 and 79 to avoid disciplinary action where his conduct contravenes a workplace rule. Remuneration Discussion However, when discussing remuneration, employees need to ensure that they are truthful about the details regarding their conditions of their employment that they are discussing and cannot be deceitful with the intention of causing an unpleasant working environment. In the court case of Bethape v Public Servants Association and Others (J1709/2016) (2016) ZALCJHB 577 (9May 2016) the court dealt with a protected disclosure made by an employee, the court was clear regarding the necessity for an employee seeking protection from the law to act in good faith and, without good faith shown, cannot demand protection. Therefore, employees who threaten to disclose their salary to other staff in order to gain from the employer are not acting in good faith. This also extends to employees becoming insolent or insubordinate. Speak to one of our legal professionals for more information regarding remuneration and employees. [...] Read more...
In an arbitration concerning misconduct, the Presiding Commissioner is tasked with deciding whether the disciplinary hearing’s-imposed sanction was fair and fitting. Guidelines The guidelines outlined in the Commission for Conciliation, Mediation, and Arbitration (CCMA) regarding misconduct proceedings articulate the following: “The key question is whether the employer could reasonably have justified the decision to terminate employment based on the severity of the misconduct, either because the misconduct itself made the ongoing employment relationship untenable or due to the combined impact of the misconduct when considered alongside other instances of wrongdoing. The Arbitrator is tasked with making a fair and impartial evaluation of the Employer’s decision, considering all pertinent factors. This assessment should be equitable, considering the interests of both the Employer and the Employee. In this process, the Arbitrator must carefully consider and comprehend the reasoning behind the Employer’s rules and standards. Additional factors to be weighed include industry norms, the Code of Good Practice, the Guidelines of Misconduct Proceedings, and the Arbitrator’s expertise.” Case Study In the following landmark case of Sidumo and Another v Rustenburg Mines Ltd and Others (2008) (2) SA 24 (CC), the prime factors that the arbitrators looked at were explained. In this case, the court judiciously deliberated on the pertinent factors for determining fairness in employment matters. Employers are strongly advised to familiarise themselves with this case. The court’s rationale encompassed a comprehensive examination of various elements, emphasising the intricate considerations involved in assessing fairness within the employment relationship, which are the following: The general vulnerability of Employees to unfair decision-making. The importance of the security of employment. The importance of the rule that was breached. The reasons for establishing the rule, including its reasonableness. The harm caused by Employee’s conduct. The impact that it had on the trust relationship. The effect of setting a precedent. The reason why the Employer imposed the sanction of dismissal. The basis of the Employee’s challenge to the dismissal. Whether additional training and instructions may result in the Employee not repeating the misconduct. The effect of the dismissal on the Employee. The Employee’s long service record. The industrial norms. Factors to consider It is essential to bear these considerations during the disciplinary hearing phase itself. Employers should take proactive measures to guarantee that the chairperson overseeing a disciplinary hearing comprehensively grasps the relevant factors and endeavours to apply them objectively. By instilling an understanding of these factors at the disciplinary hearing stage, employers contribute to a fair and equitable disciplinary process, fostering an environment where decisions are made judiciously and following the principles delineated in the aforementioned case. Speak to one of our legal professionals for more information regarding arbitration and determining the appropriate sanctions. [...] Read more...
Disciplinary proceedings in South Africa have become increasingly criminalised, and the criminalisation of this process often starts when the charges on an employee’s notification to attend a disciplinary hearing are split up, even though the charges all emanate from a single alleged act or omission. This practice has become subject to ever-increasing scrutiny from South African courts, and our courts are buckling down on the wording of charges with each new case presented before it. The rule Our courts have reiterated the basic rule about the formulation of charges in numerous cases, most notably the cases of National Police Commissioner v Myers and others 7 BLLR 688 (LAC) and EOH Abantu (Pty) Ltd v CCMA and Others (JA4/18) ZALAC 57 (LAC) 12 BLLR 1304 (LAC). In the latter case, for example, the learned Appeal Court Judge stated in paragraph 15: “One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them.” These cases confirm the norm that our courts expect (in relation to the formulation of charges) that: The employee need only be aware of and sufficiently understand what it is that they are being charged with to warrant a defence without any unfair prejudice towards them. The implications of formulating charges incoherently or splitting charges Two recent cases highlight the importance of correctly formulating charges, namely the cases of Mogane v Standard Bank (Pty) Ltd 32 CCMA 7.17.2 and Makuleni v Standard Bank of South Africa Ltd and Others 4 BLLR 283 (LAC) (8 February 2023). In Mogane v Standard Bank (Pty) Ltd 32 CCMA 7.17.2, the Commissioner was tasked with determining whether funds received by the applicant in the case were a loan or whether these funds amounted to a gift. The applicant claimed that the funds were a loan, whilst the bank’s disciplinary code listed the “borrowing” of money from clients as an offence warranting dismissal. The respondent claimed that these funds were merely a gift. The Commissioner succinctly explained that the parties’ dispute revolved around how the loan stood to be characterised, and this characterisation formed the basis of their arguments. The Commissioner reiterated the rule that an employee needs merely to understand what they are charged with in sufficient detail for them to raise a defence thereto, without prejudice, and that the characterisation of the loan in question as an academic dispute only served to delay the proceedings. In Makuleni v Standard Bank of South Africa Ltd and Others 4 BLLR 283 (LAC) (8 February 2023), the Appeal Court Judge was tasked with the review of an award made by a Commissioner in finding that the branch manager in question had been unfairly dismissed. Though the formulation of the charges at hand was not the main issue in dispute, it certainly did not favour the First Respondent’s (the employer) case for the charges to be formulated as they were. The learned Appeal Judge noted the following in paragraph 6: “Some observations about this formulation are appropriate. It comprises generalised conclusions and is bereft of a single concrete allegation of fact. A request for further particulars was de facto refused in an answer which simply said that the ‘offences’ occurred since August 2015, i.e. over a two-year period.” The appeal was upheld in favour of the employee in this case, which serves to confirm that the formulation of charges plays an important role when the events that transpired in any case stand to be investigated. Conclusion For employers, these cases confirm that a simple, succinct, and sufficient description of precisely what an employee has to answer to in disciplinary proceedings can help keep disciplinary proceedings simple and aid in decriminalising our disciplinary proceedings. Speak to one of our legal professionals for more information regarding disciplinary proceedings and splitting charges. [...] Read more...
Can an employee be dismissed without a fair procedure? The answer is no. It holds significant importance for an employer to be aware of the necessary procedures to adhere to when considering the dismissal of an employee. The employer must substantiate its case. This stems from the provision in section 188 of the Labour Relations Act (LRA), which places the burden on the employer to demonstrate the procedural and substantive fairness of employee dismissals. The Labour Courts exhibit little tolerance for employers deviating from their established disciplinary procedures or failing to adequately justify their termination decisions in light of the case’s specific circumstances. Ensuring Due Process in Employment Matters Failure to follow such a procedure could lead to the employee taking the matter to the relevant council, CCMA or Labour Court, resulting in a potential outcome that typically includes (1) reinstatement, (2) re-employment, or (3) compensation for up to 12 months. Therefore, it is paramount for the employer to abide by a set procedure, even though our legal system may not explicitly define the same. Common law principles that the employer should ensure compliance with exist. “Audi alteram partem” is a Latin legal principle that translates to “hear the other side.” It emphasises the importance of giving both parties in a legal dispute an opportunity to be heard and present their side of the argument before making a decision. This principle ensures fairness and due process in legal proceedings, allowing for a balanced and informed judgment. What is the procedure to follow? The steps an employer must take before terminating an employee’s employment are clearly outlined in Schedule 8(4) of the Labour Relations Act 66 of 1995, known as the Code of Good Practice. This code delineates the crucial procedural criteria that employers need to adhere to before carrying out a dismissal, which includes the following: The employer must inform the employee of the misconduct allegations in a manner and language that the employee can readily comprehend. This is to ensure the employee has clarity and understands the allegations against him/her so the employee can provide a response to state their case. The employee should have the opportunity to present their perspective in response to the allegations and be granted a reasonable amount of time to prepare their response. The duration considered reasonable often hinges on the complexity of the allegations and their relevance to the case at hand. A minimum period of 48 hours notice is typically required to ascertain if the employee has been afforded sufficient time. The employee should be permitted to use the support of a trade union representative or a fellow employee when preparing their response and presenting their case during any inquiry. Following the inquiry, the employer should communicate the decision reached to the employee, and it is advisable to provide the employee with written notification of this decision. If an employee is dismissed, they should receive an explanation for the dismissal, along with a reminder of their rights to refer the matter to an appropriate council with jurisdiction, CCMA, or any dispute resolution procedures outlined in a collective agreement. During the disciplinary inquiry, it is essential to note that the employee should be given a fair chance to present their case by giving his/her testimony necessary evidence and the opportunity to call witnesses if necessary. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. Case Study In the recent bargaining council decision of National Union of Furniture & Allied Workers South Africa obo Javulani / Dreamworx Bedding (Pty) Ltd (2020) 12 BALR 1257 (FBC), an employee was dismissed after he was accused of violence in the workplace, bullying colleagues and abusing female employees as well as making explicit death threats against foreign employees within the organisation. In this case, no formal disciplinary hearing was conducted, nor was the accused formally notified of said hearing taking place. The employer held a meeting whereby the complaints brought against the accused were heard, whereafter a second meeting was held where the accused was informed of the complaints. The accused denied the allegations. However, the consistent and corroborated versions of the complaints brought by various employees were deemed true on a balance of probabilities. The Council found that Item 4 of Schedule 8 provides for exceptional circumstances whereby a formal disciplinary inquiry can be deviated from due to witness intimidation or unwillingness to testify in formal proceedings. The dismissal was found to be fair in the circumstances. Upholding Procedural Fairness In summary, it is of utmost importance for employers to consistently adhere to the proper procedures when considering the termination of an employee. Procedural fairness stands as an essential prerequisite in any dismissal scenario. This entails allowing both the employer and the employee to present their perspectives and to be heard. In instances where the stipulated procedures are not diligently followed, and the employee escalates the matter to the appropriate council or the Commission for Conciliation, Mediation and Arbitration (CCMA), a commissioner, upon detecting procedural deficiencies, may decide to grant compensation to the employee. This compensation serves as an award against the employer due to their failure to uphold the essential principle of procedural fairness in the context of a dismissal. Please contact us if you are unsure of proper conduct while upholding procedural fairness. We are here to assist you during every step of the process. [...] Read more...
When an employee intentionally deceives their employer by lying about or concealing their past criminal record, the repercussions can be far-reaching and detrimental to both the employee and the employer. Employers rely on the information provided by prospective employees to make informed decisions about who to employ. When a candidate fabricates or conceals details about their criminal history, it undermines the employer’s ability to assess the risks associated with the individual accurately. The Role of Background Checks in Employment Decisions Many employment applications explicitly ask about criminal history, and providing false information can lead to dismissal if discovered later. Specific industries and positions demand a high level of honesty and integrity due to the nature of the work that the employer does. Furthermore, some employers have legal obligations to ensure that they hire people who do not have criminal records. Such employers could face serious risks should they hire someone with a criminal record. To prevent a situation where a company discovers that someone has been dishonest about their past, employers must adopt a proactive approach. Employers must conduct background checks and verify any qualifications prospective employees provide to ensure they are legitimate. Employers should ensure that it is clear that even if an offer has been made to a prospective employee, it is dependent on receiving any necessary verifications and criminal checks. Criminal History Disclosure in Interviews Interviewers should address questions related to an employee’s criminal history, and the employee should specifically disclose any information that may be relevant to the employer making a decision to hire. Company policies should be clear that should the company establish that the employee was dishonest in relation to any questions asked during the interview, such could lead to the employee’s dismissal. Policies should also be clear if there is a positive duty on employees to disclose a criminal record that they may acquire after beginning employment. Balancing Criminal Record Checks with Non-Discrimination Obligations The Employment Equity Act 55 of 1998 prohibits unfair discrimination against an employee or job applicant in any employment policy or practice on the grounds of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, political opinion, culture, language, birth or on any other arbitrary ground. Thus, employers must ensure that they do not discriminate directly or indirectly against prospective employees. However, employers have the right to conduct criminal checks before hiring someone. While in some professions, an employee can have no criminal record, there may be times when a criminal record does not impact the employment relationship. As such, it could be deemed unfair to exclude someone from employment on that basis. For example, it may be unfair to refuse to employ a receptionist who has a criminal record for driving under the influence of alcohol. It thus can be decided on a case-by-case basis whether the prospective employee’s criminal record is relevant to that specific role. Legal Precedent In the case of Ngobo v Department of Correctional Services and Others (D 1184/17) ZALCD 11, a prospective employee was required to disclose previous convictions on the enrolment form. The company had made it abundantly clear that failure to disclose any form of criminal record could lead to dismissal. The court found that the employee’s actions by not disclosing a criminal record were dishonest, and thus, dismissal in these circumstances was appropriate. In the case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggerio N.O and Others (2017), 38 ILJ 881 (LAC), the court found that the dishonesty and failure to disclose criminal convictions by the employee misled the employer and had directly led to him being employed with the company. It is thus imperative to ensure that the necessary checks are done before employing someone. If, however, it only comes to light at a later stage that someone has concealed their criminal record, it may well constitute a valid ground for their dismissal. Please do not hesitate to contact us if you are unsure how to manage employees who conceal their criminal history. [...] Read more...
Most employers’ disciplinary procedures and codes do not allow for legal representation. Generally, either the notice to attend a disciplinary inquiry will expressly state that no outside representation is permitted, or it will stipulate that the employee has the right to be represented by a representative from the workplace or if they are members of a union, a shop steward. This is interpreted to mean that the employer has a policy prohibiting external representation. The Code of Good Practice Schedule 8 of the Labour Relations Act 66 of 1995, namely, The Code of Good Practice: Dismissal, governs the procedural elements that need to be complied with when employers convene disciplinary hearings and in terms of rights to representation, the Code sets out that: “Every employee has the right to appoint a fellow employee representative of his/her choice”. While there is no entitlement in law to be assisted or represented by a legal representative during an internal disciplinary hearing, it has been argued that employees should be permitted to be represented or assisted by a legal representative during a disciplinary inquiry; this argument is supported by case law. Economic Affairs and Tourism: Northern Province v Mahumani The case law has concluded that employees are permitted to apply to the Chairperson, requesting that they be allowed to be represented by a legal representative. The Chairperson should consider the application, who can grant or deny the request. The fact that an employer has a policy prohibiting external representation does not prevent the employee from bringing an application to be represented. This was addressed by the Supreme Court of Appeal in MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani. The facts of the case were as follows: At the commencement of the inquiry, the employee applied for legal representation, which was subsequently denied because the Employer’s Code prohibited legal representation in internal proceedings. The employee then launched a review of the decision. The review was successful, and the Court held that the employee was entitled to be legally represented. The Supreme Court of Appeal accordingly ordered that the matter be remitted to the presiding Chairperson and that the Chairperson exercise his discretion and make a ruling and held that a presiding Chairperson must apply his or her mind to the request and not simply refuse the request as a result of the employer’s policy prohibiting external representation. Insights from Hamata and Another v Chairperson In the matter of Hamata and another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal held: “Only in cases where it is truly required to attain procedural fairness should legal representation be granted”. The Court further set out the factors to be considered by a Chairperson when deciding a request for legal representation; these considerations are summarised as follows: The factual or legal complexity raised by the charges; The potential seriousness of the possible finding against the accused employee and The accused employee might suffer prejudice due to not being permitted legal representation. The Court established the threshold to be used when evaluating a request for legal representation. Legal representation should, therefore, be allowed in circumstances where, if not allowed, the proceedings may be considered procedurally unfair. If an employee wishes to be represented by a legal representative, they cannot merely request the same; their submissions should be guided by the factors outlined in Hamata as to why they should be allowed legal representation. Employers also have a right to submit in response to any request for legal representation. They should also address the factors outlined in Hamata and not simply state that it has a policy prohibiting external representation. While there is nothing to prevent employers from stipulating in their disciplinary code that representation from outside the organisation is not allowed, should the employee indicate that they wish to have legal representation, the Chairperson should apply their mind to the application for legal representation and should not simply refuse such an application based on the fact that the employer has a policy prohibiting external representation. If you would like to learn more about your legal rights during disciplinary hearings, please do not hesitate to contact us. [...] Read more...
Maintaining a balanced and harmonious workplace can constantly challenge many organisations. Accountability is critical, and disciplinary inquiries are vital in addressing misconduct, upholding ethical standards, and preserving trust within a workforce.  Disciplinary inquiries are pivotal in maintaining order, accountability, and fairness within organisations. These inquiries are essential mechanisms for addressing misconduct, ensuring adherence to policies, and upholding the overall integrity of an institution. By conducting thorough and unbiased investigations, disciplinary inquiries contribute to fostering a healthy work environment and sustaining trust among employees. Disciplinary inquiries are an investigation process that aims to provide accused employees with the chance to present evidence countering the charges and contest the claims made by the employer before any decisions that may impact the working relationship.  Legal Framework The process of disciplinary inquiries is governed by Schedule 8 of The Labour Relations Act, Code of Good Practice Section 3(1) – (3), which stipulates the following: “(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business.  In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.  (2) The courts have endorsed the concept of corrective or progressive discipline.  This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings. (3) Formal procedures do not have to be invoked every time a rule is broken, or a standard is not met. Informal advice and correction are the best and most effective ways for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.” Employers must establish a disciplinary code within their organisation to provide clear guidelines on acceptable conduct and performance expectations. This code of conduct serves as a framework for addressing instances of misconduct or poor performance among employees in disciplinary inquiries. The disciplinary code of conduct must also outline the potential consequences for violations. A well-defined disciplinary code not only helps address employee misconduct promptly but also ensures consistency in applying consequences, fostering a sense of accountability and fairness within the workforce. This proactive approach contributes to a more disciplined and productive workplace, ultimately benefiting both the employer and the employees. Procedural and Substantive fairness of disciplinary inquiries Procedural fairness pertains to the fairness of the procedures followed during a disciplinary inquiry. It involves ensuring that the disciplinary process is conducted in a transparent, consistent, and unbiased manner. Substantive fairness focuses on the fairness of the actual decision reached at the end of the disciplinary process based on the evidence presented by both parties. It ensures the decision is reasonable, justifiable, and proportionate to the alleged misconduct or performance issues. The primary goal of disciplinary inquiries is to establish accountability. When an employee’s actions deviate from the employer’s established code of conduct, it is crucial to identify the responsible party and hold them accountable for their behaviour. Disciplinary inquiries provide a structured process for gathering evidence, interviewing relevant individuals, and determining the facts surrounding an incident. This accountability serves as a deterrent for future misconduct and reinforces the organisation’s commitment to its values and standards. Moreover, disciplinary inquiries contribute to maintaining a fair and just workplace. A transparent investigation process ensures that all parties involved have an opportunity to present their side of the story. This fairness is not only a legal requirement but also a fundamental aspect of ethical leadership. Employees are more likely to trust an organisation that handles disciplinary matters objectively, treating everyone equally regardless of their position or tenure. The Role of Disciplinary Inquiries Disciplinary inquiries also play a crucial role in safeguarding an organisation’s reputation. Incidents of misconduct, if left unaddressed, can tarnish the image of a company and erode the trust of employees, clients, customers, and other stakeholders. By promptly and thoroughly investigating allegations of wrongdoing, organisations demonstrate their commitment to ethical conduct and send a clear message that misconduct will not be tolerated. Furthermore, disciplinary inquiries contribute to a proactive approach to risk management. Identifying and addressing potential issues early on can prevent more significant problems from arising. Whether the misconduct involves harassment, fraud, or breaches of organisational policies, a disciplined inquiry allows organisations to assess and mitigate risks effectively. The importance of disciplinary inquiries cannot be overstated. These inquiries are a cornerstone for maintaining accountability, promoting fairness, safeguarding reputation, and proactively managing organisational risks. Organisations can create a culture of integrity, trust, and continuous improvement by establishing a robust and transparent process for addressing misconduct. For more information on Disciplinary Inquiries, please feel free to contact us. [...] Read more...
On 25 October 2023, Deputy Judge President Sutherland handed down the judgment of Van Wyk and Others v Minister of Employment and Labour ZAGPJHC 1213. This judgment fundamentally changes how maternity and parental leave will be dealt with in the future. The background to the matter: The matter emanated from the Van Wyk family’s utilisation of maternity/parental leave, a picture that has become commonplace in modern society. Mr. Van Wyk is a salaried employee, and Mrs. Van Wyk operates for her account. The pair opted for Mrs Van Wyk to return to her trade as soon as possible after the birth of their child so as not to lose her business. Because maternity leave was out of the question for Mrs Van Wyk, Mr Van Wyk was the only one eligible for any leave. Yet, he was not eligible for more than ten days’ paternity leave in the governing legislative framework. As such, Mr. Van Wyk took partly unpaid extended leave per an ad-hoc agreement with his employer, yet he was not entitled to UIF payouts. The issue at hand: The issue before the Court was whether the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act and the corresponding provisions of the Unemployment Insurance Fund Act, namely sections 24, 26A, 27, 29A, were invalid due to inconsistency with sections 9 and 10 of the Constitution. The Order: The Court found that the above provisions were indeed invalid to the extent that these provisions unfairly discriminated between mothers and fathers and unfairly discriminated between one set of parents and another based on whether their children were born of the mother, conceived by surrogacy, or adopted by the parents. The implications for employers: Contrary to popular belief and media speculation, the order of the Court has not automatically invalidated the provisions regarding maternity and parental leave. In other words, employers and employees should not fend for themselves and determine their maternity/parental leave periods or stipulations. In terms of the order, Parliament has been given two years to cure the defects within the legislation as far as it is inconsistent with the provisions of the Constitution. However, suspending the invalidity does not mean nothing has changed either. In the meantime, there are interim provisions in terms of which: Parents in natural birth agreements can decide between them who would take the allotted four-month parental leave period, or this period can be freely allocated between them; Parents who adopt a child younger than two years are now entitled to the same leave regime as parents to a natural birth; Parents in a commissioning parent arrangement are now entitled to the same leave regime as parents to a natural birth and All the above benefit equally from parental leave provisions and UIF benefits. If you would like to find out more about how this recent ruling may affect your career and family leave or would like to discuss your legal rights then please do not hesitate to contact us. [...] Read more...
Employers often find themselves confronted by employees who want to take family responsibility leave for various personal reasons. However, it’s essential to determine their eligibility for such leave. If they are not eligible, what alternatives can employers consider? The Basic Conditions of Employment Act of 1997 (BCEA) includes provisions for different types of leave, and with regard to Family Responsibility Leave, Section 27 stipulates the following: “(1) This section applies to an employee— (a) who has been in employment with an employer for longer than four months; and (b) who works for at least four days a week for that employer. (2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take— (a) when the employee’s child is born; (b) when the employee’s child is sick or (c) in the event of the death of— (i) the employee’s spouse or life partner; or (ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.” Critical Points for Employees to Remember It is important to remember that an employee can’t apply for family responsibility leave (for a sick child) if the child is over 18 years of age. An employee may take family responsibility leave in respect of the whole or part of a day. Unfortunately, unused leave lapses at the end of the annual leave cycle in which it accrues.  Therefore, in both principle and application, foreign employees needing to return to their home countries for any reason, employees desiring to participate in tombstone unveilings, or those wishing to attend the funerals of distant relatives or cousins, or any other reason not specified in the BCEA do not qualify for Family Responsibility Leave. Leave Approval and Verification Guidelines Under the BCEA In the instances where employees are not eligible but still require leave to attend to their matters, it remains the discretion of the company whether to allow such employees to make use of their annual leave, should the employee have any available to them, or take the requested period as unpaid leave. The BCEA also makes provisions for employers to verify and explore the validity of the leave taken in terms of section 27 (5), which states:  “Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2) for which the leave was required.” Such as a doctor’s note or death certificate. However, South Africa’s business landscape encompasses many industries and sectors, each with its Collective Agreements in effect. It’s worth noting that many of these industries have adopted the BCEA as a minimum requirement for establishing their Family Responsibility Leave criteria. “(7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.” If you would like to find out more about how to properly apply for, or when it is appropriate to take family leave, then please do not hesitate to contact us. [...] Read more...
Maternity leave occupies a key position in the dynamic world of labour relations, embodying statutory requirements and moral obligations. Ensuring the protection of pregnant women’s rights and well-being in the workplace, maternity leave in South Africa is a fundamental pillar of employment regulations.  Legal Framework: Maternity leave in South Africa is governed by Sections 25 & 26 of The Basic Conditions of Employment Act (BCEA) and Sections 186 & 187 of the Labour Relations Act (LRA). This legislative provision is designed to offer pregnant employees financial stability and job security throughout the critical period before and after giving birth. Eligibility and duration: Section 25 of the BCEA states that an employee is entitled to four consecutive months’ unpaid maternity leave. An employee may commence maternity leave at any time from four weeks before the expected date of birth or on a date from which a medical practitioner or midwife deems necessary.  Employees may only work for six weeks after the birth of their child if a medical practitioner or midwife certifies that she is fit to do so. Should an employee experience a miscarriage during her third trimester of pregnancy or have a stillborn child, the employee is entitled to 6 weeks of maternity leave, regardless of whether she has already started her maternity leave. Regarding the BCEA, the employee can apply for maternity benefits from the Unemployment Insurance Fund (UIF) for a portion of their average salary/wage. Please note that some Bargaining Council (Collective Agreement) might have already negotiated these minimum requirements to something more favourable – such as a more extended period of leave and/or payment of a particular portion or, in some instances, payment of the whole amount during the period.  An employee must notify an employer in writing (unless they are illiterate) on the date the employee intends to commence maternity leave and her return date. The notice must, however, be given at least four weeks before the employee plans to start maternity leave.  Whether the employee is on paid/unpaid maternity leave, their annual leave continues to accrue.  Other benefits, such as medical aid or pension/provident fund contributions, depend on the company policy or what was agreed between the parties before leave commenced.  Most employers generally cover the cost of the same and deduct these amounts once the employee returns to work.  When an employee returns from maternity leave, the company is required to keep her position open. Employee’s responsibility: An employee must notify her employer in writing of her maternity leave’s start and return date. This must be done at least four weeks before the intended start date of maternity. Employer Responsibility: Employees may ask the manager or supervisor for a room to express milk or breastfeed when they return to work after maternity leave. Employees should be permitted to take two 30-minute breaks each day to breastfeed or express milk, as required by the Code of Good Practice to protect employees during pregnancy and after childbirth.  Every working day for the first six months of the child’s existence should be set aside for this. It is unsafe and unsanitary to express milk near a toilet, so employers should try and provide a place where the employee can express milk or breastfeed that is clean and private. Section 26 of the BCEA prohibits the employer to require or allow a pregnant employee or an employee breastfeeding her child to engage in work that endangers her well-being or that of her child. During an employee’s pregnancy and for six months following her child’s birth, the employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment if – The employee is required to perform night work, as defined in section 17 (1) of the BCEA, or her work poses a danger to her health or safety or that of her child and it is practicable for the employer to do so.   The employer is not responsible for the employee’s salary while on maternity leave; the employee must apply for UIF under code 9. The subject of maternity leave is complicated for businesses in South Africa. It offers prospects for staff retention, favourable company branding, and legal compliance, even though it poses operational difficulties and potential financial burdens.  Businesses may negotiate these obstacles by introducing flexible rules, supportive workplace cultures, and careful personnel planning that achieves a balance between upholding employee rights and ensuring business continuity. By doing this, they may promote a more diverse and sustainable workplace and fulfil their legal requirements. If you would like to learn more about how to implement a Maternity Leave structure properly within your organisation, please don’t hesitate to contact us. [...] Read more...
Mental health in the workplace is a critical issue that affects employees. Poor work performance is often linked to mental health issues, which may render an employee incapable of doing their job effectively by failing to meet the performance standards expected from them by the employer. The World Health Organisation describes Mental health as “… a state of mental well-being that enables people to cope with the stresses of life, realise their abilities, learn well and work well, and contribute to their community”.  Employees’ emotional skills, substance use, and genetics can make them more vulnerable to mental health problems.  Factors that could potentially contribute to mental health are social, economic, geopolitical, and environmental circumstances – including poverty, violence, inequality, and environmental deprivation. The Impact of Poor Mental Health on Work Performance Poor work performance is often a direct consequence of unaddressed mental health concerns. Common manifestations of mental health problems include increased absenteeism, decreased productivity, and reduced job satisfaction. Employees may struggle with interpersonal relationships, leading to a less cohesive and productive team. Addressing Mental Health in the Workplace It is highly recommended to follow a softer and more empathetic approach in the form of employee counselling when dealing with an employee experiencing declining mental health that affects their work performance and prevents them from meeting reasonable performance standards. The employer should always establish whether they are dealing with mental health or a diagnosed mental disorder (a mental disorder is characterised by a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour).  When dealing with undiagnosed mental health issues, the employee must be allowed to address their mental health challenges and meet the required performance standards. The employer is responsible for reasonably accommodating the employee in his/her efforts to manage his/her mental health issues. Legal Framework Section 9 of Schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act deals with the guidelines in cases of dismissal for poor work performance and clearly outlines the following:  Any person determining whether a dismissal for poor work performance is unfair should consider—  (a) whether or not the employee failed to meet a performance standard and  (b) if the employee did not meet a required performance standard, whether or not—  the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;  the employee was given a fair opportunity to meet the necessary performance standards; and  dismissal was an appropriate sanction for not meeting the required performance standard. Section 10 – Incapacity:  Ill health or injury outlines the following: Incapacity for ill health or injury may be temporary or permanent.  If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for an unreasonably long time, the employer should explore all possible alternatives short of dismissal.   When alternatives are considered, relevant factors include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee.  In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s disability. Section 11 of Schedule 8 provided the following guidelines for a person determining whether a dismissal arising from ill health or injury is unfair:-  whether or not the employee is capable of performing the work and  if the employee is not capable-  the extent to which the employee can perform the work;  the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adjusted; and  the availability of any suitable alternative work. The above procedure/s (sections 10 & 11) should be used if the employee submits evidence of a diagnosed mental health disorder and/or any other ill health or injury supported by a doctor/specialist’s recommendation. Case law In Marsland v New Way Motor & Diesel Engineering (J4175/02) ZALC 157; (2009) 30 ILJ 169 (LC); 11 BLLR 1078 (LC) (28 June 2008), the applicant alleged that the respondent discriminated against him on an arbitrary ground, this ground being his mental illness, and later because he exercised his rights under the Act to pursue remedies against the respondent for unprocedural conduct and issuing him with a final written warning according to a disciplinary inquiry. The applicant later resigned and alleged the reason being constructive dismissal by the respondent. The commissioner declared that the applicant’s dismissal was automatically unfair in section 187 (1) (f) of the Labour Relations Act to 66 of 1995. The judgement was awarded in the applicant’s favour. In summary, taking a softer, more compassionate approach to understanding and supporting an employee’s mental health challenges not only demonstrates empathy and builds trust but also promotes better outcomes for both the employee and the employer by addressing the root causes and providing tailored assistance and accommodations to the employee. By creating a supportive, inclusive, and proactive environment, employers can help their workforce thrive mentally and professionally, ultimately contributing to a healthier and more productive workforce. If you would like to find out more about addressing mental health challenges among employees, then please do not hesitate to contact us at 0861 737 263 [...] Read more...
In essence, a claim of constructive dismissal arises when an employee voluntarily resigns from their position, however, alleges that they were forced to do so due to unbearable/intolerable working conditions created by the employer.  While generally, in cases of dismissal for misconduct, incapacity or operational requirements, dismissal is not disputed, and, if referred to the CCMA or Bargaining Council the onus lies with the employer to prove that the dismissal was substantively and procedurally fair. However, in cases of Constructive Dismissal, the onus initially rests with the employee, who must establish that their resignation occurred because the employer had made the working conditions so intolerable that resignation was the only viable option. Case Study  In Pretoria Society for the Care of the Retarded v Loots 6 BLLR 721 (LAC), the Court stated that the first test was whether, when resigning, the employee would have continued the employment relationship indefinitely if it had it not been for the employer’s unacceptable conduct, and there was no other motive for the resignation. If the employee successfully meets this criterion, their resignation is reclassified as a “dismissal,” and the responsibility to prove the fairness of the dismissal then shifts to the employer. Understanding Constructive Dismissal Employees resign from their jobs for various reasons every day, including personal preferences or issues with their work environment. Fortunately for employers, these common reasons do not meet the Constructive Dismissal requirements. To prove that their resignation amounts to constructive dismissal, employees must meet specific criteria. Constructive dismissal is defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee, to such an extent that the employee has no other option available but to resign.” Insights from Gold One Ltd v Madalani and Others (2021) A question that arises, is, what is intolerable? In Gold One Ltd v Madalani and Others  2 BLLR 198 (LC)  the court held that ‘intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.’  For a claim of Constructive dismissal to succeed, the term “intolerable” implies a level of intolerability that surpasses ordinary workplace challenges, and the employee must demonstrate that the employer was responsible for creating this intolerable situation, with no other feasible resolution except resignation. Navigating the Path to Resolutions A question that often arises from a presiding officer, when faced with an allegation of constructive Dismissal, is whether or not the employee lodged a Grivence, and followed the Grievance procedure, to allege that there was no other way to resolve the issue, without employees exercising and exhausting the internal procedure more often than not results in the employee falling short of meeting the criteria for Constructive Dismissal.  In summary, while proving constructive dismissal may be challenging, it is not impossible. Employers are advised to be vigilant when faced with allegations of intolerable working conditions from an employee. Employers must address and attempt to resolve legitimate grievances in good faith, to maintain a harmonious working environment. Employers seeking guidance or clarity on the above are invited to contact Invictus Group on 0861 737 263. [...] Read more...
The law, in general, has not caught up to all of the latest trends in technology, including the use of social media by prospective employers to screen potential employees and/or discipline employees for conduct portrayed on social media.  Case Study – MH v Rhodes University In the matter of MH v Rhodes University (20 March 2017) 2017 7 BALR 785 (CCMA) an employee who posted a photo of and made statements about a colleague on Facebook was found guilty of offensive conduct during the subsequent disciplinary hearing, despite the disciplinary sanction being found to be unfair at arbitration the employee had resigned. Her chances of future employment had been negatively affected. Legal Insights on Social Media and Personal Information Online Available case law, both local and international, indicates that employees who willingly post personal information on the Internet do not have a reasonable expectation of privacy; this would include protection under the Protection of Personal Information Act, 2013. Social media networks, such as Facebook, Instagram, LinkedIn, Twitter, etc., may be accessed by the public, meaning the content posted on such networks is public domain.  Due to the content posted on social media networks being considered public domain, prospective employers and/or employers possess the right to Google a prospective employee and/or an employee to gain information on the individual. This ‘right’ is limited by a prospective employee and/or an employee changing his/her social media privacy settings.  How Your Online Presence Can Impact Your Job Prospects and Career Employers or recruitment agencies screen applicant’s social media to find reasons to reject the applicant. Employers believe this type of screening is beneficial because people are generally more honest online than during job interviews.  While already established employees may have their social media screened for several reasons, including disciplinary action, as is an example of the lecturer at the University of Cape Town who was discovered to have posted on Facebook that “the #MenAreTrash movement is ‘bullsh*t’ and that women simply cannot attract quality men”, which was deemed to be against the university’s values. Simply put, beware of the content you post online! If you would like to learn more about how social media can affect your career, please don’t hesitate to contact us at 0861 737 263 or visit our website: http://invictusgroup.co.za [...] Read more...
Suspension of an employee is a standard tool employers use to maintain workplace discipline and address misconduct within the workplace. However, when these “suspensions” are not executed in accordance with the Labour Relations Act (LRA) employers might find themselves in breach of section 186(2)(b) by committing an unfair labour practice.  In addition to arguably the most severe consequence of an unfair suspension, being the financial strain this may have on the employer, it may also lead to possible legal repercussions for employers. Employers may render themselves open for discrimination claims and severe reputational damage based on negative employee morale and overall tainted employee relations.  Legal Fees and Compensation in Unfair Suspensions The financial implications of an unfair suspension may include legal fees for defending unfair suspension matters and compensation awarded to the employee should the company be found guilty of an unfair labour practice.  In Suzanne Daniels v Eskom SOC Ltd (March 2018), the employee was allegedly unfairly suspended, even though she had been suspended with full pay. The commissioner ruled that the suspension was punitive in nature rather than precautionary and ordered Eskom to pay the employee compensation equivalent to 5 months’ compensation.  Mitigating Risks and Ensuring Fairness To mitigate these consequences, employers should ensure that suspensions be imposed as a precautionary measure pending a disciplinary inquiry/disciplinary action, with full pay and  are based on legitimate reasons to justify the suspension, such as: a) If the employee is likely to interfere with investigations, b) If the employee is likely to tamper with evidence, c) If the employee is likely to influence or threaten witnesses or fellow employees.  d) Disrupt the workplace, Or  e) Where the trust relationship has been irrevocably broken beyond repair. Employers are urged to ensure that they follow the correct procedure when suspending an employee, that the employee understands the reason for the suspension, that there is in fact, a valid reason for the suspension and that the employee in question is provided an opportunity to make representations regarding the suspension.  It is clear from the above that companies must follow the set legal requirements relating to the suspension procedure to avoid unnecessary risks and pitfalls coupled with the unfair suspension of an employee.  If you require more information about the fair labour practice and/or the Labour Relations Act (LRA), feel free to speak to our legal team. Contact our Call Centre at 0861 737 263 for expert guidance and support. [...] Read more...
Section 34 of the Basic Conditions of Employment Act (BCEA) holds a pivotal position in safeguarding employers’ and employees’ rights and interests. This critical section establishes clear directives regarding the deductions an employer may make from an employee’s salary. At its core, it necessitates obtaining written permission and consent from the employee, ensuring that these deductions conform to the BCEA and/or pertinent bargaining councils. Section 34 of the BCEA  An employer is not allowed to make any deductions from an employee’s salary unless: the employer has written permission and consent from the employee in respect of the debt specified in the agreement, The deduction is required or permitted in terms of law, collective agreement, court order, or arbitration award. When is the employer allowed to deduct, and how to deduct from an employee’s salary: Lawful deductions may be made to reimburse an employer for loss or damage caused by the employee only if: The loss or damage occurred in the course of employment and was due to the fault of the employee; the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made (i.e. by way of disciplinary inquiry); The total amount of the deduction is not more than the actual loss or damage; The deduction is not more than 25% of the employee’s remuneration. Understanding Employee Salary Deductions: Rights, Procedures, and Double Jeopardy When an outstanding loan is deducted from an employee’s final salary, there must be a clause in the loan agreement/acknowledgement of debt allowing the employer to deduct the outstanding monies from the employee’s last paycheck.  Thus, the loan agreement must be in writing, where both parties have agreed to the loan amount, the repayment period, the amount payable per month, and what will become due on termination of employment.  An employer can make statutory deductions such as UIF, Provident Fund, PAYE and leave pay owed to the employer. An employer also has the right to seek payment of monies paid incorrectly to the employee. The question is often asked if it is considered double jeopardy when the employer makes a deduction (as a result of the employee’s negligence) and also imposes a sanction: Section 34(2) states that the employer may make a deduction from the employee’s remuneration to equal damages or losses incurred due to the employee’s fault such as dishonesty, sabotage, negligence and the like. To do so, a fair procedure must be followed, and specific requirements must be followed. Suppose the company has suffered a financial loss or damage to company property as a result of the employee’s fault. In that case, the company is well within its rights to be reimbursed (either by acknowledgement of debt or guilty finding after a disciplinary inquiry), and possible sanction (warning/dismissal).  Thus, a deduction may be imposed, along with a sanction and will not be viewed as double jeopardy.  This was further confirmed by Solidarity obo Mohammed / Air Traffic and Navigation Services Ltd (2011) 20 CCMA 7.22.2. A financial manager transferred a large amount of money into the wrong account, resulting in the company incurring interest charges.  The financial manager received a final written warning, and the employer made a deduction to reimburse the company for the interest charges resulting from the financial manager’s mistake. The financial manager disputed this action, claiming that it constituted double jeopardy. However, the commissioner disagreed with this, to which the commissioner clarified that the recovery of money from the employee is not considered part of the disciplinary sanction, as it is viewed as a right of the company to deduct funds that the employee lost due to the employee’s error. Essential to Keep in Mind: The deduction may not exceed 25% of the employee’s salary per payment cycle. Deductions may only be made from an employee’s salary if there is written consent from the employee, or by an award, legal conclusions or under a bargaining council’s main agreement.  In the absence of an agreement, a disciplinary inquiry must be followed. If you seek further insights into the BCEA and how it affects your business, don’t hesitate to contact our legal team. Contact our Call Centre at 0861 737 263 for expert guidance and support. [...] Read more...
Disciplinary proceedings play a vital role in upholding discipline and fairness within organisations across South Africa. Nevertheless, when it concerns individuals with mental disabilities or mental illness, additional considerations and procedures are essential to ensure a just and equitable disciplinary process. In employment, a complex situation can arise where mental illness intersects with disciplinary action. Navigating Mental Health and Disciplinary Action Employers must tread carefully in such cases, as mishandling them can lead to significant risks and legal liabilities. So, what happens when mental illness becomes a factor in disciplinary action? For instance, an employee’s misconduct might stem from a mental health issue or disability. In such scenarios, should the employer treat it as an incapacity issue by initiating an incapacity investigation, or should a standard disciplinary hearing be convened? The Labour Relations Act distinguishes between misconduct and incapacity. In a previous article, we detailed this distinction (read more: ). When an employee’s inability arises from ill health, including mental health or mental disability issues, the employer must engage in an incapacity investigation process that involves consultation and a reasonable effort to accommodate the employee. Conversely, in misconduct cases, the employer may take disciplinary action through a typical disciplinary hearing. The Impact of Mental health Issues in the Workplace Mental health or mental disability issues can impact the workplace in various ways, such as reduced morale, decreased efficiency, absenteeism, or even workplace accidents. According to a 2014 study by the World Health Organization, depression was predicted to significantly contribute to the global health burden by 2020.  Mental health issues often manifest in the workplace through poor employee performance, leading employers to respond with performance improvement programs (PIPs). These programs entail setting clear performance standards and monitoring an employee’s progress towards meeting them.  However, challenges arise when mental health issues manifest as other forms of misconduct, such as gross insolence, emotional outbursts, insubordination, or irrational behaviour. Identifying such problems can be particularly challenging, especially when emotions are running high, and the trust between employer and employee has eroded. Legal Complexities Surrounding Mental Health Classification in the Workplace Unfortunately, mental health issues are sometimes erroneously categorised as “ill health” (incapacity) rather than a disability. This misclassification can leave employees with mental health issues without legal protections. Neither the Labour Relations Act nor the Employment Equity Act defines what qualifies as a ‘disability’ within the employment law context, leading to contradictory decisions in the Labour Court. For example, in one case, the court classified an employee’s mental illness as an issue of incapacity due to ill health, while in another case, it was considered a disability. Case Study – Standard Bank of SA v Commission for Conciliation In the case of L S v Commission for Conciliation, Mediation and Arbitration & Others (2014), the court emphasised proper investigations when dealing with underperforming employees who may suffer from depression. This underscores the importance of appointing experienced disciplinary chairpersons who are well-versed in labour law and can accurately categorise issues, ensuring that correct procedures and tests are followed during incapacity investigations. The Labour Court, in Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration & Others (2008), outlined guidelines for employers dealing with employees with ‘disabilities.’ Employers should: A. Assess the employee’s ability to perform their duties. B. Explore whether adjustments to working conditions can accommodate the employee’s disabilities. C. If adjustment isn’t feasible, seek other suitable employment within the organisation. This suggests that employers may have a statutory duty to assist employees suspected of suffering from mental health issues. Crucial Points to Consider From case law and legislative provisions, several key points are evident: • Employees with mental health issues should receive as much support as reasonably practicable, including investigations to identify measures that can assist them or adaptations to the work environment. • Employers must determine whether the illness is temporary or permanent and explore alternatives to dismissal. • Regardless of employment duration, employees should always be able to state their case. • If no alternatives exist except dismissal, it should be based on incapacity. To guard against unfair dismissal and discrimination claims, employers must provide solid evidence that all viable options were considered. The consequences of failing to follow the correct procedure in dismissal cases have been highlighted in legal precedents, underscoring the need for a careful and compassionate approach when addressing disciplinary proceedings involving individuals with mental disabilities and mental illness in South Africa.  By adhering to proper procedures, accommodating reasonable requests, and offering support, organisations can ensure fair and just outcomes, fostering inclusivity and protecting the rights and dignity of all individuals affected by mental illnesses or disabilities in the workplace. If you would like to learn more about walking the tightrope between mental health issues and disciplinary action, please don’t hesitate to contact our legal team. Contact our Call Centre on 0861 737 263 [...] Read more...
As of 24 April 2023, the CCMA amended many of their rules. The CCMA has indicated that these amendments promote greater social justice and equality. Some of the amendments will impact companies, and being familiar with the changes is essential. Condonation for late referral to the CCMA Employees have 30 days to refer unfair dismissal disputes to the CCMA. Previously, when an employee was outside of that time period, they would have to apply to the CCMA for condonation before the CCMA would accept their referral. Before the actual case could be heard, the CCMA would have to make a ruling on whether they would condone the late referral before the case could proceed to conciliation or arbitration.  This rule has now changed, and employees can apply for condonation at any point, and the commissioner can decide if condonation should be heard in writing or by way of oral evidence. It seems that it will thus be easier for employees who have referred their cases late to have condonation granted. Postponements  Previously, if a party could not attend an arbitration on the scheduled date, parties could apply for a postponement, or both parties could agree in writing to postpone the matter if the request was received at least 7 days before the scheduled matter. In such instances, the parties wouldn’t have to attend on the date to argue the postponement, as it was done by agreement.  However, the rules have changed to state that even where parties have signed an agreement to postpone, the CCMA still can refuse the postponement. Thus, if the CCMA has granted the postponement, parties must still attend. The significant change here is that postponement is not a right, and even where parties agree, the CCMA still has the final say about whether to grant it or not.  Non-attendance at the CCMA by the employee Previously, if the employee who referred the case to the CCMA didn’t attend an arbitration, the case would be dismissed. Now, dismissing a case is the last resort, and the CCMA must invest a significant amount of time into determining where the employee is and if they have a valid reason for being absent.  If the employee can explain their absence, the matter will be rescheduled to another date. It is thus easier now for employees to not attend and simply make excuses for their absence, and have the matter rescheduled.  Picketing rules The rules on picketing have been amended to state that prior to the CCMA issuing a certificate that a matter remains unresolved in a matter where employees can strike, parties must first agree on picketing rules.  Closure of the CCMA The days between 16 December and 7 January will still count in any calculation of time periods at the CCMA, and the CCMA will no longer close over December. Thus, companies must ensure that even during annual shutdowns, emails are monitored to ensure that emails from the CCMA are noticed.  The amendments to the rules show an even greater leniency towards employees. Thus, companies must ensure that they comply with all the correct procedures when disciplining and dismissing employees. If you would like to learn more about the recent CCMA amendments, please do not hesitate to contact Invictus Group on 0861 737 263. [...] Read more...
Insights from Basic Conditions of Employment Act During strike action, Employers face their rights and limitations, which might not be immediately apparent when considering the concept of a “strike.” The consequences for an Employer and their organisation tend to be overshadowed.  The Labour Relations Act (LRA) defines a strike as “a partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, to remedy a grievance or resolve a dispute in respect of any matter of mutual interest between employer and employee and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory “  The focus here is on Employees’ actions, leaving Employers’ responses overlooked. This raises the question of the alternatives available to Employers in such situations. Recognising that just as Employees have the right to strike, Employers can resort to a lock-out as a last measure to protect their businesses.  When Can an Employer Resort to a Lock-Out? A lock-out occurs when an Employer denies Employees access to the workplace. Essentially, it means that striking employees cannot provide their services, as they are physically prevented from doing so and consequently won’t receive their wages/salaries. Moreover, replacement labour during a lockout is only permissible in response to a strike (defensive lockout) or as a tactic to enforce Employee compliance with the Employer’s demands. During an offensive lockout, the employer will not be allowed to use replacement labour. As outlined in section 64 of the LRA, Employers have the right to implement a lock-out under the following conditions: The dispute must have been referred to the Bargaining Council or the Commission for Conciliation, Mediation, and Arbitration (CCMA), resulting in a certificate stating that the matter remains unresolved. Alternatively, 30 days, or any extension, must have lapsed since the Council or Commission received the referral. In the event of a lock-out, any Trade Union involved in the dispute must receive written notice at least 48 hours in advance. If there is no Trade Union, the notice should be provided to the affected employees. However, exceptions exist, such as when the issue pertains to a Collective Agreement within a Council or if the Employer is part of an employer’s organisation. In such instances, the notification must be directed to the relevant Council or employers’ organisation. For Employers who are governmental entities, the parties above must be given a written notice at least 7 days before the lock-out commences. Understanding the Limits Nevertheless, there are situations where an Employer’s use of the lock-out option is prohibited. This includes cases where the dispute involves parties affiliated to a Bargaining Council, and that specific Council has resolved the matter under its Main Agreement. Furthermore, if an Employer fails to adhere to the conditions outlined in Section 64(4) and (5) of the LRA, the option of resorting to a lock-out becomes unavailable. An exception would be in the case of an unprotected employee strike; in this instance, the employer will be well within its rights to impose an immediate lockout.  In conclusion, while Employees possess the right to strike under the LRA, Employers also hold the right to initiate a lock-out. However, this right is subject to fulfilling all necessary prerequisites and understanding the associated limitations.If you would like to find out more about your rights as an employer during strike action, then please do not hesitate to contact Invictus Group on 0861 737 263. [...] Read more...
South Africa’s labour landscape is a dynamic and evolving terrain, characterised by intricate regulations designed to protect workers’ rights and ensure fair and just labour practices. One such area of significance is the overtime and hours framework for employees. As businesses adapt to changing demands and work patterns, understanding and adhering to these regulations is crucial to maintain a harmonious work environment. Insights from Basic Conditions of Employment Act In South Africa, the Basic Conditions of Employment Act (BCEA) governs the rules surrounding working hours, rest periods, and overtime. However, it’s important to note that senior managerial employees often find themselves in unique work situations due to the nature of their roles. As a result, certain exemptions and variances may apply to their overtime and hours. Before delving into the nuances of overtime and hours framework, it is essential to define the scope of senior managerial employees. According to the BCEA, a Senior Managerial Employee is “an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally.”  Section 6(1)(a) of the BCEA specifies the regulation of working hours of employees and explicitly excludes “senior managerial employees” section 6 (3) also makes provision for the Minister of Labour to establish a Ministerial Determination to exclude employees earning equal or more than the current threshold (R241,110.59 per annum or a monthly amount of R20,092.55) from the limitations and entitlements that other employees enjoy concerning working time. The BCEA sets a threshold beyond which employees are entitled to receive overtime pay. This threshold is calculated based on the employee’s earnings and hours worked. Senior Managerial employees, due to their higher earnings and/or managerial responsibilities, may be exempt from this threshold. Working Hour Regulations for Senior Managerial Employees in South Africa However, this exemption does not absolve employers from ensuring that these employees’ working hours are reasonable and conform to labour legislation, Health and Safety requirements and due regard to the family responsibilities of employees. This means that an ordinary employee’s working hours are limited to 45 hours per week and overtime to 10 hours per week. Thus, making them entitled to overtime pay and extra pay for work done on Sundays and Public Holidays. Senior Managerial employees, unfortunately, do not enjoy the same rights as they are excluded from the above. Employees that fall under the provisions of the Ministerial Determination are also excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18 (3). Fostering Flexibility and Fairness Given the unique nature of managerial and senior roles, the BCEA acknowledges the need for flexible work arrangements. Employers and employees can negotiate agreements that align with the demands of the job while still respecting legal limits on working hours and overtime. These agreements should be documented, ensuring both parties know their rights and obligations. The overtime and working hours framework for senior managerial employees in South Africa presents a complex landscape where the intersection of leadership, responsibility, and labour rights is crucial. By navigating this terrain with vigilance, employers can foster a work environment that respects the contributions of these key individuals while upholding the principles of fairness and social justice. Through clear agreements, monitoring mechanisms, and a commitment to work-life balance, organisations can ensure that their senior managerial employees thrive within the boundaries of South Africa’s labour regulations. If you would like to find out more about management overtime compensation, then please do not hesitate to contact Invictus Group on 0861 737 263. [...] Read more...
The Employment Equity amendment bill was anticipated to take effect from the 1st of September 2023, but the president has not yet proclaimed the effective date. One of the effects of the amendment bill would be that employers with less than 50 employees would not be considered a “designated employer” irrespective of annual turnover. Under the current Employment Equity Act, a designated employer is an employer who employs more than 50 employees or an employer who employs less than 50 employees but has a total annual turnover that is equal to or above the annual industry turnover threshold, as set out below. Employment Equity Thresholds Sector or subsectorsTotal annual turnoverAgricultureR6,00 mMining and QuarryingR22,50 mManufacturingR30,00 mElectricity, Gas and WaterR30,00 mConstructionR15,00 mRetail and Motor Trade and Repair ServicesR45,00 mWholesale Trade, Commercial Agents and Allied ServicesR75,00 mCatering, Accommodation and other TradeR15,00 mTransport, Storage and CommunicationsR30,00 mFinance and Business ServicesR30,00 mCommunity, Social and Personal ServicesR15,00 m Submitting annual employment equity reports doesn’t automatically render a designated employer compliant; the act also sets out the duties of a designated employer, which are: Consult with employees through the employment equity forum. Conduct an analysis. Identify barriers and affirmative action measures. Identify goals and targets for achieving employment equity goals. Prepare and implement an employment equity plan. Non-compliance with the Employment Equity Act could lead to a fine being imposed on a designated employer. The Employment Equity reporting period will commence on the 1st of September; regarding section 21 of the Employment Equity Act, all designated employers must submit an employment equity report to the director general annually. If you would like to speak to us about the new amendments or would like to find out more about how it may affect your workplace, then please contact Invictus Group on 0861 737 263 for us to assist you. [...] Read more...
In the year 2023, AI has taken the world by storm. People all over the globe have started to dabble in this new playground using one tool or another. From creating AI-enhanced imagery on Vana to writing speeches to drafting business plans on ChatGPT, everyone in today’s society has used AI in one form or another. AI is becoming increasingly common and has slowly crawled its way into the workplace, creating a mass concern among employees about whether or not it will influence and/or replace the need for workers in the future. Addressing Unemployment Concerns Amid Technological Advancements With an unemployment rate currently at 32,9% in South Africa, this is a genuine concern. In an article published by McKinsey, it states that “In about 60% of occupations, at least one-third of the constituent activities could be automated, implying substantial workplace transformations for all workers.” But is this the case? According to Forbes, “By the end of 2025, the technological progress may create 12 million jobs more than will presumably be displaced.” Embracing Change People tend to be fearful of the unknown, new technologies and ideas that have the potential to change the future of labour and the labour market. Still, we have experienced similar changes in the past, and one thing we can note is the NEED for businesses to move forward with the technological advances the times bring. A sad reality is that if businesses refuse to adapt and modernise, they may face the harsh reality of closing their doors for good. We can also note that currently, AI cannot show emotional intelligence or empathy, and it’s not intelligent enough for creative, “out of the box” thinking. Thus, it does not demonstrate any distinct features of human creativity, insight, and contextual awareness, which are critical factors in a workplace. AI and Human Synergy The facts remain that AI is a simple set of tools that organise, structure and analyse data collected from various sources that businesses have access to, but someone still needs to input specific keywords and/or phrases for it to search and analyse; it cannot operate on its own. Companies and businesses that combine both human intellect and AI in the near future will find themselves in a win-win situation. We look forwards to seeing how this area develops and its impact on the workplace… If you would like to speak to us about the legal implications of AI or would like to find out more about how it may affect your workplace, then please contact Invictus Group on 0861 737 263 for us to assist you. [...] Read more...
One of the most serious offences committed in the workplace is physical assault. Although there might be certain justifiable defences for this type of misconduct, for example, provocation or self-defence, the Labour Court has adopted a very strict approach towards any form of assault in the workplace. Case Study In the unreported matter of Bombela Operating Company (Pty) Ltd v Mthukwane and Others ZALCJHB 22 (30 January 2018) where the Court stated that: “…For an assault to have taken place, it need not have been accompanied with an ‘upper cut’, or a slap. An assault by definition can take a variety of forms, and the legal requirements are the intentional and unlawful application of physical, however slight, to the body of the complainant, or the threat that such force will be applied….” Navigating the Loopholes of Off-Premise Disputes From the above, it becomes clear that even the slightest application of force may be seen as physical assault and almost always deemed as a dismissible offence. However, the question employers are often confronted with is whether the same principle applies when the assault does not take place on company premises and/or during working hours. Does the company still have the duty to discipline the employee accordingly? Or does the assault then fall outside the scope of labour law and be dealt with either criminally or civilly? In the matter of Horn V Commissioner Beesnaar N.O and Others (JA66/2020) ZALAC 56; (2022) 43 ILJ 115 (LAC) (18 November 2021) the employee was dismissed from his place of employment for the assault of a fellow employee on a public road outside the mine. The Commissioner found that the dismissal of the employee amounted to “a sensible operational response to risk management” and was found to be both procedurally and substantively fair. The employee referred the matter to the Labour Court appealing the Commissioner’s ruling based because, inter alia, the incident did not take place on company premises or during working hours. The Labour Court’s Verdict The Labour Court, and later on the Labour Appeal Court, both rejected the employee’s grounds for appeal and upheld the ruling of the Commissioner by stating that the dismissal was both substantively and procedurally fair despite the assault not having taken place on company premises or during working hours.  From the above, it becomes clear that employees cannot make themselves guilty of offences related to the assault on a colleague and argue that the employer is not within its rights to take the appropriate action and possibly dismiss the employee when such assault took place outside the employer’s premises and or working hours.  Creating Clear Company Policies Employers are urged to ensure that they have clear policies and procedures in place to properly regulate such grey areas if such an incident might take place. Workplace frustration and unhappiness can easily rocket into conflict, and it is imperative to have the necessary rules and regulations in place to safeguard both the employer and its employees. Should you require any assistance with updating your company policies and rules and or advice on disciplinary action, contact Invictus Group on 0861 737 263 for us to assist you. [...] Read more...