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To ensure that designated employers are compliant with Employment Equity & Skills Development, requires the following
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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.
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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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 [...]
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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. [...]
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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 [...]
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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. [...]
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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. [...]
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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 [...]
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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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. [...]
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A demotion is when an employee’s status and/or remuneration is lessened. Although rarely used, employers sometimes elect to demote employees after a disciplinary inquiry was conducted, where the dismissal, as a disciplinary sanction, would have been justified.
Demotion as a Legitimate Disciplinary Sanction
Our Courts and the CCMA have recognised demotion as legitimate, subject to specific requirements. Demotion is considered a legitimate sanction as an alternative in cases where dismissal would be equally appropriate. The CCMA case of Sityana & Mane vs Valpa Easi Gas addressed the question of demotion as a disciplinary sanction. The Commissioner confirmed that demotion is an acceptable form of disciplinary sanction.
The Commissioner, however, cautioned employers in applying the same, stating, “Since it effectively entails a change of the employee’s terms and conditions of employment, it is self-evident that demotion should be reserved for cases of serious misconduct. In my view, the test for whether an employee was fairly demoted is akin to that used in establishing whether a dismissal was fair, subject only to the consideration that the consequences are slightly less serious for the employee.”
Balancing Fairness and Potential Consequences
Section 2 (1) (b) of Schedule 7 of the Labour Relations Act recognises demotion as a possible ground for an unfair labour practice. In the CCMA case of Arries vs Afric Addressing (Pty) Ltd, the Commissioner asserted that “A unilaterally imposed demotion can … only be fair if it is offered as an alternative to dismissal; in other words, the sanction of dismissal is found to be appropriate, but the employee is offered the opportunity of accepting a lesser penalty, i.e., demotion. In such a case, if the employee accepts, the demotion is no longer unilateral, but agreed between the parties.”
When a final written warning is considered to be too lenient and dismissal too severe, demotion could be more appropriate and is considered to be of value as a disciplinary sanction. Employers should take note of the potential consequences of demotion, in so far as the effect it could have on the employee’s morale and any subsequent resentment of the employer.
The Complexities of Demotion as a Disciplinary Sanction
Demotion often leads to an employee resigning and claiming constructive dismissal on grounds of having been demoted. However, despite this, depending on the circumstances and the individual parties involved, as a form of disciplinary sanction, demotion may be appropriate, notwithstanding the difficulties associated with it.
Demotion may be given particular status as a recognised disciplinary sanction in a disciplinary code. However, it remains at the disposal of employers as a disciplinary sanction even if the employer has not drafted it into a formal disciplinary code.
A demotion cannot occur before the employer follows a fair procedure, and the employer is not allowed to enforce a demotion upon an employee in a prejudicial manner. Before the demotion is enforced, the employer must consult with the particular employee and allow them to make representations. The employer has to follow a fair disciplinary procedure and provide the employee with the option of demotion as an alternative to dismissal. If an employer fails to follow the consultation route, it may be unfair labour practice.
Case Study
In Van Niekerk v Medicross Health Care Group (Pty) Ltd, an employee was demoted from a managerial position to a clerk. After considering the evidence, the CCMA ruled that the employer should have consulted and counselled the employee before the employee was demoted. In the circumstances, the CCMA found that the employer’s action amounted to a unilateral change in the terms and conditions of the employee’s employment. The employer was accordingly ordered to reinstate the employee to her former position as a manager.
As becomes evident by the above, demotions should be applied as the exception to the standard. Furthermore, employers must also consider potential issues with consistency that could arise when demoting an employee, however, on the rare occasion where demotion could be appropriate and applicable in the circumstances, employers must follow the correct process.
Should you require assistance or advice regarding demotions as a disciplinary sanction please contact Invictus Group on 0861 737 263. [...]
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The prerequisites for a protected strike are set out in section 64 of the Labour Relations Act 66 of 1995, while section 65 sets out limitations on the right strike. Section 65 (1)(d)(i) explicitly states, “No person may partake in a strike (or a lock-out) or in any conduct in contemplation or furtherance of a strike (or a lock-out) if that person is engaged in an essential service.”
“Essential Service” is defined in section 213 of the Labour Relations Act, as—(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population;(b) the Parliamentary service;(c) the South African Police Services;
Paragraphs (b) and (c) are especially designated essential service (reiterated in section 71(10)). Even though paragraph (a) is fairly narrow, there is some uncertainty as to which services fall within the definition. Determining which services are to be regarded as essential is the function of the Essential Services Committee, established by the Minister, in terms of section 70 of the Labour Relations Act. The process which is followed is set out in section 71 accordingly. The Essential Service Committee, from time to time conduct investigations into services offered in various sectors, to determine if the whole or part of such service should be declared as essential.
During an investigation conducted in 2019, a number of services were declared as essential, including but not limited to, the service of road traffic incident management, the detection and reporting of fires and the whole sale and supply of cash in South Africa. It is important that when the committee declares a service essential, providers of such services become aware of the changes to the law, they have a responsibility to ensure that their employees understand the impact that this categorization will have on their right to strike.
Distinction of protected and unprotected strikes
Section 41 of the South Africa Police Services Act 68 of 1995 prohibits members of the South African Police Services from striking or inducing any other member to strike. It empowers the National or Provincial Commissioner to discharge summarily from the South African Police Services any member who strikes or conspires with another to strike.
The wording of the abovementioned section was considered problematic as there were many employees within it whose work was hardly vital in preserving “life, personal safety or health, however the Constitutional Court, in SAPS v POPCRU (2011) 9 BLLR 831 (CC) ruled that the prohibition on strikes is applicable only to members performing policing functions.
There has however been reports of threats by the South African Police force to embark on illegal strikes over the course of the last couple of years. Bheki Cele, the Minister of Police reiterated that it is illegal for the South Africa Police to go on strike as they are categorized as an essential service.
It is important to make a clear distinction between protected and unprotected strikes, because if a strike complies with the statutory requirements in Chapter IV of the Labour Relations Act, the strike is protected and employees who engage in a protected strike are given immunity from delictual claims, claims for breach of contract and are protected against dismissal. However, should employees fall with the definition of essential services as per section 213 of the Labour Relations Act, they are not afforded or entitled to the same protections.
Definition of “strike” according to Labour Relations Act
The definition of the term “strike” in section 213 of the Labour Relations Act includes, “…for the purpose of remedying a grievance or resolving a grievance must be in respect of any matter of mutual interest between employer and employee.” If we have a look at past instances where the taxi industry threatened to strike during the lockdown period, requiring that the government relax social distancing rules to increase the occupancy of the vehicle. The government is not their employer, therefore a grievance or dispute that arises between an industry and the government is not one that arises between employer and employee and by its very nature does not fall within the definition of strike or the ambit of Chapter IV of the Labour Relations Act.
When striking it is important to ascertain whether an employee falls within the services of essential services or not and whether or not the strike is protected and compliant. Should employees elect to proceed with a protected strike, the principle on no work no pay applies, and they will not be entitled to any remuneration during such period.
Should you require any assistance with strike action and whether your company falls within the category of a Essential Services, contact Invictus Group on 0861 737 263 for us to assist you. [...]
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The Minister of Home Affairs had effectively ended the ZEP, which applies to Zimbabwean Nationals working and living in the Republic of South Africa, resulting in numerous Zimbabweans no longer being able to apply for an extension of the ZEP and, as a result, facing deportation should they not have applied and or been granted the different kinds of visas allowing them to continue to stay and work in the Republic.
However, this week, the decision by the Minister of Home Affairs to terminate the Zimbabwean Exemption Permit (ZEP) has been declared unlawful, unconstitutional, and invalid by the High Court, and the Minister has been instructed to follow a fair process complying with the applicable laws.
Accordingly, the ZEP has been extended until June 2024. Pending the outcome of the process, the permit will remain valid for another year. The consequence is no exemption holder may be arrested or deported for not having the correct documentation.
Compliance with Immigration Laws
Employees are urged to take advantage of the extended period provided and apply for the other types of visas and waivers for which they may qualify under the Immigration Act. Failure by employees to apply and obtain such other visas or waivers will lead to such employees being considered illegal in the Republic of South Africa upon the expiry of the period and result in their continued employment by businesses in South Africa is considered unlawful.
Employers are reminded: an employer commits a criminal act by employing or keeping in his/her employ an employee who is illegal in the eyes of the Immigration Act (i.e. possessing no legal documentation which permits residence or working within the Republic of South Africa), South African Police Service (SAPS) appears to be clamping down on businesses who have in their employ an employee(s) who possess no valid documentation – resulting in the arrest of both the ‘illegal’ employee as well as the employer, subject to substantial fines imposed on the employer and the threat of deportation of the employee.
Understanding the Distinction
A distinction should be drawn between foreign employees that fall under the ZEP and those who do not have any valid documentation legalising their stay and approval to work in South Africa. For ZEP workers, the purpose of the ultimatum process is to make employees aware of the imminent expiry of their permits, allowing them to work in South Africa legally and that they are responsible before the expiry date to obtain valid permits and or visas to be considered legal and employable, failing which their employment will be terminated through due process.
Where a foreign employee does not fall under the ZEP (i.e. non-Zimbabwean foreign national), the employee is required to have a valid work permit and or visa. Without such, a valid permit and or visa and or on expiry of any such documentation, the employee is considered illegal and legally unemployable, leaving both the employer and employee criminally in contravention.
No ultimatum and or documentation indicating that the employee is in the process of obtaining their papers negates such culpability and or suspends the illegality of the employment of such an employee. Such an employee should be placed in an incapacity inquiry without delay, where through the fair procedure, the employment relationship is terminated.
Ensuring Compliance and Terminating Employment for ZEP Holders
Employers are urged to ensure ultimatums are issued to employees advising them of the extended period and timeline in which they are required to obtain the required alternative visa or waiver. Employers are further advised to follow up on the progress of such employees applying for different visas, and should they not obtain such alternative visas or waivers, their continued employment must be terminated.
It is of paramount importance to understand: should the ZEP expire, all ZEP holders become illegal immigrants within the Republic of South Africa; this means upon expiry, any company employing ZEP holders, who at the time has not complied with obtaining any other valid VISA to allow them to continue residing and or working in the Republic, can no longer permit legal employment.
In such instances, the employer must follow fair procedure in terminating the employment relationship by conducting an incapacity inquiry to ensure compliance with the Immigration Act and avoidance of criminal proceedings in the personal capacity of the business owner.
Avoid Risks and Seek Assistance
We reiterate that it is not advised to stagger any incapacity inquiries and/or termination of ZEP employees within their workforce in that this poses additional risk to the company and the business owner in his/her capacity.
We strongly encourage employers that should you require any assistance regarding the ZEPs, Final Ultimatum and incapacity inquiries or have any queries, kindly contact our Invictus team on 0861 737 263 or your designated consultant. [...]
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In the wake of recent news headlines, it seems not only public servants have falsified their qualifications to obtain employment, but this has also become fashionable among other job seekers. What recourse does the employer have?
The Law
South African legislation, through the introduction of the National Qualifications Framework Amendment Act 12 of 2019, has made it a criminal offence when people claim qualifications they do not have.
The law broadly states that it is a criminal offence if anyone “falsely or fraudulently claims to be holding a qualification or part-qualification registered on the NQF or awarded by an education institution, skills development provider, QC or obtained from a lawfully recognised foreign institution.”
Case Study – Umgeni Water v Naidoo
In the recent civil claim of Umgeni Water v Naidoo and Another (11489/2017P) ZAKZPHC 80; 1 All SA 857 (KZP) (15 December 2022), it was found that an employee who had a fraudulent chemical engineering degree, had to pay back to his employer the R2.2 million he earned over the eight years he worked there.
Caselaw suggests the provided false information does not necessarily need to relate to a material requirement of the position in question.
Case Study – SA Post Office Ltd v Commission for Conciliation
In SA Post Office Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2442 (LAC), the Labour Appeal Court upheld the dismissal of an employee who, in her application for employment, stated that she had a driver’s license. It was later discovered she only had a learner’s license.
Judge Waglay DJP (as he was then), in delivering his judgement, stated the following: “The fact that performed well at the interview and thus secured the post is irrelevant. It is also of no consequence as to how the discovery was made about her not having a driver’s licence.”
In this case, the employee required a driver’s licence to perform functions related to her position and was dismissed because her dishonesty had allowed her to be employed in circumstances where the company would never have employed her had they known the actual state of affairs.
Case Study – Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC)
Should one discover even minor CV fraud, one would do well to be aware of the case of Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC). In this case, seven years after the employee’s start date, it was discovered that the employee had been untruthful regarding her qualifications. Despite these qualifications not being related to the duties the employee had been appointed to perform, the court found that such dishonesty was sufficient to fairly dismiss the employee.
Judge Basson stated the following in this regard in her judgement: “…even though was an employee of seven years standing and was honest and trustworthy in her work and even though qualifications were irrelevant to her position as a debtors’ clerk at the time of her dismissal, was, in my view, justified to consider her dishonesty as severe enough to have irreparably damaged the unique trust relationship enjoyed by her. It is for the employer to set standards of conduct for its employees. As long as these standards are reasonable, the court will not interfere (see the requirements of item 7 of Schedule 8 to the Act).”
Honesty and Trust in the Workplace
It becomes clear that dishonesty of any kind should raise the question as to whether or not the trust relationship between the parties can survive its discovery. The two cases above illustrate, in considering whether or not to dismiss, the content of the lie is not more important than the fact of the lie.
This does not mean dishonesty provides grounds for immediate or arbitrary dismissal. The Labour Relations Act, together with the common law, still prescribes specific procedures to be followed. Failure to do so may render an otherwise fair dismissal procedurally unfair.
Should your company require assistance with verification of qualification and the process to follow if found fraudulent, contact Invictus Group on 0861 737 263 to ensure that the process complies with all the legalities. [...]
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When a company contemplates retrenching employees, voluntary severance packages (VSP’s) are often offered. In terms of a VSP, an employee volunteers to be or agrees to be retrenched. The purpose of using VSP’s is to mitigate the adverse effects of the formal retrenchment process on the employees. These agreements need to be entered into freely and voluntarily by both parties, and an employee cannot be forced to sign such an agreement. The agreement should be reduced to writing and signed by both parties.
VSP’s are signed in full and final settlement of all claims that the parties may have against each other. Employees have a right to refer disputes to the CCMA and/or Labour Court. However, by agreeing to be retrenched, the employee thus waives their rights to refer an unfair dismissal dispute to the CCMA and/or Labour Court for adjudication. The employee however retains their rights to pursue the company if the company does not comply with any of the terms agreed to in the VSP agreement.
Constitutional Court ruling relinquishing rights to CCMA dispute
In the case of Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another (2016) 37 ILJ 2723 (CC) the Constitutional Court found that a clause in a voluntary separation package in which the parties relinquish their rights to approach the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court regarding any dispute that arises from the work relationship is valid despite section 34 of the Constitution which grants every person the right to access to the courts. The reason for this is that the parties agree that the VSP is signed in full and final settlement of all disputes between the parties.
A VSP cannot however provide the employee with less than what is owed to them in terms of South African law. Employees should furthermore be offered additional benefits to those they would be legally entitled to. Additional benefits could be, for example, two weeks of severance pay for every year worked instead of one, or providing the employee with any form of gratuitous payment over and above the statutory payments.
Labour court ruling on employees and dismissal
In the matter of Hodges v Urban Task Force Investments CC and Others (JR840/12) ZALCHB 295 (7 November 2013) the Labour Court held that an employee cannot waive their rights to a fair dismissal in exchange for payments which are legally owed to the employee. For this reason, a voluntary retrenchment agreement will only be valid and enforceable if the employee is paid or granted a ‘sweetener’ in the form of an amount or benefits in addition to that to which they are legally entitled. Thus, if in terms of a VSP an employee is only paid what would have been owed to them in terms of the law, they retain their right to take the matter to the CCMA and/or Labour Court for an unfair dismissal case to be decided. If companies wish to avoid unnecessary cases referred to the CCMA and/or Labour Court, it is thus imperative to ensure that employees signing VSP’s receive more than what is legally due to them.
The case of SACU and another v Telkom SA SOC Ltd and others JOL 46876 (LC), confirmed that VSP’s are a way for a company to reduce the number of forced retrenchments that might happen at a company. The case further confirmed that section 189 of the LRA does not have a step-by-step sequence in which consultations must take place, and thus the issue of when to offer VSP’s can be discussed and agreed on between the consulting parties.
Should your company contemplate retrenchments and or voluntary severance packages, contact Invictus Group on 0861 737 263 to assist in ensuring that the process complies with all the legalities. [...]
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In light of the current challenging economic climate within South Africa, a question that becomes prevalent is to which extent employers are entitled to vary the terms and conditions of their employees’ employment, if at all.
Another critical question is what the consequences of the employee’s refusal of such change might be. Examples of such changes include salary reductions, reduced working hours or overtime, demotions, and changes to employees’ job descriptions or conditions of work.
Navigating Employment Contract Variations
As a general principle, employers are not entitled to unilaterally amend the terms and conditions of an employee’s employment contract and therefore, most unilateral variations may be disputed as a breach of contract by the employer. In instances like these, the employee has the right to either resile from the contract, sue for damages in terms of the contract or engage in strike action in terms of Section 64 of the LRA.
Therefore, should an employer require any variation to the employee’s terms and conditions for any reason whatsoever, this should be approached and handled with caution and always in consultation with the affected employees.
Constitutional Court Ruling Sets Precedent on Dismissals and Employment Contract Variations
A recent matter before the Constitutional Court addressed the above issue and has since been welcomed by employers, especially in light of the economic crisis caused by the pandemic. In the matter of National Union of Metal Workers of South Africa v Aveng Trident Steel and Another JOL 48801 (CC), the Constitutional Court upheld a Labour Appeal Court decision and created a clear precedent to be applied in similar instances in future.
The Constitutional Court had to rule on whether dismissal would be considered automatically unfair if employees are dismissed as a result of rejecting a demand and subsequent variation in the terms and conditions of their employment that arose as a result of the employer’s operational requirements.
Automatic Unfair Dismissals and Employment Contract Variations: Understanding Section 187(1)(c) of the LRA
Section 187(1)(c) of the Labour Relations Act, 1995 (the “LRA”) provides that a dismissal will be automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer.
In the NUMSA matter, the employer dismissed 733 employees due to operational requirements after they refused to accept altered employment conditions from the employer. These employment variations included restructuring the workforce and redesigning job descriptions, and combining certain functions. The employer argued that the variation of the terms and conditions of their employment was critical in ensuring the future subsistence of the company. However, NUMSA, on behalf of the employees, argued that the dismissals were automatically unfair based on Section 187(1)(c).
The Courts’ Considerations for Fairness
The dismissals were upheld in Court, and in determining this, the Courts held that if the dismissal had taken place regardless of whether or not the employees’ refused the demand, the dismissal would not be automatically unfair.
The Court further held that even where there is evidence suggesting a possibility that the dismissal occurred because the employee refused the demand, it may still be possible for the employer to prove that the dismissal was for a different and more proximate reason that is fair and justifiable.
The primary consideration that seems to have been applied by the Courts throughout the adjudication of the above matter is whether or not the cause of the variation in the employment conditions is genuine and bona fide to the extent that the survival of the business would be jeopardised in the absence of such variation. Should the answer be affirmative, the dismissal will be justified and fair, and the affected employees would have no recourse against the employer.
Therefore, employers are advised to ensure compliance with the necessary legal requirements and required consultation processes to ensure that should the affected employee dispute the dismissal, the employer will be able to prove that the dismissals were effected in a procedurally fair manner and that there had been a genuine and justifiable operational need to change the relevant terms and conditions of employment.
Do not hesitate to contact Invictus on 0861 737 263 for assistance with making changes to the working conditions in the workplace. [...]
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The Minister of Home Affairs effectively ended the ZEP, which applies to Zimbabwean Nationals working and living in the Republic of South Africa, on the 31st of December 2021, resulting in numerous Zimbabweans no longer being able to apply for an extension of the ZEP and as a result face deportation should they not have applied and or been granted the different kinds of visas allowing them to continue to stay and work in the Republic.
Extension of Grace Period
The Minister initially provided a grace period of 12 months ending on 31 December 2022, which was subsequently extended on the 2nd of September 2022, through Immigration Directive 2 of 2022, for a further 6 months ending on the 30th of June 2023.
This grace period has again been extended through Immigration Directive 2 of 2023 for 6 months ending on the 31st of December 2023. During this grace period, ZEP holders are required to regularise their stay through customary immigration laws of the Republic.
Why the further extension?
The Minister took this decision regarding increased visa and waiver applications of more than 1000 daily, allowing the Department of Home Affairs to attend to processing the increased applications.
What does this exemption mean?
As per the Notice posted on the Government Gazette 45727 on the 7th of January 2022:
No holder of the exemption may be arrested, ordered to depart or be detained for purposes of deportation or deported in terms of Section 34 of the Immigration Act for any reason related to him or her not having any valid exemption certificate (i.e. permit label/sticker) in his or her passport. The holder of the exemption permit may not be dealt with in terms of Sections 29, 30 and 32 of the Immigration Act.
The holder of the exemption may be allowed to enter into or depart from the Republic of South Africa in terms of Section 9 of the Act, read together with the Immigration Regulations, 2014, provided that he or she complies with all other requirements for entry into and departure from the Republic, save for the reason of not having valid permit indicated in her or her passport; and
No holder of exemption should be required to produce-
A valid exemption certificate; and
An authorisation letter to remain in the Republic is contemplated in section 32(2) of the Immigration Act when applying for any category of visas, including temporary residence visas.
Employees are urged to take advantage of the extended grace period provided and apply for the other types of visas and waivers for which they may qualify under the Immigration Act.
Failure by employees to apply and obtain such other visas or waivers will lead to such employees being considered illegal in the Republic of South Africa upon the expiry of the extended grace period and result in their continued employment by businesses in South Africa is considered unlawful.
Employers are advised that at the current stage, the continued employment of such employees is considered lawful, and they must advise employees of the extended grace period to ensure that they become compliant sooner rather than later.
Employers are urged to ensure ultimatums are issued to employees advising them of the extended period and timeline in which they are required to obtain the required alternative visa or waiver. Employers are further advised to follow up on the progress of such employees applying for the different visas, and should they not obtain such alternative visa or waiver, their continued employment is required to be terminated upon the expiry of such grace period, through following a fair process.
Should you require any assistance regarding the ZEP’s extension of the grace period and Ultimatums or have any queries, kindly contact our Invictus team on 0861 737 263 or your designated consultant. [...]
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It happens every so often that an employer places an employee on a fixed-term contract for 3-months to gauge their suitability for the job. The question is then asked, are employers allowed to use a fixed-term contract for a probation period?
Challenging the Misuse of Fixed-Term Contracts
In the case of National Union of Public Service and Allied Workers (NUPSAW) V Mfingwana and Others (C251/17) ZALCCT 4 (20 February 2020), the employer, who was a trade union, used a fixed-term contract as a probation period.
The Union employed Mr Mfingwana as an organiser on a fixed-term contract lasting six months from 1 October 2015 to 31 March 2016. The six-month period had come to an end, and the contract was not renewed. The employee, however, continued working for the union.
Unfair Dismissal and the Debate over Reasonable Expectations of Permanent Employment
In July 2016, the union proposed an addendum to the employee’s original contract, backdating and extending it from 1 June to 31 November 2016. The time came in November when the employee was advised that his contract would not be renewed when it expired on 30 November 2016.
The employee claimed to have been unfairly dismissed based on his reasonable expectation of permanent employment. The employee argued that the nature of the position he was in was not temporary, and since he had been allowed to continue working after the expiry of the initial 6-month contract on 31 March 2016, he was to be deemed a permanent employee.
Upon being heard at the CCMA, it was found:
The employer did not provide any justifiable reasons for limiting the duration of the contract;
The nature of the role was not of a temporary duration;
It appeared as if the union was using fixed-term contracts as a probation period, which is not a valid reason for fixing the term of a contract;
If the union had wanted to assess the employee’s performance or suitability for the job, it should have employed the employee on a permanent contract subject to a probation period;
It was not open to the practice of an employer employing someone for over a year before deciding not to renew their contract or to make their contract permanent based on alleged poor performance.
The CCMA found that Mr Mfingwana’s employment was deemed permanent from 1 January 2016, after having served a 3-month fixed term contract for which there had been no justifiable reason. The Labour Court, on review by the employer, confirmed the CCMA’s finding of unfair dismissal and the review was dismissed.
Understanding the Legal Limits of Fixed-Term Contracts
From the above, it becomes evident that an employer’s choosing to use a fixed-term contract as a probationary tool will end up on the wrong side of a CCMA award should an employee refer to unfair dismissal. The Labour Relations Act lists various justifiable reasons for fixing the term of a contract, a probation period not being one of these reasons.
An employer may legally limit the duration of an employment contract for reasons such as:
replacing an employee who is temporarily absent
assisting with a temporary increase of work which will not endure longer than 12 months
a student or recent graduate employee for training and gaining experience
there is a specific project with a limited duration
foreign national with a work permit for a defined period
the employee performs seasonal work
the employee has reached retirement age
Invictus Group can expertly assist employers with the drafting of employment contracts of all natures, as well as advising employers on the correct use of fixed-term contract altogether, thus eliminating any legal risks. Contact Invictus Group on 0861 737 263 for us to assist you. [...]
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The grace period of ZEPs is ending as of the 30th of June 2023!
We have outlined in a previous article the steps to be taken with employees (holding/ in possession of ZEPs) to allow those employees a reasonable opportunity in which to make applications for alternate paperwork, which may allow those employees to reside and work within the Republic of South Africa legally.
The Criminality of Employing Undocumented Workers
Employers are reminded that an employer commits a criminal act by employing or keeping in his/her employ an employee who is illegal in the eyes of the Immigration Act (i.e. possessing no legal documentation which permits residence or working within the Republic of South Africa), South African Police Service (SAPS) appears to be clamping down on businesses who have in their employ an employee(s) who possess no valid documentation – resulting in the arrest of both the ‘illegal’ employee as well as the employer, subject to substantial fines imposed on the employer and the threat of deportation of the employee.
A distinction should be drawn between foreign employees that fall under the ZEP and those who do not have any valid documentation legalising their stay and approval to work in South Africa. For ZEP workers, the purpose of the ultimatum process is to make employees aware of the imminent expiry of their permits, allowing them to work in South Africa legally and that they are responsible before the expiry date to obtain valid permits and or visas to be considered legal and employable, failing which their employment will be terminated through due process.
Risks, Obligations, and Consequences
Where a foreign employee does not fall under the ZEP (i.e. non-Zimbabwean foreign national), the employee is required to have a valid work permit and or visa. Without such, a valid permit and or visa and or on expiry of any such documentation, the employee is considered illegal and legally unemployable, leaving both the employer and employee criminally in contravention and no ultimatum and or documentation indicating that the employee is in the process of obtaining their papers, negates such culpability and or suspends the illegality of the employment of such employee. Such an employee should be placed in an incapacity inquiry without delay, where through fair procedure, the employment relationship is terminated.
At present, there are no extensions of the ‘grace period’ given to ZEP holders whose documentation expired on or after December 2021, meaning the 30th of June 2023, as it stands, is the cutoff date for all ZEP holders and we strongly advise that employers take the necessary action upon to avoid culpability.
Understanding the Implications of ZEP Holders Becoming Illegal Immigrants in South Africa
It is of paramount importance to understand that as of 1 July 2023, all ZEP holders become illegal immigrants within the Republic of South Africa; this means that from the 1st of July 2023, any company employing ZEP holders, who at that time has not complied with obtaining any other valid VISA to allow them to continue residing and or working in the Republic, can no longer permit legal employment. In such instances, the employer must follow fair procedure in terminating the employment relationship by conducting an incapacity inquiry to ensure compliance with the Immigration Act and avoidance of criminal proceedings in the personal capacity of the business owner.
We reiterate that it is not advised to stagger any incapacity inquiries and/or termination of ZEP employees within their workforce in that this poses additional risk to the company as well as the business owner in his/her capacity.
We strongly encourage employers that should you require any assistance regarding the ZEPs, Final Ultimatum and incapacity inquiries or have any queries, kindly contact our Invictus team on 0861 737 263 or your designated consultant. [...]
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Employees are often under the impression and misconception that their social network sites are private and detached from their employment. These employees may feel secure with the guise offered by the divide between work and personal life, especially during the festive season when most take leave and spend less time in their working environment. That said, dismissals on account of social media misconduct are becoming more and more evident.
An Employee’s Offensive Comments and the Consequences for EDCON
In the matter between EDCON Limited v Cantamessa and Others, the Labour Court found that a racist comment made by an employee while on leave constituted a dismissible offence. The Labour Court crystallised the principle that it is within an employer’s right to discipline employees for misconduct outside the workplace, provided there is a connection between the employee’s misconduct and the employer’s business.
In this particular case, the employee had identified herself as a specialist buyer for EDCON on her personal social media account, wherein she posted comments referring to former president Jacob Zuma to the effect of:
“…and listening to these stupid f@!k1ng monkeys running our country and how everyone makes excuses for that stupid man we have to call a president…”
The employee posted this comment just before a cabinet reshuffle in December 2015. These comments that the employee posted received a lot of attention on social media, and there was a formal complaint laid by one of the employer’s customers against the employee.
A Balancing Act
The Labour Court considered the established principle that employers are precluded from taking disciplinary action against employees for misconduct outside the workplace and their ordinary hours of work. It is important to note – the court drew a distinction, in this particular context, the actions of the employee received the attention of the public and impacted the reputation of the employer negatively, as the customer base of the employer was primarily black people.
The employer was associated with the employees’ conduct which opened up the employer to reputational damage.
It is important to note that an employee does not need to identify themselves as an employee of a specific company for them to come into conflict with the employer’s disciplinary policies and code of conduct. In Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith (2014) , the employee made racist remarks against their employer and colleagues without mentioning the employer’s name.
The employee argued that the employer ought to prove how the employee’s comments could bring the company’s name into disrepute, where its name was not mentioned. The arbitrator found that the issue was whether a reasonable inference could be drawn from the remarks that they were directed at the employer, thus creating a connection between the employee’s misconduct and the business of the employer.
Implications for Employees and Employers in Liability and Reputation
Social media misconduct not only opens the employee to dismissal but also exposes employers to liability for discrimination, harassment and defamation claims. In the case, Pehlani v Minister of Police (9105/2011) ZAWCHC, the High Court held that an employee doesn’t need to be acting within the course and scope of their employment to fall foul, only if a connection can be drawn between the misconduct of the employee and the employer’s company.
Employers must encourage employees to be watchful of the company’s social media policies and procedures, and more importantly, their social media conduct and failure to adhere to these policies and procedures are likely to have devastating effects for both the employer and the employees.
Please feel free to contact our offices at 0861 737 263 should you have any queries or require any assistance with your social media policies or for us to conduct your disciplinary inquiries. [...]
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Discrimination occurs when an employer treats a person differently based on physical attributes or other factors such as religion or political belief. The act of differentiation may, at times, be fair, but it is more commonly found that differentiated treatment is unfair.
Appearance-based discrimination, or lookism, is the discriminatory treatment of people considered to be physically unattractive or undesirable in appearance and is becoming a more rampant issue in the workplace daily.
Examining employee protections against appearance-based discrimination
There are different grounds upon which this arbitrary discrimination is based and may include physical attractiveness, grooming, tattoos, piercings, weight, and dress code of a specific employee. Although this form of discrimination on the employer may not always be conscious, their subliminal appearance preferences may infiltrate their employment approach, leading to employees who do not meet specific appearance standards suffering discrimination.
The question that comes to light is to which extent employees, specifically in South Africa, have protection against this phenomenon. Although the South African legislature is relatively underdeveloped in this area in comparison to the rest of the world, the Courts have touched on this issue in a number of cases. South Africa does not have a specific law that prohibits discrimination based on appearance.
Case study – Hoffmann v SAA
In the labour sphere, a balancing act is required between the rights and interests of employer and employee. This consideration was highlighted in Hoffmann v SAA 2001 SA 1 CC, 2000 11 BClR 1211 CC. The Constitutional Court held that SAA had infringed the employee’s constitutional right not to be unfairly discriminated against. The Court ordered that the employer immediately make an offer of employment to the employee, and the employer was ordered to pay the costs of the applications both in the High Court and the Constitutional Court.
Case study – Harksen v Lane
In the matter of Harksen v Lane NO and Others (CCT9/97) ZACC 12, 1997 (11), the Constitutional Court stated that fairness was assessed by determining whether there has been an infringement of an individual’s fundamental human dignity or impairment of a severe comparable nature. It is proposed that evaluating an employee based on their appearance goes to the basis of an individual’s dignity, resulting in gross unfairness.
Case Study – IMATU and Others v City of Tshwane Metropolitan Municipality and Others
In IMATU and Others v City of Tshwane Metropolitan Municipality and Others (44390/2014) ZAGPPHC 412, the Court considered a matter where two female recruit’s employment was terminated for refusing to cut their hair “as short as that of men.”
They were subsequently dismissed because they refused to obey the lawful instruction to cut their hair. The court decided in favour of the recruits and ordered their reinstatement from the programme, which clearly shows the balancing act between the freedom of expression of an individual and the business or operational needs of an employer.
It is clear from the Labour Appeal Court’s ruling in Department of Correctional Services v POPCRU & Others 2013 4 SA 176 SCA that employers should have due regard for the reasonable accommodation of diversity of employees in the workplace unless the employee in question clashes with the inherent requirements of the position in which they are employed.
Legal recourse and employer policy recommendations
Employees in South Africa can bring an unfair discrimination application under the Employment Equity Act, alleging that the form of appearance discrimination falls under an unlisted ground of unfair discrimination, where the employer will have to raise a legitimate defence to the alleged discrimination.
As discrimination may be fair or unfair, every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. It is therefore suggested that the employer protects itself by implementing a possible workplace policy dealing with appearance discrimination in the workplace.
Contact Invictus on 0861 737 263 for any queries/assistance regarding Appearance Discrimination in the Workplace and for us to conduct your inquiries. [...]
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