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INVICTUS GROUP

Industrial Relations And Human Resources Management Services

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

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

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

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

ABOUT US

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

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An employer must pay the Unemployment Insurance Fund (UIF) for an employee who works more than 27 hours a month. The employer must register as a contributor to UIF and register all employees as beneficiaries. Upon registration, the employer will receive a contributor number and must use it when paying the contributions.  The employer deducts 1% from the employee’s salary, which is added to the employer’s 1% contribution and paid to the UIF. 2% is contributed towards the employee’s UIF.  Why must an employer pay UIF?  Compliance with the Unemployment Insurance Fund (UIF) is vital for an employer, as it provides short-term financial support to employees during ill, maternity leave and unemployment. Key compliance obligations for employers UIF Registration: Businesses must register with the UIF and obtain a UIF reference number. This unique identifier is used in all interactions with the UIF, including submitting employee information, making contributions, and claiming benefits on behalf of employees. An employer must also register with the UIF, and it would receive a contributor number. This number is used when paying contributions, introducing new employees, and making employee claims.
 Compulsory Contributions: Employers are required to enrol their employees in UIF (Unemployment Insurance Fund) contributions. The employer and the employee are obligated to contribute monthly, determined by the employee’s earnings. The employer must precisely compute and remit these contributions to the UIF through the monthly Emp201 declaration submitted via the SARS e-filing platform.
 Declaring Employees: Employers are responsible for providing precise employee details to the UIF. This encompasses information such as employees’ names, ID numbers, earnings, and dates of employment. Ensuring timely and accurate submissions guarantees that UIF records remain current and accurate.
 Employee UIF Claims: When employees fulfil specific eligibility criteria, such as unemployment, illness, or maternity leave, they become eligible to claim UIF benefits. Employers play a vital role in assisting these claims by furnishing precise and prompt information to the UIF on behalf of the affected employees.
 Employer UIF Returns: Employers are required to provide monthly reports to the UIF outlining the contributions made for each employee. These reports encompass details such as the number of employees, their earnings, and the total UIF contributions. Consistent and precise reporting is imperative to ensure compliance with regulations.
 Keeping Record: Employers must retain precise records of UIF contributions, employee data, and pertinent documentation for at least five years. These records may undergo audits conducted by the Department of Labour, and failure to comply could lead to penalties.
 What are the risks involved when an employer does not contribute to UIF? Ensuring compliance with UIF regulations is crucial for South African businesses, not only as a legal requirement but also to safeguard employees’ well-being. Failure to meet UIF obligations can lead to penalties, legal repercussions, and company reputation damage.  Employers must stay informed about UIF rules and maintain accurate records to support the system, which provides financial assistance to employees during difficult times, promoting a more stable workforce. It’s the employer’s responsibility to pay over the UIF contributions for all employees, and failure to do so can result in personal liability for the outstanding amount. Non-payment is considered an offence, with the UIF imposing a 10% penalty on unpaid contributions and interest calculated by the finance committee.  Contact Invictus today for expert legal advice and guidance on mandatory labour compliances. For more information, contact our call centre at 086 173 7263 or email us at admin@invictusgroup.co.za.  [...] Read more...
Ramadan and Eid are significant times for Muslim employees, encompassing religious observances, fasting, prayers, and communal gatherings. Understanding the importance of these occasions and offering support can build a more inclusive and respectful workplace.  This article explores the origins of Ramadan, the obligations during this month, and practical ways employers can accommodate and support their Muslim employees during these sacred times. The origin of Ramadan It is believed that Ramadan is the most holy and sacred month of the year in Islam. This is so because it was during the month of Ramadan that the angel Gabriel appeared to the prophet Muhammad and revealed the holy Qur’an, the religious book of Islam. The night that the holy Qur’an was revealed to the prophet is called Laylat-Ul-Qadr, which directly translated means the night of power.  Muslims show respect and appreciation for this night and the revelation of the holy Qur’an by fasting during Ramadan every year to commemorate the holy Qur’an. Ramadan is, therefore, considered the most crucial month in Islam and carries blessings and obligations for Muslims worldwide.  As a Muslim, one strives to abide by all 5 pillars of Islam, which are: “Profession of faith (shahada)” is the belief that there is no god but Allah, the God of Muhammad, the messenger and all. 
 “Prayer (salat)” takes place five times a day at set times every day and increases during Ramadan. “Donation (zakat)” is feeding the poor and giving to those in need. “Fasting (sawm)” is the abstention from eating and sometimes drinking from sunrise until sunset daily during the month of Ramadan and certain other days of the year that are favourable to do so religiously. “Pilgrimage (hajj)” – the most important, visiting Mecca in Saudi Arabia, the birthplace of the prophet Muhammad and Islam.  Obligations during Ramadan During Ramadan, Muslims fast, worship, have communal gatherings, and spiritually develop themselves and their families. During this month, the holy Qur’an is expected to be recited and memorised in its entirety and taught and explained. To achieve this, every night during this month, Muslims pray and read from the holy Qur’an in the Mosque, with the Imam (the Islamic preacher) teaching the meaning of the content.  A Muslim must fast from sunrise until sunset, read and study the holy Qur’an, and pray the five basic prayers during the day and additional prayers at night after breaking their fast. During Ramadan, Muslims are also required to donate and do good deeds. Breaking the fast (iftar) during Ramadan occurs around sunset (Magrib) and involves enjoying a meal with family and loved ones. Gatherings at Iftar are believed to be a blessing, and as such, many people create feasts for families, friends, and even strangers to eat together.  What is Eid? Ramadan is usually followed by a celebration of breaking the fast, initiated by the prophet Muhammad in Medina, where he resided. The celebration is called Eid-ul-Fitr. Eid-ul-Fitr starts with a morning Eid prayer and the everyday prayers of a Muslim’s day. This Eid prayer is done in large groups, followed by feasts and celebrations. The second Eid, which is celebrated by Muslims, is Eid-ul-Adha, which is the Eid of sacrifice. It is believed by Muslims that Ibrahim (Abraham) was willing to sacrifice his son as an act of obedience to God’s command and that in the absence of sacrificing his son, he was given a lamb to slaughter as a sacrifice. This Eid honours the willingness of Ibrahim to sacrifice his son to God, and in commemoration, Muslims usually slaughter a lamb or a sheep as a sacrifice. The meat of the animal that is killed is divided into three portions: one portion is to be consumed by the family who has offered the animal, one portion is to be consumed by the friends and neighbours/relatives of the family who have provided the animal, and the third portion is to be distributed amongst the poor and needy within the community.  Eid-ul-fitr typically lasts three to four days, while Eid-ul-Adha (the bigger of the two) lasts four to five days. Celebrations differ from family to family and culture to culture. What is shared among all is that in the workplace, it is common for Muslims to take one day of leave for Eid. The importance of Eid can be compared to that of Christmas for Christians, and as such, many Muslims take the day off from work or school and just participate in the celebrations after taking part in the special morning prayer.  Discussions about the recognition of other religious holidays within the Republic of South Africa Religious spokesperson Moulana Abdullah Khan of the Jamiatul Ulama KZN stated in 2015 that he does not support that every religious holiday should be a public holiday. He added that South Africa is a multi-cultural and multi-religious society, and recognising the holidays of all religions and cultures as public holidays will result in a loss of revenue in South Africa as there are far too many holidays to be recognised.  The Basic Conditions of Employment Act (BCEA) The BCEA provides that there are set public holidays which employees are entitled to take off and that if they are required to work on these public holidays, there needs to be an agreement between the employer and employee providing for such. It is important to note that the BCEA has yet to be amended or changed to date, and as such, employees of a different faith do not have an automatic right to a holiday should it be related to a religious holiday.  The law in South Africa The Constitution of the Republic of South Africa (the Constitution):
 Section 9(3) of the Constitution restricts the state from unfairly discriminating against any person based on any ground, including religion. Section 9(4) of the Constitution provides that any person is prohibited from unfairly discriminating against any other person based on any ground, including religion. Section 15(1) of the Constitution provides that everyone has the right to freedom of religion. Section 31(1) of the Constitution provides that people belonging to a religious community may not be prohibited from practising their religion. Caselaw – TDF Network Africa (Pty) Ltd vs Faris 2019 40 ILJ 326 (LAC):
 In this case, it was stated that section 6(1) of the Employment Equity Act 55 of 1988 prohibits direct or indirect unfair discrimination against any employee based on the grounds of religious beliefs.  The court held that:  “ithout question, an employment practice that penalises an employee for practising her religion is a palpable invasion of her dignity because it supposes that her religion is not worthy of protection or respect. It is a form of intolerant compulsion to yield to an instruction at odds with sincerely held beliefs on the pain of losing employment. The employee is forced to make an unenviable choice between conscience and livelihood. In such a situation, the dictates of fairness and our constitutional values oblige the employer to exert considerable effort in seeking reasonable accommodation.” (par 45) Caselaw – FAWU & Others vs Rainbow Chicken Farms (2002) 21 ILJ 615 (LC):
 This matter involved Muslim butchers who were dismissed for taking unauthorized leave for Eid. It was found that the employees, who were all Muslim butchers specifically employed to slaughter chickens (according to the Halaal standards) and refused to work on Eid, were not unfairly dismissed since they were absent for a religious holiday and not on an official public holiday.  The Labour Court held that the employees were not unfairly discriminated against because of their religion and that there would have been discrimination if the employer had permitted some employees to take leave and not others.  In this case, specifically, it was crucial for operational requirements that all employees be present. If they were all permitted to take the day off for Eid, this would have resulted in the factory being inoperable and having to close down completely. The court, therefore, held that “requiring employees to work on religious holidays that are not official public holidays is justifiable on operational grounds.” How can an employer accommodate a Muslim employee in the workplace?  A balance needs to be reached between the interests of the employer and the employee, and an agreement must be reached accordingly. On the one hand, Muslim employees may be refused a day off for Eid due to operational requirements, which will not be considered unfair by the Labour Court. However, this can only be determined on a case-by-case basis.   On the other hand, nothing stops an employer from understanding and making alternative arrangements for an employee of a different faith by agreement. Although the law is clear, to respect the religion of Muslims, an employer should reach an agreement with their employees.  The employer could, for example, allow an employee of a Muslim faith to take a day off for Eid (one for each Eid) and enable an employee further to finish work one hour earlier during the month of Ramadan. Due to the employee, the time given off could be recuperated from accrued leave days.  It is important to note that the current position in South Africa is that employees of a different faith, such as Muslims and Hindus, benefit from the public holidays as declared by South African law. If they require leave for their religious holidays, the common practice is to apply for annual leave, failing which unpaid leave is at the discretion of the employer. In conclusion, it is clear that there needs to be a balance between the rights of the employer and the employee when considering time off for a religious holiday and that there has to be a mutual agreement between both the employer and the employee, taking into consideration all relevant factors. Such an agreement should be discussed at the onset of an employment relationship with an employee of a different religious faith. Contact Invictus today for expert legal guidance & advice on how to accommodate your Muslim Employee this coming Eid. For more information, contact our call centre at 086 173 7263 or email us at admin@invictusgroup.co.za [...] Read more...
Insubordination in the workplace is often a serious matter because it can affect working relationships between an employer and employee, undermine the structural lines of authority in a workplace, and it could have long-term adverse effects on team morale within a company. However, not every disagreement in the workplace can be labelled as insubordination, and employers are often left perplexed as to what constitutes insubordination, especially when insubordination is of such a gross nature that it would warrant dismissal. What is insubordination? In layman’s terms, insubordination occurs when an employee refuses to accept the authority of their employer or of a person in a position of authority over an employee, such as a line manager. Insubordination usually occurs when an employer gives an employee a reasonable instruction that is capable of being performed within the ambit of the employee’s job or course and scope of employment, and the employee refuses to accept this authority or refuses or fails to obey the instruction. In a legal context, the offence of insubordination has been described in several cases over the years. Case study – Palluci Home Depot (Pty) Ltd v Herskowitz and Others One of the best examples of such a description can be found in Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511, where the Court stated that: The offence of insubordination in the workplace has been described as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority. In some cases, defiance of an instruction may indicate a challenge to the employer’s authority, but this is not so in every case. Insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction. When does insubordination become gross insubordination, and when will it justify dismissal? Schedule 8 of the Labour Relations Act, 66 of 1995 (also known as the Code of Good Practice) lists gross insubordination as a permissible ground for dismissal, but Item 3(4) of this Schedule lists a vital prerequisite as far as dismissal for this conduct is concerned, and it states the following: Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is severe and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. From this Item, one can deduce that the severity and gravity of the misconduct play essential roles when a distinction stands to be made between insubordination and gross insubordination. Fortunately, our courts have elaborated on key considerations for employers before they dismiss an employee for alleged insubordination. In NUMSA & Another v Kromberg & Schubert (Pty) Ltd (2008) 29 ILJ 1343 (BCA), for example, the court stated that the alleged insubordination must be serious, persistent, and deliberate and that the employer must adduce proof that the employee was in fact guilty of defying an instruction. Case Study – Independent Risk Distributors SA (Pty) Ltd (JR 1906/19) The case of Independent Risk Distributors SA (Pty) Ltd (JR 1906/19) is a practical example of how our courts deal with insubordination. In this case, the employer had dismissed their sales representative for gross insubordination after the latter had allegedly challenged or undermined the authority of the company’s CEO during a staff meeting when the sales representative had questioned and/or challenged the instruction issued to them by the CEO in the presence of their colleagues. The CEO instructed all the sales representatives present to go home, reflect on their performance, and return to the office the following day. The employee allegedly proceeded to challenge and undermine the CEO’s authority. During the arbitration proceedings, and after considering the evidence and witness statements, the arbitrator concluded that the employee’s dismissal was unfair and ordered the employee reinstated. From the witness statements on behalf of the employer, it became clear that the employee had questioned the CEO in a problematic manner and that the employee asked questions, and whenever the CEO tried to speak, the employee interrupted the CEO with an unacceptable and disrespectful tone. However, one witness stated that the employee asked questions after the CEO gave the instruction but that the employee’s conduct was not inappropriate. The employer applied for a review of this decision, and the Labour Court aptly laid down key considerations during its enquiry into the gravity of the insubordination concerned, namely that it must consider the employer’s action before the deed, the reasonableness of the instruction, and the presence of wilfulness by the employee. The Labour Court held that dismissal is reserved for all instances of gross insubordination, or the wilful flouting of an employer’s instructions and that a single act of defiance by an employee is insufficient for an employer to conclude that insubordination had occurred. As for gross insubordination, the Court held that the conduct had to be severe, persistent, and deliberate, and, according to the Labour Court, this was not the case in this matter. Conclusion From the Labour Court’s ruling in Independent Risk Distributors SA (Pty) Ltd (JR 1906/19), it is evident that a single instance of insubordination is not always reason enough to dismiss an employee. For dismissal to be justified, each case must be examined on its own merits whilst bearing in mind that dismissal is usually reserved for instances where the insubordination was severe, persistent, and deliberate enough to render any further working relationship intolerable. If you would like to find out more about your rights as an employer and on what grounds you have for fair dismissal, then please feel free to contact Invictus Group at 086 173 7263 or email us at admin@invictusgroup.co.za [...] Read more...
The new Collective Agreement of the Bargaining Council for Restaurants, Catering, and Allied Trades (BCRCAT) in Johannesburg was released on April 26, 2024. This development aims to update and enhance labour relations within the hospitality industry, addressing long-standing challenges and setting the stage for improved working conditions and business operations. The new Collective Agreement introduces adjustments to the cleaning and transport allowances, modifications to minimum working hours, an increase in the bargaining council levy, a higher night shift allowance, and notable increments in minimum wage rates across various job categories. These reforms are designed to foster a more equitable and productive working environment, reflecting the evolving needs of both employees and employers in this dynamic and challenging industry. Some key changes restaurant owners can expect to implement starting on 1 June 2024: Cleaning allowance
 This amount will increase from the current amount of R100.00 per month / R23.08 per week to the amount of R110.00 per month/ R25.39 per week. Hours of work
 The minimum number of hours permanent employees are required to work will increase from the current 130 to 135 per month. The maximum number of hours, 195 per month, will remain the same, with overtime still capped at 40 hours per month. Transport allowance
 The current “night hours” for transport will change from 22h30 to 21h30.The transport allowance will also increase from R200.00 per month/ R 46.16 per week to R230.00 per month until May 31st, 2026, and then R240.00 per month thereafter. Bargaining Council levy
 The levies required to be paid by both the employer and every employee are R10.00 (employer), R6.00 (employee) for Council Expenses, and R4.00 for Council Admin Expenses.  This will increase to R11.00, R6.50 for Council Expenses, and R4.50 for Council Admin Expenses until May 2026 and then to R12.00, R7.00, and R5.00, respectively, from June 2026. Night shift allowance
 Employers are currently expected to compensate staff who work from 18h00 to 06h00 with 0.88c per hour, which has now increased to R1.00 per hour. Minimum wage
 The following increases will be implemented from 1 June 2024: Category / ClassCurrent Rate – 31/05/202401/06/2024 – 31/05/2025Chef ManagerR 47.07R 50.36Assistant ManagerR 33.03R35.34BartenderR 29.35R 31.40CashierR 29.35R 31.40ClerkR 29.35R 31.40Security GuardR 29.35R 31.40SupervisorR 29.35R 31.40Assistant BartenderR 27.58R28.83Assistant CashierR 27.58R28.83Head CookR 27.58R28.83Head WaiterR 27.58R28.83Head Wine StewardR 27.58R28.83Management TraineeR 27.58R28.83ReceptionistR 27.58R28.83Kitchen SupervisorR 27.58R28.83Counter AssistantR 27.58R 28.76Part-time DriverR 27.58R 28.76Waiter / Wine StewardR 27.58R 28.76Employee not elsewhere specifiedR 27.58R 28.76Motor vehicle driver(s)R 27.58R28.85(a) Extra HeavyR 27.58R28.85(b) HeavyR 27.58R28.85(c) LightR 27.58R 28.76Baker / CookR 27.58R 28.76Catering AssistantR 27.58R 28.76Delivery EmployeeR 27.58R 28.76General AssistantR 27.58R 28.76Watchman / Security GuardR 27.58R 28.76 All further requirements not stipulated (ie: clauses pertaining to leave, etc) are to remain the same as they are aligned with the Basic Conditions of Employment Act 75 of 1997. For employers, these changes necessitate careful planning and implementation to ensure compliance and to foster a more equitable and productive work environment. Contact The Invictus Group at admin@invictusgroup.co.za or call our offices at 086 173 7263 for guidance on complying with the new BCRCAT stipulations. [...] Read more...
Section 188 (1) of the Labour Relations Act 66 of 1995 (‘LRA’) states that; “a dismissal which is not automatically unfair is still unfair if the employer fails to prove – •(a) That the reason for the dismissal is a fair reason – 
•(i) Related to the employee’s conduct or capacity; or 
•(ii) Based on the employer’s operational requirements; and 
•(b) That the dismissal was effected in accordance with a fair procedure.”
 It should be borne in mind that dismissal and the procedures followed in accordance with that are regulated mainly by internal company policies. However, it is sometimes possible to deviate from dismissal policies and procedures; for the sake of this article, let’s consider both options:  1 – Where internal dismissal policies and procedures exist Riekert v Commission for Conciliation Mediation and Arbitration and Others (JR686/03) ZALC 90; 4 BLLR 353 (LC); (2006) 27 ILJ 1706 (LC) (28 September 2005) the Court found that the employer had an extensive disciplinary code which it had deviated from in the dismissal of an employee, and subsequently held, on review, that “the CCMA arbitrator had been wrong in accepting the employer’s deviation from its code in the absence of any compelling reason for such deviation.”  As far as internal disciplinary policies and procedures act as guidelines, it is of the utmost importance that employers stay within the fundamentals contained therein. Without compelling reasons, an employer may not simply disregard its internal policies and procedures and dismiss an employee whichever it deems fit. Where internal policies and procedures are entrenched, the employer is bound to that and should follow its dismissal procedures accordingly.  2 – Where there are no internal dismissal policies and procedures Item 4 of Schedule 8 of the Code of Good Practice on Dismissals describes a fair dismissal procedure as “the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.  The employee should be allowed to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken”.  Common law, as codified by the Code of Good Practice, dictates that an employee MUST be allowed to be heard for a dismissal to be considered fair. There is no statutorily imposed approach that should be followed before dismissing an employee, primarily where compelling evidence and circumstances exist in support of a dismissal. 3 – Case Law Case law, such as Steenkamp and Others v Edcon Limited (CCT29/18) ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); 11 BLLR 1189 (CC) (30 April 2019), supports this stance in laying out that the onus placed upon an employer when dismissing an employee is at a basic level and should one determine that fair process was followed, albeit not in accordance with ‘traditional’ dismissal procedures, such a dismissal will be under Section 188 of the LRA and thus considered fair. 4 – Fair procedure  Typically, the employer should investigate whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed to state a case in response to the claims. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision and provide the employee with written notification.  Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should only be instituted by first informing and consulting the trade union.  If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction to the Commission or any dispute resolution procedures established in terms of a collective agreement.  In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.  An employer CAN NEVER dismiss an employee without having held some form of hearing/inquiry/investigation; the nature of that hearing/inquiry/investigation and its fairness would then be open to interpretation. For assistance in navigating corrective disciplinary action or advice on proper labour procedures, email us at admin@invictusgroup.co.za or call our offices at 086 173 7263. [...] Read more...
Success in navigating South Africa’s BBBEE landscape hinges on effective planning and strategic implementation. In this instalment, we explore crucial steps for businesses to maximise empowerment outcomes. In our previous article, we discussed each aspect of the BBBEE Scorecard. In this follow-up, we’ll focus more on early strategy development, targeted fund allocation, and focused initiatives that allow companies to ensure their efforts contribute meaningfully to economic transformation.  Having a clearly defined strategy is paramount for businesses seeking to navigate the intricacies of BBBEE compliance and maximise their empowerment outcomes. A well-articulated strategy provides direction, clarity, and alignment with organisational objectives, ensuring that empowerment initiatives are purposeful and effective.  Additionally, leveraging the expertise of credible management companies further enhances this process by tapping into specialised knowledge, experience, and resources. These companies deeply understand BBBEE regulations, best practices, and emerging trends, enabling businesses to navigate compliance complexities with confidence and precision. By entrusting strategic planning to reputable management firms, companies can streamline their empowerment efforts, mitigate risks, and optimise their impact on economic transformation and societal upliftment. Allocating funds timeously to the right projects Allocating funds to suitable projects early on in the financial year will ensure that they yield sustainable outcomes; this is essential for businesses committed to driving meaningful impact through BBBEE initiatives.  Sustainable outcomes ensure the efficient utilisation of financial resources and foster enduring socio-economic benefits, such as job creation, skills development, and economic empowerment. Moreover, investing in sustainable projects aligns with the principles of responsible business practices and contributes to the organisation’s overall resilience and competitiveness. Focusing on enterprise development Enterprise Development (ED) is a fundamental pillar of BBBEE compliance. It emphasises the cultivation of small, black-owned enterprises to foster economic sustainability and inclusivity. Effective ED structuring necessitates the identification of viable opportunities, targeted capacity-building interventions, and sustained support mechanisms to bolster the resilience and viability of beneficiary enterprises. Elevating social development initiatives Social Development (SD) initiatives constitute another cornerstone of BBBEE compliance, aimed at addressing societal inequities and fostering community upliftment. By prioritising SD projects, businesses can affect tangible social change while accruing requisite BBBEE points. Structuring SD initiatives entails meticulous needs assessment, stakeholder collaboration, and the implementation of sustainable solutions that engender enduring societal benefits. Collaborating with Invictus Group Strategic partnerships with established service providers can streamline processes and augment outcomes when navigating the complexities of BBBEE compliance and empowerment initiatives. Invictus Group emerges as a distinguished ally, offering tailored solutions to fortify businesses’ compliance endeavours, sourcing and designing projects, and driving substantive empowerment outcomes. With a demonstrated commitment to excellence and innovation, Invictus Group empowers enterprises to navigate the intricacies of BBBEE compliance with confidence and efficacy. Be sure to reach out before submission day! We’re here to assist you throughout the entire financial year to ensure compliance is as effortless as possible. Speak to Invictus Group now and ensure that your initiatives are strategically aligned and effectively implemented. If you would like to find out more about BBBEE Compliance and whether or not your business qualifies for incentives, then please feel free to contact Invictus Group. [...] Read more...
The significance of early engagement with BBBEE (Broad-Based Black Economic Empowerment) compliance efforts cannot be overstated. By acting promptly and efficiently to structure empowerment initiatives in alignment with BBBEE codes and scorecards, you not only mitigate compliance risks but also unlock strategic advantages and growth opportunities.  Delaying such endeavours compromises the ability to leverage empowerment as a competitive differentiator and impedes the realisation of long-term organisational objectives. The scorecard explained The BBBEE codes delineate multifaceted criteria, each carrying distinct weightings that collectively shape your company’s empowerment rating. Strategic alignment with these criteria demands meticulous planning and execution, ensuring enterprises maximise empowerment outcomes while enhancing their competitive standing. The BBBEE Scorecard serves as a comprehensive framework for evaluating and measuring a company’s level of compliance and commitment to economic transformation in South Africa. It comprises various elements, each designed to assess different facets of empowerment and inclusion.  Some elements are considered priority elements, which means that one would need to achieve at least 40% of the score set out in the scorecard for the element. Failure to accomplish the subminimum of one of these priority elements leads to being discounted a level. It should be noted that should you fail to meet two or more of these subminimums, the discount shall only be applied once.   Exploring each aspect of the BBBEE Scorecard 1. Ownership: This is considered a priority element. It assesses the extent to which black individuals own and control the company. It considers both direct and indirect ownership and the voting rights associated with such ownership.  Various ownership vehicles can be utilised, such as direct shareholding by previously disadvantaged, shares can be held in a trust fund of which either previously disadvantaged employees or previously disadvantaged individuals are the beneficiaries, or a company with majority black shares can also hold shares in a measured entity. 2. Management control: Management Control evaluates the representation of black people in management positions within the company. It looks at the composition of the board and executive leadership, as well as the decision-making authority held by black individuals, and the composition of the senior management, middle management, and junior management. This is measured against the economically active statics and measured against the guidelines as set out in the Employment Equity Act. 3. Skills development: Skills Development is considered a priority element that measures the company’s investment in training and development initiatives to improve black employees’ skills and qualifications. This includes formal training programs, mentorship opportunities, leadership opportunities, apprenticeship opportunities and support for further education.  The target is calculated at 3 – 6 % of a measured entity’s annual payroll. This would depend on whether a measured entity is considered a qualifying small enterprise (3%) or a generic enterprise (6%) according to its turnover and the sector thresholds set out in the various sectors’ BEE codes of good practices. 4. Enterprise and supplier development: This element drives B-BBEE compliance; a measured entity is required to spend 80% of their cost of sales on B-BEE compliant companies, and cost can be allocated towards this 80% according to a supplier B-BBEE compliance rating between a level 1 to 8 for a level 8 supplier, one can allocate 10% of the total spent with the supplier towards the 80% spent target and a 135% total paid for a level 1 supplier. A measured entity can force a supplier to become B-BBEE compliant for this element or risk losing the business relationship with the measured entity. The element also focuses on the company’s efforts to support and develop black-owned businesses. It includes initiatives such as supplier development programs and enterprise development programs. Measured entities must assist a 51% black-owned company on the supplier’s list, equivalent to 1% of the measured entity’s net profit after tax. Additionally, they must offer further assistance of 1% of their net profit after tax to any 51% black-owned company with an annual turnover of less than R50M. 5. Socio-economic development: Socio-economic development evaluates the company’s contributions to socio-economic initiatives that benefit black communities. These could include donations to charitable organisations, community development projects, and infrastructure or social programs investments. 6. Sector-specific scorecard: Certain industries or sectors may have additional requirements or specific scorecards tailored to their unique characteristics. These sector-specific scorecards ensure that the BBBEE framework remains relevant and adaptable across different sectors of the economy. Each aspect of the BBBEE Scorecard contributes to a company’s overall empowerment rating. By addressing these elements comprehensively and strategically, businesses can enhance their BBBEE compliance, foster economic transformation, and contribute to a more inclusive and equitable society in South Africa. Don’t wait until submission day to reach out! We’re here to assist you throughout the entire financial year to ensure compliance is as effortless as possible. Speak to Invictus Group now and ensure that your initiatives are strategically aligned and effectively implemented from the start. Visit our website: https://invictusgroup.co.za or contact our call centre at 086 173 7263. [...] Read more...
Unfair discrimination has a storied history in South African employment law. Since the dawn of South Africa’s democracy, our legislature has actively clamped down on it through various acts, codes, rules, and regulations.  Arguably, one of the most important mechanisms is the Employment Equity Act 55 of 1998, which aims to promote equal opportunity and fair treatment in employment by eliminating unfair discrimination. In contrast, employers commonly reserve the right to protect their interests and ensure sustainability by employing the correct type of employees.  This issue was pivotal in the case of Connor v LexisNexis (Pty) Ltd (P18/24) ZALCPE 11 (11 April 2024). Background facts of the case At the beginning of 2024, LexisNexis offered Mr Elsworth O’Connor a job as a Senior Data Discovery and Enrichment Expert I, which entailed organising and classifying the information published in LexisNexis’ legal products. During the application phase, on 20 January 2024, a representative of the respondent emailed O’Connor and said that his interview was positive and that O’Connor would be moving on in the application process. The representative asked that O’Connor fill in their “RefCheck Consent and Indemnity Form”, which included a section on his criminal background. O’Connor completed the form and responded “yes” when asked whether he had ever been criminally charged. When asked for further details, O’Connor replied that he had been indicted for theft in 2001 but that this record had been expunged. Upon completing his application and the RefCheck Consent and Indemnity Form, O’Connor was asked to provide his fingerprints at a local PostNet office to conduct a criminal background investigation. On January 29th, 2024, the representative on behalf of LexisNexis emailed O’Connor the job offer, which he accepted on the same day.  On January 30, 2024, O’Connor was emailed his contract of employment, which he duly signed and sent back to the representative. However, on February 6, 2024, the employer retracted the “conditional offer” of employment because O’Connor’s criminal check revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice. After failed attempts at solving the matter in the CCMA, O’Connor brought an urgent application to the Labour Court, requesting that LexisNexis be ordered to honour its original offer. Arguably, the most critical part of O’Connor’s case revolved around his assertion that LexisNexis, through their retraction of the offer of employment, had unfairly discriminated against him on the arbitrary ground of past criminal convictions within the meaning of section 6 of the Employment Equity Act. The legal framework Section 6 of the Employment Equity Act deals with the prohibition of unfair discrimination. Section 6(1) states that No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.  Though this is a substantial list of grounds for unfair discrimination, this list is incomplete. In support of this section of the Act, Paragraph 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices states that an employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references, and investigating whether the application has a criminal record, if this is relevant to the requirements of the job.  Paragraph 17.3.6 of this Code states that an employer may not collect personal data regarding an employee’s sex life, political, religious, or other beliefs or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision. Acting Judge Meyerowitz’s application of the legal framework to the matter  After considering the legal framework relevant to the matter, Acting Judge Meyerowitz, in his obiter dicta, concluded that these legislative provisions suggest that the exclusion of an applicant from employment based on a criminal past would constitute unfair discrimination, even if this criminal past is irrelevant to the job requirements. This exclusion would be arbitrary because the decision would be without rational justification.  Meyerowitz explained that O’Connor’s criminal history had become an inherent attribute that is intimately connected to the societal perception of him. Still, our criminal justice system is premised on the idea that a person must be allowed back into society once they have paid their proverbial dues and debt to society.  Furthermore, Meyerowitz explained that the denial of a person’s right to participate in society freely would also constitute a denial of their Constitutional rights as a person. Based on this application, Meyerowitz concluded that there was little to no evidence that O’Connor’s prior convictions would in any way, shape, or form preclude him from fulfilling a role as a Senior Data Discovery and Enrichment Expert I, save for an unfathomable situation where he might “maliciously miscategorise legal information for his benefit”.  LexisNexis was subsequently ordered to employ O’Connor on the terms and conditions set out in the employment contract offered to him. Impact of the Judgment  In the context of employment practices, this judgment stresses the importance of determining which factors, attributes, skills, or experience are deemed necessary and inherent job requirements. If, for example, one’s criminal past has no bearing on one’s ability to organise information on a computer, then employers would be well versed in not denying an applicant a job due to their perceptions of him. If you need further advice on employment policies, then please feel free to contact our legal team. [...] Read more...
The Basic Conditions of Employment Act and Labour Relations Act do not specify a mandatory retirement age for employees. Specific industries adhere to additional basic employment conditions outlined in a collective bargaining agreement that may include that employers must provide benefits such as a retirement fund to their employees. The retirement fund is administered by a registered financial institution, which determines the terms and conditions of the fund, including the retirement age linked to the fund. In the absence of a collective bargaining agreement, the specified retirement age is at the employer’s discretion. The employer can decide and agree upon a retirement age with their employees or rely on the average retirement age, which is 60 – 65 years, based on social norms. Relevant legislation When employers decide on an appropriate retirement age, they must be aware of any applicable laws and regulations that govern their employment practices, including those related to age discrimination. Employers should ensure that their retirement policies comply with relevant laws and are implemented fairly and transparently. Employers must be cautious about potential age discrimination issues, as the Employment Equity Act highlights. Dismissing an employee based solely on age can be seen as discriminatory unless the employer can demonstrate that there is a legitimate and inherent requirement for a particular role. Section 187(2)(b) of the Labour Relations Act guides how a dismissal based on age can be considered fair. The dismissal may be deemed fair if an employee reaches the expected or agreed retirement age for persons employed in that capacity. In Rubin Sportswear v SA Clothing & Textile Workers Union and others (2004) 25 ILJ 1671 (LAC), the LAC held, “Section 187(1)(b) creates two bases upon which an employer can justify the dismissal of an employee on the grounds of retirement age. The one is an agreed retirement age; the other is a normal retirement age. Those are the only two bases.” In Cash Paymaster Services (Pty) Ltd v Browne (2006) 27 ILJ 281 (LAC), the LAC held that “(t)he provisions relating to the normal retirement age only applies to the case where there is no agreed retirement age between the employer and the employee.” Case law In Solidarity obo Strydom and Others v State Information Technology Agency SOC Ltd, the issue was the dismissal of employees by the employer, SITA (State Information Technology Agency SOC Ltd). Solidarity, representing the employees, argued that the dismissal was automatically unfair according to section 187(1)(f) of the Labour Relations Act (LRA) (C 148/18; JS ZALCJHB 95 (9 May 2022). Solidarity presented two alternative claims: That the dismissal was unfair under section 188 of the LRA. A contractual claim for damages under section 77(3) of the Basic Conditions of Employment Act (BCEA). The dispute arose because the employees, although members of the Alexander Forbes Pension Fund (Pension Fund), were allowed to work beyond the average retirement age of 60 years. However, the employer decided to enforce the retirement age per the Pension Fund Rules and served the employees with individual retirement notices in September 2017. The relevant legal principles, particularly section 187 of the LRA, were considered. Section 187(1)(f) states that a dismissal is automatically unfair if the employer unfairly discriminates against an employee based on arbitrary grounds, including age. However, section 187(2)(b) provides that a dismissal based on age is fair if certain conditions are met: The dismissal must be based on age. The employer must have an average or agreed retirement age for persons employed in that capacity. The employee must have reached the age referred to in (2) above. The court noted that the dismissal is considered fair once these conditions are established according to the statute. Therefore, in the context of this case, if the employer met these conditions, the dismissal based on age would be deemed fair, and the court would not consider it further. When an employer is bound by a collective bargaining agreement specifying a retirement age, strict adherence to that agreement is paramount. Alternatively, without such an agreement, the employer retains discretion over setting the retirement age. Nevertheless, to mitigate potential labour disputes and ensure transparency, it is strongly recommended that the retirement age be stipulated either within the employment contract or a comprehensive retirement policy. This proactive approach fosters a harmonious employer-employee relationship and promotes compliance with relevant labour laws and regulations. For assistance in including retirement age specifics within your employment contract or establishing a comprehensive retirement policy, email us at admin@invictusgroup.co.za or call our offices at 086 173 7263 [...] Read more...
The various SETA systems for submitting Annual Training Reports and Workplace Skills Plans are open until April 30, 2024. Companies that successfully submit their annual training reports and Workplace skills plans are entitled to receive 20% back of their annual skills development levies from their relevant SETA. For the report to be approved by the SETA, a company must capture the following information and submit the accompanying documents of evidence on the relevant SETA online system:  1. An updated employee profile containing the following information must be captured on the online SETA system. 
• Employee name and Surname
• Employee Job title 
• Employee race, gender and age 
• Some SETA systems also require employee ID numbers; this is only needed for some SETA systems. 
 2. All companies must capture their nominated banking details with the SETA to ensure that any refunds are expediently paid to the employer. Furthermore, the following confirmatory steps must be met:
• A bank account confirmation letter over three months old must be uploaded to the online submission system. 
• A contact person other than the person submitting the report must be captured along with the banking details.  
 3. All training that took place within the reporting period, as well as the employees that completed the various training interventions, along with the following supporting documents:
• Invoices and proof of payments for external training,  
• Certificates of completion if these were issued, 
• Signed attendance registers for training completed,  
• Internal training registers on a company letterhead can also be drawn up internally and need to contain the following information: 
• Employee Name and Surname, 
• Employee ID no, 
• Race and Gender of employee,
• Employee’s Job tile, 
• Description of subject matter, 
• Name and Surname of employee/company representative providing training, 
• Duration of training intervention in either days or hours, 
• Combined rate of trainee and trainer per hour this is used to calculate the cost of the internal training intervention, 
• Both the trainee and trainer need to sign the register,
• Start date of internal training intervention, 
• End date of internal training intervention.   
 Claim back 20% of your Skills Development levy Workplace skills plan setting out what training would take place over the next reporting period; this can range from internal training to mandatory required training, training related to operational needs or even training related to B-BBEE certification requirements.  Once the required data and supporting documents have been uploaded to the relevant SETA online submission system, an authorisation document will be generated. This needs to be signed by the relevant company representatives, and it would then need to be uploaded to the online system before the system allows for the submission to be finalised.  Once a company’s annual training report and workplace skills plan have been submitted to the relevant SETA online system, the relevant SETA systems will review the applications and the supporting documents and notify the nominated contact person if there are any queries regarding the application. Alternatively, the relevant SETA will issue a letter of approval to which the applying company can expect 20% of their annual Skills Development Levy contributions back in four quarterly tranches as set out in the Skills Development Levies Act of 1999. Failing to submit means losing out on the 20% annual skills development levies contribution, furthermore, companies that wish to be B-BBEE compliant will not be able to do so without an approved annual training report and workplace skills plan. For assistance in having your annual training report and workplace skills plan submitted and approved by your relevant SETA and claiming back 20% of your annual Skills Development Levies, email us at admin@invictusgroup.co.za or call our offices at 086 173 7263. [...] Read more...
As discussed in a previous article, Cannabis in the Workplace, many companies adopt a zero-tolerance policy for alcohol and intoxicating substances. A zero-tolerance approach is justified if the employer can prove that such a rule is necessary and valid. The high-risk nature of the employer’s operations or a particular job, such as employees working at altitude, driving heavy vehicles or operating dangerous machinery, would justify a zero-tolerance policy. Confirming intoxication and guilt at a disciplinary hearing once an employee is suspected of being under the influence of alcohol is not simple. Recent case law suggests it’s more complex than conducting a Breathalyzer test. This complexity underscores the importance of thorough and fair procedures in such cases. Breathalyser tests are admissible as evidence in disciplinary hearings; however, their evidentiary value is questionable. Using a Breathalyzer test without corroborating evidence is insufficient to prove intoxication and subsequent guilt at a disciplinary hearing. This underscores the necessity of a comprehensive approach, where a Breathalyzer test is just one part of the puzzle, and other evidence, such as an Observation report or blood test, is also considered. Case Study In the recent case of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) ZALCJHB 150; (2023) 44 ILJ 2013 (LC) (29 May 2023), the company had a zero-tolerance policy: “a person shall be deemed to be unfit to enter the premises if their breath-alcohol level exceeds 0.000 per cent.” Their disciplinary code further stated that breaching this rule is considered gross misconduct and could result in dismissal on a first offence. Mr. Willemse tested positive while reporting for duty with a breath-alcohol reading of 0.013%, confirmed by a second reading on the same Breathalyzer instrument and a third reading on a different Breathalyzer device, whereafter he was dismissed. At the CCMA, Mr Willemse challenged the substantive fairness of the dismissal based on an expert witness and a negative blood test conducted closely after the Breathalyser tests.  He argued that the results of the breathalyser tests were not sufficiently accurate to prove that he was intoxicated and breached the company’s zero-tolerance policy, further, there was the chance that the Breathalyzer tests showed false positive results based on a list of factors, including a person having consumed a product with yeast or who had been fasting for more than 8 hours. The Commissioner ruled that the dismissal was substantively unfair and ordered reinstatement with backpay. He added that the Chairperson of the disciplinary hearing ought to have considered the laboratory blood test results more accurate and reliable than a Breathalyzer test.  Limitations of the breathalyser test The company took the CCMA’s ruling on review to the Labour Court. The court found that the chances of the Breathalyzer tests presenting false positives were a good possibility. Therefore, there was insufficient evidence to prove guilt based on a balance of probabilities. The application for review was dismissed with costs. The above case demonstrates that employers cannot rely solely on Breathalyzer tests to dismiss an employee for allegedly breaching the company’s zero-tolerance policy. Whilst a Breathalyzer test can be a useful screening tool, an employee should not be subjected to a disciplinary inquiry unless there is sufficient supporting evidence to corroborate intoxication and subsequent guilt, especially when contested by the employee. Where a Breathalyzer test is positive, an employee should be subjected to an Observation and/or Sobriety test, whereafter an Intoxication Report must be completed to support the positive reading of intoxication.  For more information on the above or assistance with the Observation on Intoxication Report, contact Invictus Group. [...] Read more...
Employers, especially those involved in the hospitality and service industry, are understandably considerate of clients’ perceptions of their service and employees’ conduct towards their clientele. Since the turn of the century, employers have often turned to review platforms with the adage “the customer is always right” firmly in mind. However, this mindset cannot be absolute and must account for notions of fairness in terms of labour law. This “balancing exercise” begs the question of whether employees may be disciplined based on these written client complaints. The legal principles The basic tenets of employee discipline are firmly entrenched in Schedule 8 of the Labour Relations Act, 66 of 1995 (also known as the Code of Good Practice). From this Schedule, it is readily apparent that an allegedly offending employee has a right to a procedurally fair disciplinary hearing, which, in a broader context, would include the right to state their case and face their accusers. The complications of a written client complaint at a disciplinary hearing. There are multiple intricacies at play when dealing with a written client complaint. An employer does not want to risk writing the complaint as nothing more than a feeble matter. However, a written client complaint is very tricky, as it is a complaint that a client has written off-premises, most likely after their experience with the employer. This poses a practical conundrum for an employer, as they must now investigate the matter based on the written complaint, often without the luxury of having a face-to-face conversation with the client.  This leads to a situation where employers initiate disciplinary hearings and merely present the allegedly offending employee with the written client complaint without calling the client to confirm the contents of their complaint. In these cases, an employee could either agree with the material aspects of the client’s complaint or deny these aspects. Case Study In the case of Magic Company v Commission for Conciliation Mediation and Arbitration and Others (C682/03) ZALC 37 (19 January 2005), Murphy AJ was tasked with the review of this exact issue. In this matter, the employee was dismissed based on a customer’s written complaints of abysmal service, which the employee vehemently denied at her disciplinary hearing. The employee insisted that the customer be called to the hearing but to no avail.  Eventually, the employee was reinstated at arbitration, and this decision was upheld on review. Murphy AJ noted that, whilst employers are often afforded leeway about the strict rules of evidence and procedural compliance, employees undoubtedly have the right to challenge their accusers directly. Thus, if the accuser is not available to be cross-examined, the employer should at least have other corroborating and testable evidence to substantiate the contents of the written complaint they have presented. Practical implications for employers When a client complains, an employer should always aim to agree with the client so that they can testify at any future enquiry. Should the client refuse, the employer should ask the client to make a sworn statement, whereafter, the employer should find corroborating evidence to present at a hearing. Also, the employer should reach out to the employee before a hearing and try to establish whether the employee disagrees with the statement and, if so, narrow it down to the aspects with which the employee disagrees. Need more practical advice from our legal experts? Speak to us. We’re here to provide the best legal guidance at every step of the process.Call us today – 086 173 7263 [...] Read more...
Section 188 (1) of the Labour Relations Act 66 of 1995 (‘LRA’) states that;“a dismissal which is not automatically unfair is still unfair if the employer fails to prove –(a) That the reason for the dismissal is a fair reason –(i) Related to the employee’s conduct or capacity; or(ii) Based on the employer’s operational requirements; and(b) That the dismissal was effected in accordance with a fair procedure.” It should be borne in mind that internal company policies primarily regulate dismissal and the procedures followed. However, it is possible to do away with dismissal policies and procedures, for the sake of this article, let’s consider both options: Where internal dismissal policies and procedures exist Riekert v Commission for Conciliation Mediation and Arbitration and Others (JR686/03) ZALC 90; 4 BLLR 353 (LC); (2006) 27 ILJ 1706 (LC) (28 September 2005) the Court found that the employer had an extensive disciplinary code which it had deviated from in the dismissal of an employee, and subsequently held, on review, that “the CCMA arbitrator had been wrong in accepting the employer’s deviation from its own code in the absence of any compelling reason for such deviation.” Albeit internal disciplinary policies and procedures act merely as guidelines, this does not permit employers to stray from their procedures as they please. In the absence of compelling reasons, an employer may not simply disregard its own internal policies and procedures and dismiss an employee in whichever manner it deems fit, where internal policies and procedures are entrenched, the employer is bound thereto and should follow its dismissal procedures accordingly. Where there are no internal dismissal policies and procedures Item 4 of Schedule 8 of the Code of Good Practice on Dismissals describes a fair dismissal procedure as “the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed to state a case in response to the claims. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken”. Common law, as codified by the Code of Good Practice, dictates that an employee MUST be allowed to be heard for a dismissal to be considered fair. There exists no statutorily imposed approach which should be followed before the dismissal of an employee, mainly where compelling evidence and circumstances exist in support of a dismissal. Case Study AUSA obo Melville v SA Airways Technical (Pty) Ltd (2002,6 BALR 573) quoted, “The Code of Good Practice in Schedule 8 makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.” Case law supports this stance in laying out that the onus placed upon an employer when dismissing an employee is at a basic level, and should one determine that fair process was followed, albeit not per ‘traditional’ dismissal procedures, such a dismissal will be following Section 188 of the LRA and thus considered fair. In conclusion, an employer CAN NEVER dismiss an employee without having held some form of hearing/inquiry/investigation, the nature of that hearing/inquiry/investigation and the fairness in respect thereof would then be open to interpretation. Contact our offices today at 0861 737 263 or email us at info@invictusgroup.co.za to learn more about how we can assist you in achieving a fair and favourable outcomes. [...] Read more...
As our law develops, a very important question arises for every business owner in South Africa: How can I protect the secrets of my trade while investing in the furtherance of my business? A restraint of trade is defined as a clause in an employment contract that restricts an individual from conducting trade or profession in a competitive market. In South African law, there is no formal legislation relating to restraint of trade. What is “Restraint of Trade” The concept of restraint of trade is based on the idea of unlawful competition and is then enforced in a contract through a restraint of trade clause. Section 18 of the Constitution affords each citizen the right to freedom of association. Furthermore, Section 22 allows people to freely choose their trade, occupation, or profession. Regarding Section 23, each South African citizen has the right to fair labour practices. The Competition Act 89 of 1998 does not provide a clear definition of unlawful competition but proposes to prohibit the same. One of the initiating steps when starting a new business or taking on a new employee is to provide training and orientation. In doing so, the employee is exposed to specific procedures, processes, methodologies, recipes, and the like, more formally known as the secrets of the trade, to further the business. Whilst no law prohibits competition, there is a limitation in the South African law of contract, which provides limited protection of the proprietary rights of business owners. The Role of Employment Contracts Once training is provided and such sensitive information is disclosed to an employee in good faith, it becomes impossible to reverse the information disclosed or undo habits adopted by an employee once an employee’s employment is terminated. Therefore, a need has arisen for the protection of trade secrets that an employee learns and adopts. The law makes provision to include a clause in an employment contract which stipulates that for a limited duration, and depending on the industry/business, an employee is restricted from conducting business or performing work which falls within the same description or industry as that which the employee was already taking part in before the termination of their employment. This is done to ensure that the employee takes none of the secrets of the trade of a specific business to direct competitors to gain an unfair competitive advantage. Case law The restraint of trade clause in an employment contract provides protection for a limited duration, normally between 6 and 12 months, after an employee leaves their previous employer. The validity of such a clause has been questioned and discussed in our case law as follows: In the landmark case of Magna Alloys and Research SA (Pty) Ltd vs Ellis 1984 (4) SA 874 (A), it was held that a restraint of trade clause is enforceable if it is reasonable and unenforceable if it is contrary to public policy. It was further held that the onus is on the party who alleges that the restraint of trade is unenforceable to prove that it is unreasonable. In Reddy vs Siemens Telecommunications (Pty) Ltd (2006 ZASCA 135; 2007(2) SA 486 (SCA), it was held that the maxim pacta servanda sunt, which is the contractual obligation for agreements to be met, needs to be weighed up against the Constitutional right in section 22, which provides for the right to engage freely in trade, commerce, or a chosen profession. In the matter of Botha & another vs Carapax Shadeports (Pty) Ltd 1992 (1) SA 202 (A), it was held that an ordinary restraint of trade is entered into for the benefit of the business itself and not that of the owner and that such benefit is incidental to the business and part of its goodwill. As such, when a company is transferred in terms of section 197 of the Labour Relations Act, there is a cession of the rights passed through the contract, which will entitle the new owner to enforce the restraint. However, if the benefit of the restraint does not form part of the goodwill, then it is not enforceable. In the case of Micros South Africa (Pty) Ltd and Others v Kleynhans and Others (074606/2023) ZAGPPHC, the court held that the decision to enforce a restraint against an employee should consider legitimate interest, reasonableness, and protection of confidential information. The court held that where an employee voluntarily agreed to sign a restraint of trade and the ex-employee’s actions now create a substantial risk of taking proprietary interests to a competitor, the court would grant an interdict restraining the ex-employee. In conclusion, a restraint of trade is enforceable provided that it is reasonable, and the prejudice from applying such a clause does not outweigh the right to freedom of trade as provided for in the Constitution. It is also applicable within the restructuring of an organisation if it is stipulated in the employment contract between the employer and the employee. Please feel free to contact our offices on 086 173 7263 if you require any assistance navigating the restraint of trade in your industry. [...] Read more...
Perjury, simply put, is the misrepresentation of facts whilst under oath. The consequence of perjury in South Africa is a fine, imprisonment of up to 10 years or both. The presence of the following elements determines the test for perjury in South African common law: I. “ false statement;II. in an affidavit, affirmation or attested declaration;III. made before a competent person;IV. (iv) mens rea” (intention to commit wrongdoing). Perjured testimony in arbitration awards The recent case of Rand Refinery (Pty) Ltd v Sehunane N.O. and Others (CCT 204/22) ZACC 28 (21 August 2023) dealt with a situation where a witness to disciplinary proceedings claimed in subsequent litigation that he had been forced to give false evidence against an employee. Essentially, an arbitration award rendered as a consequence of false evidence given in arbitration proceedings would be tainted by perjured evidence. However, a court with competent jurisdiction would not be in a position to simply set aside a ‘tainted arbitration award’ on the sole basis of a witness having perjured himself/herself. Legal integrity at stake Giving false evidence in civil proceedings, such as during an arbitration, can have a material impact on the outcome of that dispute, hence the severe consequences associated with such conduct. An employer cannot force an employee to perjure him/herself to obtain a more favourable outcome in litigation, as this would directly contradict Section 23(1) of the Constitution of the Republic of South Africa, 1996. When an employee alleges that an employer forced them to perjure themselves, the well-known concept of ‘he who alleges must prove’ becomes applicable in that such a severe allegation would have to be determined to be true. When a person, and in this scenario, an employee, is bound to prove the existence of any fact, it is said the burden of proof lies on that person to prove the existence of said fact on a balance of probabilities. If the existence of forced perjury is adequately proven, an employer may very well face the harshness of the law; however, if an employee is not able to prove the existence of forced perjury, the result could be a host of legal recourses, including, but not limited to, being sued for defamation. Safeguarding trust and credibility in arbitration In conclusion, it is unequivocally detrimental for any company to endorse or encourage witnesses to lie during arbitrations. Such actions not only undermine the integrity of the arbitration process but also erode the trust and credibility upon which business relationships and legal proceedings rely. The ramifications of such behaviour can be severe, potentially resulting in legal penalties, reputational damage, and lasting repercussions on the company’s standing in the business community. Therefore, it is imperative for companies to uphold honesty and integrity in all aspects of their dealings, recognizing that the pursuit of short-term gains through dishonest means can lead to long-term consequences that far outweigh any perceived benefits. Ultimately, fostering a culture of transparency and accountability not only serves the interests of justice but also safeguards the long-term success and sustainability of the company. Looking for expert guidance and assistance in navigating the arbitration process? Our experienced team is dedicated to providing comprehensive support to individuals and companies alike, ensuring that your interests are protected and advocated for every step of the way. Contact our offices today at 0861 737 263 or email us at info@invictusgroup.co.za to learn more about how we can assist you in achieving a fair and favourable outcome in arbitration processes. [...] Read more...
The Department of Employment and Labour has adjusted the earnings threshold for the Basic Conditions of Employment Act 75 of 1997 (the BCEA) as of 1 April 2024. Here are a few key takeaways from the adjustment to the earnings threshold: What is the earnings threshold? Employees earning above the earnings threshold are excluded from certain provisions which would otherwise have been afforded to them under the BCEA. What is the change to the threshold, and when will it be effective? As of April 1, 2024, the new earnings threshold will be set at R254,371.67, an increase of R3,261.08 from 2023’s threshold. This equates to R21,198.00 per month. What does this change in threshold mean for employers and employees? Employees who earn above the new threshold will not be entitled to certain protections afforded to workers who earn below this threshold, such as ordinary hours of work, overtime, compressed working weeks, averaging hours of work, meal intervals, daily and weekly rest periods, and pay for Sundays, night work, and public holidays. Moreover, employees earning above the threshold are not considered as vulnerable as those earning below the threshold. Regarding the Employment Equity Act, these employees are not allowed to refer unfair discrimination disputes to the CCMA for arbitration unless all parties agree to it or the matter is related to sexual harassment. However, employees earning below the threshold are protected by all BCEA sections. These employees furthermore enjoy additional protection in terms of fixed-term contracts and temporary employment. Such employees cannot simply be placed on fixed-term contracts over three months without valid justification for such contracts. Employers are thus urged to assess their current employment contracts and remuneration structures to ascertain which employees fall under what category and ensure compliance with the Act. If you would like to learn more about this earning threshold then please feel free to contact Invictus Group. [...] Read more...
In the dynamic landscape of South African labour law, short-time work emerges as a strategic tool for employers and employees to navigate economic ebbs and flows. This comprehensive exploration aims to dissect short-time work’s legal intricacies and practical dimensions, providing invaluable insights for effective implementation. A short-time arrangement occurs when an employee and an employer agree that the employee will work fewer hours per week than usual and will only be paid for the hours actually worked. Employers can use this approach to reduce costs instead of resorting to retrenchments. When properly implemented, this strategy can support employers experiencing financial challenges. What is “Short-time” work? At its core, short-time work entails a temporary reduction in employee working hours and corresponding compensation. Certain conditions must be met to qualify: the reduction must be temporary, the employment contract must remain intact, and there must be a clear expectation of returning to full-time status. This approach is invaluable for employers seeking to manage limited tasks during downturns without retrenching. If employees decline short-time work, operational requirements may necessitate dismissal, provided proper procedures are followed. The structure is designed to seamlessly adjust to decreased demand, with a swift return to regular duties as demand rebounds. Contractual obligations An employment contract represents an agreement between two parties, and one party cannot unilaterally alter its terms without the other party’s agreement. Likewise, implementing short-time work represents a change in the employment terms and conditions, which cannot be imposed without mutual consent. Implementing short-time work effectively necessitates obtaining employee consent and engaging in prior consultations to assess its impact on working hours and pay. If employees belong to a union, the employers must arrange for prior consultations with the union representatives before implementing short-time work. Provisions for short-time work can be integrated into employment contracts through specific clauses, collective agreements, or aligning with customary practices, provided employees are informed and agree to the short–time work. Furthermore, employers may place employees on short time if it is contained in their employment contracts, some collective agreements already contain built-in short-time clauses, or if it is a custom and practice of the company to do so and employees are aware of this. Where an agreement has been reached regarding short-time work, the employee must recognise that all other contractual obligations and rights outlined in the employment contract remain applicable. CCMA definition As mentioned earlier, short-time work is when an employee’s regular working hours are temporarily decreased due to a reduced demand for services. The CCMA has defined the concept in that it is “a temporary reduction in the number of ordinary hours of work owing to reasons including slackness of trade, shortage of raw material, vagaries of weather, breakdown of plant machinery or buildings that are unfit for use or is in danger of becoming fit for use”. Case Study In the case of Independent Commercial Hospitality and Allied Workers Union and others v CCMA and others (2015), LC, the employer, faced with financial difficulties, opted to implement short-time work. However, the affected employees contested this change, arguing that they had not consented to it, and were subsequently dismissed. The court ruled that in such circumstances, the employer had the choice of initiating a lockout or conducting retrenchment procedures, offering short-time work as an alternative. Additionally, the employer would have been within their rights to dismiss employees if there were valid operational reasons justifying such action. However, in this instance, the employer failed to explore these options and instead unilaterally imposed short-time work. The court determined that instructing employees to work under a new shift system was unreasonable and amounted to a unilateral alteration of employment terms. Consequently, the employee’s refusal to accept this change was not insubordination. This case is a significant example illustrating the risks associated with unilaterally implementing short-time work. Legal considerations and fair practices While inherently temporary, short-time work does not have a fixed duration, varying from a day to several months. Still, the timing should be reasonable and justifiable, and both parties must agree. Certain bargaining councils have stipulations regulating short-time and duration, and employers must ensure compliance in this regard. The selection of employees for short-time work mirrors criteria used in Section 189 dismissals, ensuring fairness and non-discrimination per Section 6 of the Employment Equity Act. Employees who feel that their employment conditions have been changed can refer a case to the CCMA or relevant bargaining council for conciliation. The employee may then give the employer a 48-hour ultimatum to comply with the demand that it not implement the changes, or where these have been implemented, to restore the terms and conditions of employment as they were before the changes were made. If the employer fails to comply, the employee can give notice of strike action. The employee may also apply to the Labour Court for an interdict. Where one individual is affected, he or she may apply to the Labour Court for relief. This matter falls under an unfair labour practice dispute and must be referred to the CCMA or council within 90 days of the act or omission. Short-time work is a flexible tool within labour law, providing resilience amidst economic uncertainty. Adhering to legal obligations fosters equitable implementation, benefiting all parties involved. Transparent communication and mutual respect facilitate a smooth transition, showcasing how integrating legal frameworks and collaborative efforts offers a balanced response to changing circumstances. To find out more about short-time work, please visit our website or contact one of our legal experts. [...] Read more...
Anyone with cause to dabble in Labour Law will know that the principal statutes are prescriptive, not permissive, and take precedence over contractual freedom. This is why, even though the contract may allow termination of employment on notice by either party of one month, terminating an employee on this basis without being able to justify the termination in law results in an unfair dismissal.  What is required is for the employer to show i) that a rule exists, ii) that the employee was aware of the rule, and iii) that the employee broke that rule. But what if the rule is contained in common law (i.e. so old and well-known nobody has bothered to write it down)? And, more importantly, would this apply to a conflict of interest? Conflict of interest is a self-explanatory phrase. It denotes a situation where an employee’s interests are at odds with the employer’s best interest. The most obvious example (and one which has been explored in previous articles) is that of so-called moonlighting. Case law In the matter of Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (JA78.14) , ZALAC 1, two electricians working for the municipality had informed their manager that they wished to use their annual leave to perform electrician work for a third-party contractor, for their benefit. These requests were never approved. The Labour Appeal Court confirmed that “if so-called ‘moonlighting’ was to be effectively prohibited, there ought to have been a specific rule, which must have been made known to the employees, that ‘moonlighting’ was not permissible. For a dismissal based on ‘moonlighting’ to be fair, there must be proof of such a rule, knowledge of the rule on the part of the employee, and breach of such a rule by the employee.” This follows the above-stated three-pronged principle, and the employees in the Metsimaholo case were found to have been unfairly dismissed. In an earlier case, that of Bootes v Eagle Ink Systems KwaZulu-Natal (Pty) Limited (D781/05) ZALC 52, the employee, using his employer’s connections, circumvented his employer and agreed (in his capacity and for his account) with one of his employer’s suppliers for the textile printing of blankets. In that case, the Labour Court, at , “accepts as a general proposition that a breach of good faith could impair the relationship of trust between an employee and the employer. In this case, he option exercised is one that favoured him personally. By exercising this option, he acted in conflict with the interests of and, consequently, in bad faith.” The Court found that the employee, by competing with his employer in this way, was guilty of misconduct and liable for dismissal. Findings The court’s decision in the Bootes case was based on a “general proposition” and not a specifically recorded rule. It would, therefore, seem that there is a difference between the narrow field of moonlighting and the broader spectrum of conflict of interest, the latter relying on a rule (extant and well-known) contained within the common law. Support for this is found in Grogan’s Workplace Law (8th Edition): “Employees who secretly compete with their employer’s business for their account breach their fiduciary duty. But in the absence of a contrary provision in the contract, there is nothing to preclude employees from holding two compatible jobs, provided the second is not conducted during the working hours they are obliged to devote to the first job.” (p.55-56). However, “Secret trading for an employee’s account has been held to undermine the employment relationship, even if the employer happens coincidentally to have profited from the employee’s dealings.” (p56) Grogan concludes: “The employee’s duty to act in good faith is fiduciary. Therefore, a breach by an employee of any of the above duties is grounds for summary dismissal under the common law and may also justify dismissal under the LRA.” (p57) The deciding factor would seem to be the “secret” or clandestine nature of the employee’s dealings. In other words, in common law, an employee who hides the fact that he is garnering a benefit from his relationship with the employer – which the employer would not otherwise approve of – is guilty of an offence and liable for summary dismissal due to conflict of interest. Contact Invictus Group for all your legal concerns. [...] Read more...
In the Constitutional Court case of Minister of Justice & Others v Prince & Others 2018 ZACC, the court decided to decriminalise the cultivation, possession, and use of cannabis for private purposes.  However, the court failed to guide employers on how to manage cannabis in the workplace. Does this mean that employees can now be under the influence of cannabis in the workplace without repercussions? Can an employer take disciplinary action against employees who are found to be intoxicated? This has left considerable uncertainty. Challenges of Cannabis Testing in the Workplace Unlike alcohol, which can leave one’s system within hours, cannabis can be detected between 3 days and six months after use, depending on which type of testing is conducted, namely blood, urine or hair. This bears the question; how does an employer prove that an employee is under the influence of cannabis in the workplace when they could have used cannabis days or even months before? Whilst alcohol tests, such as a breathalyser, are quick to administer and are accurate in determining how much alcohol is in a person’s system, cannabis tests do not accurately provide the same degree of impairment. As with alcohol, an employer will need to determine whether an employee can perform their duties if cannabis is detected in their system. A positive outcome on a test does not necessarily prove that the employee is under the influence of alcohol or cannabis to the extent that their work has been impaired. Legal Precedents and Practical Considerations In the matter of Tosca Labs v CCMA 2012 33 ILJ 1738 (LC), the Labour Court found that a positive test result on a breathalyser is insufficient proof to indicate that the employee was under the influence of alcohol. An employer can take disciplinary action against an employee without a test where the effects of cannabis/alcohol are observed, and it is evident that the employee is too impaired to perform their duties and/or is a risk to themselves or others in the workplace. Employers are entitled to implement policies and procedures within the workplace to ensure occupational health and safety. It is advised that a policy specifically dealing with the use of cannabis and its effects in the workplace be implemented. Further, employers need to consider the nature of the business and the duties the employee is expected to perform. An employee responsible for operating heavy machinery who is found impaired and unable to perform his duties poses more risk than, for instance, an office cleaner who does not operate any heavy machinery that could put their life or their fellow employees’ lives in danger if caught under the influence of cannabis. Thus, consideration needs to be given to the circumstances under which the offence was committed. The policy needs to consider issues such as consent to cannabis testing, what type of testing will be conducted and the employee’s history, if any, on drug-related offences. Any testing conducted by the employer must comply with Section 7 of the Employment Equity Act, No. 55 of 1998. Section 7 states that the test must be permitted or required by law or justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent job requirements. Case Study In the case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826/2020) ZALCJHB 292, two employees (Applicants) tested positive for cannabis whilst on duty. The employer (Respondent) had a zero-tolerance policy on alcohol and drug abuse, of which the employees were aware. These two employees tested positive for cannabis, pleaded guilty to the charge and were dismissed for their misconduct. The employees referred the matter to the CCMA for an unfair dismissal dispute, stating that the Constitutional Court had legalised the use of cannabis for private purposes. Unhappy with the CCMA ruling, the employees took the CCMA award on review to the Labour Court. Enforcing Zero-Tolerance Policies The employer’s justification for dismissing the employees was based on the Occupational Health and Safety Act and submitted that the zero-tolerance policy was implemented to ensure workplace safety and reduce risk to themselves, their colleagues and the plant. The Labour Court dismissed the review of the applicants and found that the Constitutional Court judgement of Prince (supra) does not afford protection to employees against disciplinary action should they act in contravention of company policies. This case demonstrates that employees can be dismissed for testing positive for cannabis in the workplace, having regard to the nature of the workplace, if a zero-tolerance policy prohibiting the use of alcohol and intoxicating substances has been adopted by the employer. In conclusion, employees are still required to adhere to their employer’s policies and procedures. They are not entitled to attend work under the influence of cannabis, despite the Constitutional Court’s ruling of decriminalising cannabis for private use. Employers will face difficulty in proving that the use of cannabis has impaired an employee’s ability to perform their duties. For more information or assistance in drafting your company’s workplace policies and procedures, please contact admin@invictusgroup.co.za. [...] Read more...
In terms of the CCMA rules, an employee is required to refer an unfair dismissal dispute to the CCMA within 30 days from the date of dismissal or termination. The purpose of this rule is aligned with a core principle of the CCMA, the efficient and speedy resolution of disputes. It may however happen that, the Applicant, being the former employee or referring party, fails to meet these 30 days. This is when an Application for Condonation must be brought by the Applicant if they want the CCMA to entertain their case.  The Application for Condonation is submitted in the form of a Notice of Motion together with a Founding Affidavit made by the Applicant, templates are easily obtained from the CCMA or available on the CCMA website. The purpose of the application is to provide the CCMA with sufficient reasons for the Applicant’s lateness. The Commissioner is then tasked to make a ruling as to either condone the lateness and grant condonation or not grant the application for condonation. Requirements and Guidelines for Late Referral to the CCMA The Founding Affidavit submitted by the Applicant is required to include the following information: The degree of lateness: This is usually measured in “days late” and is calculated after the 30-day deadline has expired.
 The reason for lateness: Here the Applicant will include all the reasons as to why they were unable to refer the matter to the CCMA timeously. The reasons must be acceptable and reasonable and not mere excuses. Any proof regarding such reasons, for instance a medical certificate, should also be attached to the application. 
 The prospects of success: The Applicant is required to provide reasons as to why they feel their dismissal was unfair and why they would be successful at the CCMA.
 Prejudice: The Applicant will state why they would be more prejudiced (“harmed”) than the Respondent (employer) if the CCMA were to refuse their late referral.
 For the Condonation Application to meet the requirements of the CCMA rules, the Affidavit must be signed by the Applicant in front of a Commissioner of Oaths. It will then be served on the Respondent and proof of service together with the Affidavit must then be served on the CCMA. Procedural Steps and Considerations in Condonation Applications at the CCMA The CCMA may then schedule the case for a process called an “In Limine” (a hearing that is scheduled to take place before the merits of the main issue in dispute can be heard), this could be heard on the “papers” or in person, the parties will be notified thereof by the CCMA in the form of a notice of set down, where the time, date and venue are provided to the parties. Should the matter be scheduled in person, the Commissioner will consider the above-mentioned application and, if applicable, allow for any oral additions that the parties wish to be placed on record. The Respondent also has the opportunity to oppose the Application for Condonation, in the same Notice and Affidavit format mentioned above. This is called an Opposing Condonation Application, where the Respondent challenges all submissions made by the Applicant. The Affidavit of the Respondent must be served on the Applicant and the CCMA within 5 days from the Respondent receiving the Applicant’s Application. If the Respondent fails to serve their Opposing Condonation within 5 days, they can provide reasons to the CCMA for consideration when determining if the late filing of the Opposing Condonation should be condoned.  Consequences of Failing to Oppose Condonation Applications at the CCMA Should the CCMA rule that the matter is to be heard on the papers and not in person, and the Respondent fails to, or opts not to file Opposing Condonation papers, the decision by the Commissioner will be based on the Applicant’s submissions alone. The Commissioner will rule in one of two ways, either the condonation will be granted, and the late referral will be accepted, in this instance the matter will proceed, and the dismissal dispute will be entertained by the CCMA, or the Commissioner will rule that the Condonation is not granted and the Applicant’s case is then dismissed. It is therefore important for an employer to act immediately when receiving an Application for Condonation, this will allow the CCMA to in conjunction with the Applicant’s submissions, consider the employer’s arguments as to why a matter should not be condoned, effectively having the dispute thrown out at the gate and potentially saving time and resources going forth. Should you receive a document as described above from a past employee, please forward same to our litigation department, at litigation@invictusgroup.co.za  without delay to attend to the above.  [...] Read more...
South Africa has a diverse cultural landscape layered with traditions which can often extend into the labour sphere. A frequently debated and ambiguous topic is the question of Traditional Healers and their role in providing medical certificates to employees who seek traditional medical assistance rather than conventional medical treatment.  This nuanced topic sparks confusion and disputes as it delves into the intersection of traditional healing practices and their recognition within the formal framework of labour and healthcare systems. The main question facing employers is whether medical certificates issued by traditional healers are acceptable and lawful. One must assess the conflict between beliefs, tradition, and legislation and the importance of traditional healers in our communities. Legal Framework: What constitutes an acceptable and valid medical certificate? In terms of the Basic Conditions of Employment Act 75 of 1997, as amended (“the BCEA”), a medical practitioner means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974. In terms of section 23 of the BCEA, the following requirements must be met for a medical certificate to be acceptable and valid: The medical certificate must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients; and
 The medical practitioner or other certified person must be registered with a professional council established by an Act of Parliament.
 Legal Framework: When can a traditional healer issue an acceptable medical certificate? Section 23 of the BCEA and section 1 of the Traditional Health Practitioners Act 22 of 2007 have established that traditional healers fall within the category of a person certified to diagnose and treat patients; traditional healers must register with the Traditional Health Practitioners Council (THPC). Registration with the said council will render medical certificates issued by traditional healers acceptable. After registration, the traditional healer must meet the requirements for payment of sick leave, as in the case of any other medical practitioner. Employers must note that since the THPC was established, a traditional healer must have a registration number and/or present proof of same for sick leave to be paid out to the employee.  Should traditional healers’ medical certificates be accepted in the workplace?  When deliberating whether traditional healers’ medical certificates are acceptable and valid, employers were advised by the Labour Appeal Court to note that the Constitution recognises traditional beliefs and practices; therefore, employers should also accept these beliefs.  Caselaw: In Kievits Kroon Country Estate (Pty) Ltd v CCMA & others 3 BLLR 241 (LC), an employee was beset by visions and consulted a traditional healer. The traditional healer told her she had to appease her ancestors by becoming a traditional healer herself. She approached her employer and requested a month’s unpaid leave to complete her traditional healer training, but the employer was only prepared to give her one week.  The employee decided to attend the month-long training course despite the employer’s express refusal. Before she left, she handed in a traditional healer’s certificate, or sick note, stating that she suffered from “premonitions of ancestors”, which the employer refused to accept as valid. According to the commissioner ab initio, the ultimate question that needed deciding was whether the employee’s absence from work was justifiable. The commissioner found that the employee had breached the employer’s rule but also found that she was justified in doing so. The employee was faced with a difficult choice: she either had to heed the call of her ancestors and face possible dismissal or obey the employer’s rules and face the wrath of her ancestors.  She opted for the former. This was found to be reasonable as the “calling” of her ancestors was beyond the employee’s control, and ignoring it potentially endangered her life.  The Labour Court was satisfied that the award made by the commissioner ab initio was one that a reasonable decision-maker would have made and declined to guess the commissioner’s findings second. Therefore the employer’s application for review was dismissed, and the employee was reinstated with back pay. It must be mentioned that the commissioner ab initio treated the matter not as an instance of sick leave but as one of absence without leave. As such, although the issue of the validity of the traditional healer’s sick not was not expressly decided, the outcome of the matter seemed to validate the underlying diagnosis. Conclusion: The above highlights the conflict between belief and law, which creates uncertainty regarding the appropriate action to be taken by employers. However, having regard to the relevant case law and legislation, the following options are available to employers: Employers must focus on the legal aspects of what is required for a medical certificate issued by a traditional healer to be valid. If any of the requirements are unmet, employers can reject medical certificates issued by traditional healers and implement unpaid leave for the days the employee was absent. Employers need to consider each case on its own merits while ensuring that employees’ rights are protected and that they are treated fairly and reasonably. When in doubt, always contact Invictus.   [...] Read more...
During the latter stages of last week, our Minister of Employment and Labour announced the new national minimum wage for 2024 in terms of the National Minimum Wage Act 9 of 2018, in which the minimum wage has been increased by 8.5%. More importantly, the amendment is set to be binding from the 1st of March 2024. Here are a few key takeaways from Government Gazette No. 50073: The new national minimum wage is R27.58 for each ordinary hour worked;For an 8-hour day (lunch break excluded), the new minimum wage would make the minimum daily pay rate R220.64 per day;For a 45-hour week, the new minimum wage would make the minimum weekly pay rate R1,241.19 per week; andFor a month’s work, the new minimum wage would make the minimum monthly pay rate approximately R5,373.96 per month. To avoid non-compliance with the governing legislation, changes in the minimum wage must be effective on March 1, 2024. Please contact our offices if you require any further information on the National Minimum Wage Act. [...] Read more...
What is a probation period? The Labour Relations Act, Schedule 8 Code of Good Practice (the Code), item 8 deals with probation. Probation is a trial period for recently hired employees. Typically, probationary periods span three to six months. The purpose of a probationary period is to evaluate an employee’s work performance over a reasonable, mutually agreed-upon period. During this period, the employer can ascertain the employee’s suitability for the position he/she had been appointed before confirming permanent appointment. Probation can prohibit access to employee benefits, such as pension/provident plans, medical aid and other benefits. Before permanent employment is confirmed, the probationary period serves to discover/identify performance issues of employees. These issues can be addressed in several ways. The length of the probation period The Code states that a newly recruited employee may be put on probation for a reasonable amount of time, depending on the position’s requirements. The duration should be decided by the type of work and the time needed to assess whether an employee is suitable for ongoing employment. A financial manager might need six months to have their suitability for the position evaluated, whereas a tea lady may just need one month. The probationary period should ideally be specified in writing, such as in the employment contract or letter of appointment. Additionally, at the beginning of the employment, the company should clearly communicate what is expected of them during this time. This is normally detailed in a job description or Key Performance Areas. If the employer is not satisfied that the employee is meeting the required performance standard, the probationary period may be extended, provided that it is reasonable. The extension’s purpose is to give the employee a chance to address the noted flaws. This could happen if the employee has potential but has committed a few mistakes or if there have been fewer opportunities for assessment during the first probationary term. The extension should also be provided in writing. Nonetheless, the employer must offer the employee a chance to voice concerns about the planned extension before extending the probationary period. The most common misconception an employer makes is to assume that a probationary employee’s rights are diminished due to the preconditions of their employment. Employers often use probation as an excuse to dismiss an employee at any stage during the agreed-upon period. This ultimately leads to unfair dismissal disputes being lost. What does the employer have to comply with during the probationary period? The Code says: “Where adequate, an employer should provide an employee with any assessment, guidance, counselling, training, or teaching needed to perform satisfactorily. Before being dismissed during the probationary period, the employee should have the chance to explain their case and receive support from a trade union representative or fellow staff member.” This implies that the probationer’s performance needs to be closely watched from the start, and any deficiencies in work performance need to be addressed by providing the worker with the assessment, counselling, instruction, training, and direction required to help him meet and sustain the stipulated job performance standard. Employees must also be allowed to explain why they believe there is inadequate performance and what they believe should be done to address the issue. The employer cannot simply dismiss an employee for not performing satisfactorily at the end of their probationary period without following any processes. The employer has to be able to demonstrate that the processes mentioned earlier of evaluation, counselling, guidance, and training have taken place and that the employee in question has been given a fair chance to present his case and identify the cause of the issue, as well as to outline and carry out (within reason) the steps he believes are necessary to address the issue. Under the employment contract terms, managers and supervisors are required to actively oversee the probationary period. They must also handle performance issues during this time by providing ongoing assessments, counselling, training, and guidance and pointing out to the employees the areas in which they need more competence. Employers must ensure that managers and supervisors know these standards in practice and maintain thorough written minutes and records of everything from consultations with the staff member (in which case a coworker may assist the staff member), informal mentoring sessions and on-the-job coaching and training. Furthermore, agreements were reached by the parties to rectify errors or poor performance, a realistic timeframe was set aside for enhancements, and the outcome of the actions was to help the employee reach the desired level of performance. The dismissal of employees while on probation Failure to permanently appoint an employee after probation is equivalent to a dismissal. Therefore, to succeed against a claim of unfair dismissal about probation, the employer must demonstrate that all conditions outlined in the Code have been fulfilled. If an employee must be dismissed during their probationary period for a cause other than subpar work, all applicable procedural and substantive requirements must be followed. Such terminations could occur as a result of their conduct or capacity. Furthermore, any material breach of contract in the probationary period will lead to dismissal. Once the employer has completed all procedural and substantive requirements, they will be well within their rights to dismiss an employee at the end of the probationary period. If the probationary period is completed, the individual will become a permanent staff member. Case law Tharratt v. Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) concerned a probationary employee dismissed due to subpar work. The CCMA determined that the dismissal was unfair because the employer neglected to investigate the reason behind the subpar performance. As a result, the company was mandated to give the worker compensation equivalent to three months’ salary. Therefore, the employer must maintain comprehensive written records, including minutes of all meetings held with the employee. Additionally, the employer should keep thorough documentation of the decisions made regarding the matter’s rectification, the agreed-upon period of improvement, and the outcomes of putting the agreed-upon measures into action. Please contact our offices for sound legal advice if you need help with any probation-related issues. [...] Read more...
Employers are often looking to expand their workforce, improve operations, or even strategically employ seasonal employees during busy or high-demand periods. However, during this exercise, employers also often overlook the process of employee screening and vetting. With the employment framework being affected by myriad factors, proper screening and vetting of employees has become increasingly important. Critical Importance of Rigorous Employee Screening Proper screening and vetting of employees are essential aspects of the hiring process, as this can improve workplace safety, ensure that an employer is legally compliant, and assist employers in maintaining the reputation they have built for themselves. If done right, screening and vetting can reduce staff turnover and associated costs, putting an employer one step ahead of the pack regarding responsible and strategic workforce development and management. On a practical level, vetting and screening also become important when considering the latest Background Screening Index (BSI) reports released by Managed Integrity Evaluation (MIE), which show a tremendous uptake in the employee embellishment of qualifications and employment experience from 2022 to 2023. As South Africa’s labour market makes it increasingly difficult for employees to find employment, more employees start to embellish their qualifications in their CVs while being dishonest about past employment experiences and backgrounds. Criminal Background and Document Verification The reports also indicate caution on the side of well-prepared employers that prioritise employee screening and vetting, as the most requested check through MIE’s system was that of potential employees’ criminal backgrounds, i.e., the criminal verification check, and checks for the validity of a potential employee’s accompanying documentation.  These reports show a positive correlation between criminal verification and background checks requested by employers and them finding suitable talent after exhausting screening and vetting checks. Case Study The case of Umgeni Water v Naidoo and Another (11489/2017P) ZAKZPHC 72 (15 December 2022) serves as a practical example of the importance of proper screening and vetting of employees. In this case, the employee was appointed as one of the employer’s annual graduate programme members, and one of the requirements for admission was that each candidate must possess at least a degree in chemical engineering. He attached a falsified chemical engineering degree on the employee’s application form, which he claimed was conferred on him by UKZN (University of Kwa-Zulu Natal). Some eight years later, the validity of this qualification was tested when the employee applied for the process technician position.  Case Findings Upon closer investigation, it became clear that UKZN had no records of the employee being awarded the degree. When the employer wanted to sue the employee for money paid to him during his employment, in the amount of R2 203 565.04, the employer had to recover the latter amount from the employee’s pension fund. Had the employer utilised proper screening and vetting measures eight years prior, they would have been able to detect that the employee’s qualification was falsified, and they could have prevented lengthy legal proceedings and associated costs. Overall, screening and vetting should be an integral part of any employer’s hiring and onboarding processes, as not only can these processes ensure that an employer employs the right employees, but, more importantly, they can protect employers from employing the wrong employees and suffering operational and reputational damage in the process. If you would like to find out more about how to vet and screen prospective employers, then please feel free to contact us. [...] Read more...
Employers frequently encounter instances of misconduct or criminal behaviour, in the form of misappropriation or theft, within the workplace. The challenge lies in identifying the specific details of when, how, and by whom these actions are carried out and whether any other accomplices were involved. Employers increasingly use polygraph tests as part of their investigations into instances of suspected misappropriation and theft. A polygraph test, commonly known as a lie detector test is a diagnostic tool used to measure physiological indicators. The underlying assumption is that deceptive answers may lead to detectable changes in these physiological parameters. Polygraph testing can be helpful in an investigation. Still, can an employer require that an employee undergo a polygraph test as part of an ongoing investigation into suspected misappropriation or theft? Although there is no particular legislation governing the specific use of polygraph tests within the workplace, employers can request that an employee undergo one, however, participation must be voluntary. In this context, voluntariness should be documented through a written agreement of consent or included in their employment contract. Legal Framework: In the case of GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) ZALCJHB 356, the Employer experienced a stock loss of R170 000-00 in January 2018. All employees including the department managers in which the loss occurred were required to undergo a polygraph test. Employees were contractually obligated to undergo and/or to subject themselves (amongst other things) to a polygraph test. Ten out of thirteen employees in that department underwent the test. The remaining three, namely, Edwin Malemone, Albert Mohau and Lucas Manamela refused to take the test citing various reasons. The Employer issued final written warnings against the three employees. The employees refused to sign the Final Written Warnings. Union Official Challenges Employer On 13 February 2018, the union official addressed a letter to the Employer essentially demanding the Employer to withdraw the warnings issued to their members. The main reason is that the polygraph test is psychological and is prohibited in terms of section 8 of the Employment Equity Act. From this communication, it became clear that the written warning did not assist the Employer in achieving the intended purpose. As a result, the Employer resorted to instituting disciplinary action against the trio which resulted in their dismissal based upon their refusal to follow a lawful and legitimate instruction by refusing to submit themselves to a polygraph test and material breach of contract. Court Rejects Challenges on Contractual Ground The court found that the essence of the Employer’s case was that the polygraph tests within its operations were driven by the relevant clause in the contracts of employment. Furthermore, the agreement entered into between the Employer and the trade union confirmed the employees’ consent to polygraph testing. Despite this, the individual applicants had repeatedly refused to undergo polygraph tests. There is no law prohibiting polygraph testing. Furthermore, the Employer never used a polygraph test to determine the employees’ guilt but rather as supporting evidence and an investigative measure. Employers can require their employees to undergo a polygraph test, provided that the employment contract explicitly includes provisions for such testing, and the employee willingly consents to being subjected, among other obligations, to a polygraph test. Alternatively, employers must obtain written consent from employees before administering polygraph tests to prevent potential labour disputes about lawful testing. Do you conduct annual polygraph tests? Be sure that you’re covering all of your bases and contact us today for legal clarification. [...] Read more...
Maternity leave is a crucial period for new mothers to provide them with the necessary time and support to care for their newborns. When an employee takes maternity leave, colleagues often step in to cover the employee’s responsibilities. During the employee’s absence, employers may face various challenges, including financial constraints or restructuring needs that may lead to tough decisions such as retrenchment, and questions may arise about the necessity of her role and the possibility of redundancy.  Can the employer terminate her in such circumstances? While courts protect pregnant employees against dismissal based on pregnancy, intended pregnancy, or related reasons, they recognise the burden employers may bear to keep the position open.  Legal Framework The redundancy issue came to light in the matter between Brandt v Quoin Rock Wines C152-2021 (LC). The Cape Town Labour Court was tasked with deciding whether Quoin Rock Wines (the Respondent) had unfairly dismissed Brandt (the Applicant) due to her pregnancy. Brandt, the company’s financial manager, became pregnant after undergoing IVF treatment. Despite informing the company of her pregnancy and expected due date, complications led to her child being born prematurely, requiring hospitalisation. Brandt continued some duties during this period, going the extra mile to ensure smooth operations while in the hospital.
 She submitted a maternity leave plan to the CEO but continued, during the COVID-19 pandemic, to delegate some tasks to a colleague. Meanwhile, the CEO took over some of her responsibilities and hired an external accountant for tax matters previously handled by Brandt. Eventually, the CEO decided to retrench Brandt, citing redundancy due to alternative arrangements and potential cost savings. Brandt argued that her job wasn’t redundant as the CEO and others were still performing her tasks. Ruling The court found that Brandt demonstrated her dismissal was linked to pregnancy, making it automatically unfair. The burden of proof shifted to the employer, who failed to establish genuine operational reasons for dismissal. The court concluded that pregnancy-related issues were valid reasons, awarding Brandt 16 months’ salary as compensation. Balancing Operational Needs and Employee Rights Employers must comprehend the proper implementation of retrenchments in alignment with operational needs in the workplace. Preceding legal judgments have highlighted the importance of a comprehensive approach to safeguarding women’s rights and promoting equality. The challenges employers face when employees initiate maternity leave are recognised both societally and legally as an acknowledgement of women’s equal status within the workplace. Conclusion Employers can retrench a pregnant employee for genuine operational reasons, adhering strictly to procedural requirements. However, employers must exercise caution when contemplating the retrenchment of pregnant employees, as a commissioner may perceive such actions as a strategy to justify unfair dismissal based on pregnancy. Should you need assistance with the retrenchment process, don’t hesitate to contact our offices at 0861 737 263. Invictus Group specializes in retrenchments and can assist clients in ensuring a smooth and efficient process. [...] Read more...
While seldom addressed, there exists a prevalent “taboo” surrounding discussion about salaries among employees. Typically, employment contracts explicitly forbid individuals from sharing their salary details with colleagues, deeming such disclosures a potential disciplinary violation in the eyes of employers. It is understandable that employers will attempt to prohibit such discussions as it could cause severe unhappiness in the workplace and upset the delicate balance between the employer/employee relationship.. Case Study However, Section 78 (1)(b) of the Basic Conditions of Employment Act states that every employee has the right to discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person”. Keeping this in mind the Labour Court has recognized that in the case of Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997)18IJL1098 that remuneration is always a term and condition of the employment contract”. Some employers attempt to have their employees “contract out of their rights” via a clause in their employment contracts however section 79 (2) states that no person may do, or threaten to do, any of the following: a) Require an employee not to exercise a right conferred by this part;  b) prevent an employee from exercising a right conferred by this part; or  c) prejudice an employee because of past, present or anticipated-  i. failure or refusal to do anything that an employer may not lawfully permit or require an employee to do;  ii. Disclosure of information that the employee is lawfully entitled or required to give another person; or  iii. Exercise of a right conferred by this part.” The effect of this is that employers are prohibited from: (a) requiring an employee not to disclose the details of their remuneration to any person;  (b) preventing an employee from disclosing the details of their remuneration to any person; or (c) prejudicing an employee because of a past, present or anticipated disclosure of such details. Additional Guidelines In addition, s79(2) provides that no person may discriminate against an employee for exercising a right conferred by this Part. Section 79(3) provides further that no person may favor, or promise to favor, an employee in exchange for the employee not exercising a right conferred by this Part. After an employee has discussed his wages with another employee, it would be unlawful for the employer to punish or retaliate against such employee for having done so. It is also unlawful for the employer to question, threaten, or put an employee under surveillance for having had such conversations.  Additionally, it is unlawful for the employer to have a workplace rule, policy, or hiring agreement that prohibits employees from discussing their wages and/or requiring the employer’s permission before entering into said conversations. Because of s79, a clause in a contract of employment forbidding an employee from exercising their right to disclose their wages will be unenforceable. Further, any disciplinary action taken against an employee for exercising such a right could be considered unfair. This section does not however grant employees the right to discuss the remuneration of other employees. Employers may prohibit employees from discussing salary information of other employees. Thus, should the remuneration details of an employee come to the attention of another employee, the latter employee cannot rely on s78 and 79 to avoid disciplinary action where his conduct contravenes a workplace rule. Remuneration Discussion However, when discussing remuneration, employees need to ensure that they are truthful about the details regarding their conditions of their employment that they are discussing and cannot be deceitful with the intention of causing an unpleasant working environment. In the court case of Bethape v Public Servants Association and Others (J1709/2016) (2016) ZALCJHB 577 (9May 2016) the court dealt with a protected disclosure made by an employee, the court was clear regarding the necessity for an employee seeking protection from the law to act in good faith and, without good faith shown, cannot demand protection. Therefore, employees who threaten to disclose their salary to other staff in order to gain from the employer are not acting in good faith. This also extends to employees becoming insolent or insubordinate. Speak to one of our legal professionals for more information regarding remuneration and employees. [...] Read more...
In an arbitration concerning misconduct, the Presiding Commissioner is tasked with deciding whether the disciplinary hearing’s-imposed sanction was fair and fitting. Guidelines The guidelines outlined in the Commission for Conciliation, Mediation, and Arbitration (CCMA) regarding misconduct proceedings articulate the following: “The key question is whether the employer could reasonably have justified the decision to terminate employment based on the severity of the misconduct, either because the misconduct itself made the ongoing employment relationship untenable or due to the combined impact of the misconduct when considered alongside other instances of wrongdoing. The Arbitrator is tasked with making a fair and impartial evaluation of the Employer’s decision, considering all pertinent factors. This assessment should be equitable, considering the interests of both the Employer and the Employee. In this process, the Arbitrator must carefully consider and comprehend the reasoning behind the Employer’s rules and standards. Additional factors to be weighed include industry norms, the Code of Good Practice, the Guidelines of Misconduct Proceedings, and the Arbitrator’s expertise.” Case Study In the following landmark case of Sidumo and Another v Rustenburg Mines Ltd and Others (2008) (2) SA 24 (CC), the prime factors that the arbitrators looked at were explained. In this case, the court judiciously deliberated on the pertinent factors for determining fairness in employment matters. Employers are strongly advised to familiarise themselves with this case. The court’s rationale encompassed a comprehensive examination of various elements, emphasising the intricate considerations involved in assessing fairness within the employment relationship, which are the following: The general vulnerability of Employees to unfair decision-making. The importance of the security of employment. The importance of the rule that was breached. The reasons for establishing the rule, including its reasonableness. The harm caused by Employee’s conduct. The impact that it had on the trust relationship. The effect of setting a precedent. The reason why the Employer imposed the sanction of dismissal. The basis of the Employee’s challenge to the dismissal. Whether additional training and instructions may result in the Employee not repeating the misconduct. The effect of the dismissal on the Employee. The Employee’s long service record. The industrial norms. Factors to consider It is essential to bear these considerations during the disciplinary hearing phase itself. Employers should take proactive measures to guarantee that the chairperson overseeing a disciplinary hearing comprehensively grasps the relevant factors and endeavours to apply them objectively. By instilling an understanding of these factors at the disciplinary hearing stage, employers contribute to a fair and equitable disciplinary process, fostering an environment where decisions are made judiciously and following the principles delineated in the aforementioned case. Speak to one of our legal professionals for more information regarding arbitration and determining the appropriate sanctions. [...] Read more...
Disciplinary proceedings in South Africa have become increasingly criminalised, and the criminalisation of this process often starts when the charges on an employee’s notification to attend a disciplinary hearing are split up, even though the charges all emanate from a single alleged act or omission. This practice has become subject to ever-increasing scrutiny from South African courts, and our courts are buckling down on the wording of charges with each new case presented before it. The rule Our courts have reiterated the basic rule about the formulation of charges in numerous cases, most notably the cases of National Police Commissioner v Myers and others 7 BLLR 688 (LAC) and EOH Abantu (Pty) Ltd v CCMA and Others (JA4/18) ZALAC 57 (LAC) 12 BLLR 1304 (LAC). In the latter case, for example, the learned Appeal Court Judge stated in paragraph 15: “One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them.” These cases confirm the norm that our courts expect (in relation to the formulation of charges) that: The employee need only be aware of and sufficiently understand what it is that they are being charged with to warrant a defence without any unfair prejudice towards them. The implications of formulating charges incoherently or splitting charges Two recent cases highlight the importance of correctly formulating charges, namely the cases of Mogane v Standard Bank (Pty) Ltd 32 CCMA 7.17.2 and Makuleni v Standard Bank of South Africa Ltd and Others 4 BLLR 283 (LAC) (8 February 2023). In Mogane v Standard Bank (Pty) Ltd 32 CCMA 7.17.2, the Commissioner was tasked with determining whether funds received by the applicant in the case were a loan or whether these funds amounted to a gift. The applicant claimed that the funds were a loan, whilst the bank’s disciplinary code listed the “borrowing” of money from clients as an offence warranting dismissal. The respondent claimed that these funds were merely a gift. The Commissioner succinctly explained that the parties’ dispute revolved around how the loan stood to be characterised, and this characterisation formed the basis of their arguments. The Commissioner reiterated the rule that an employee needs merely to understand what they are charged with in sufficient detail for them to raise a defence thereto, without prejudice, and that the characterisation of the loan in question as an academic dispute only served to delay the proceedings. In Makuleni v Standard Bank of South Africa Ltd and Others 4 BLLR 283 (LAC) (8 February 2023), the Appeal Court Judge was tasked with the review of an award made by a Commissioner in finding that the branch manager in question had been unfairly dismissed. Though the formulation of the charges at hand was not the main issue in dispute, it certainly did not favour the First Respondent’s (the employer) case for the charges to be formulated as they were. The learned Appeal Judge noted the following in paragraph 6: “Some observations about this formulation are appropriate. It comprises generalised conclusions and is bereft of a single concrete allegation of fact. A request for further particulars was de facto refused in an answer which simply said that the ‘offences’ occurred since August 2015, i.e. over a two-year period.” The appeal was upheld in favour of the employee in this case, which serves to confirm that the formulation of charges plays an important role when the events that transpired in any case stand to be investigated. Conclusion For employers, these cases confirm that a simple, succinct, and sufficient description of precisely what an employee has to answer to in disciplinary proceedings can help keep disciplinary proceedings simple and aid in decriminalising our disciplinary proceedings. Speak to one of our legal professionals for more information regarding disciplinary proceedings and splitting charges. [...] Read more...
Can an employee be dismissed without a fair procedure? The answer is no. It holds significant importance for an employer to be aware of the necessary procedures to adhere to when considering the dismissal of an employee. The employer must substantiate its case. This stems from the provision in section 188 of the Labour Relations Act (LRA), which places the burden on the employer to demonstrate the procedural and substantive fairness of employee dismissals. The Labour Courts exhibit little tolerance for employers deviating from their established disciplinary procedures or failing to adequately justify their termination decisions in light of the case’s specific circumstances. Ensuring Due Process in Employment Matters Failure to follow such a procedure could lead to the employee taking the matter to the relevant council, CCMA or Labour Court, resulting in a potential outcome that typically includes (1) reinstatement, (2) re-employment, or (3) compensation for up to 12 months. Therefore, it is paramount for the employer to abide by a set procedure, even though our legal system may not explicitly define the same. Common law principles that the employer should ensure compliance with exist. “Audi alteram partem” is a Latin legal principle that translates to “hear the other side.” It emphasises the importance of giving both parties in a legal dispute an opportunity to be heard and present their side of the argument before making a decision. This principle ensures fairness and due process in legal proceedings, allowing for a balanced and informed judgment. What is the procedure to follow? The steps an employer must take before terminating an employee’s employment are clearly outlined in Schedule 8(4) of the Labour Relations Act 66 of 1995, known as the Code of Good Practice. This code delineates the crucial procedural criteria that employers need to adhere to before carrying out a dismissal, which includes the following: The employer must inform the employee of the misconduct allegations in a manner and language that the employee can readily comprehend. This is to ensure the employee has clarity and understands the allegations against him/her so the employee can provide a response to state their case. The employee should have the opportunity to present their perspective in response to the allegations and be granted a reasonable amount of time to prepare their response. The duration considered reasonable often hinges on the complexity of the allegations and their relevance to the case at hand. A minimum period of 48 hours notice is typically required to ascertain if the employee has been afforded sufficient time. The employee should be permitted to use the support of a trade union representative or a fellow employee when preparing their response and presenting their case during any inquiry. Following the inquiry, the employer should communicate the decision reached to the employee, and it is advisable to provide the employee with written notification of this decision. If an employee is dismissed, they should receive an explanation for the dismissal, along with a reminder of their rights to refer the matter to an appropriate council with jurisdiction, CCMA, or any dispute resolution procedures outlined in a collective agreement. During the disciplinary inquiry, it is essential to note that the employee should be given a fair chance to present their case by giving his/her testimony necessary evidence and the opportunity to call witnesses if necessary. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. Case Study In the recent bargaining council decision of National Union of Furniture & Allied Workers South Africa obo Javulani / Dreamworx Bedding (Pty) Ltd (2020) 12 BALR 1257 (FBC), an employee was dismissed after he was accused of violence in the workplace, bullying colleagues and abusing female employees as well as making explicit death threats against foreign employees within the organisation. In this case, no formal disciplinary hearing was conducted, nor was the accused formally notified of said hearing taking place. The employer held a meeting whereby the complaints brought against the accused were heard, whereafter a second meeting was held where the accused was informed of the complaints. The accused denied the allegations. However, the consistent and corroborated versions of the complaints brought by various employees were deemed true on a balance of probabilities. The Council found that Item 4 of Schedule 8 provides for exceptional circumstances whereby a formal disciplinary inquiry can be deviated from due to witness intimidation or unwillingness to testify in formal proceedings. The dismissal was found to be fair in the circumstances. Upholding Procedural Fairness In summary, it is of utmost importance for employers to consistently adhere to the proper procedures when considering the termination of an employee. Procedural fairness stands as an essential prerequisite in any dismissal scenario. This entails allowing both the employer and the employee to present their perspectives and to be heard. In instances where the stipulated procedures are not diligently followed, and the employee escalates the matter to the appropriate council or the Commission for Conciliation, Mediation and Arbitration (CCMA), a commissioner, upon detecting procedural deficiencies, may decide to grant compensation to the employee. This compensation serves as an award against the employer due to their failure to uphold the essential principle of procedural fairness in the context of a dismissal. Please contact us if you are unsure of proper conduct while upholding procedural fairness. We are here to assist you during every step of the process. [...] Read more...