Lessons from Legal Precedent – Allegations of Victimisation & Dismissal for Union Activities
In this case, the Respondent argued that the individual Applicants were dismissed for allegedly intimidating their colleagues into joining the Association of Mineworkers and Construction Union (AMCU). On the other hand, AMCU claimed that the [...]
Compliance & Collective Agreements – Lessons from Case Law
The case National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) v Bloch N.O. offers critical insights for employers, particularly those managing incentive schemes under collective agreements. This judgment sheds light on the [...]
Use It or Lose It
The Basic Conditions of Employment Act (BCEA) regulates annual leave in South Africa. The BCEA provisions for annual leave do not apply to employees who work fewer than 24 hours per month for an employer. [...]
Challenging a Compliance Order
When an employer receives a compliance order, they essentially have two options: The employer can comply with the compliance order or; The employer can challenge or oppose the compliance order. This article focuses only on [...]
Broadening employer representation in the Civil Engineering Industry
"You can't play a symphony alone, it takes an orchestra to play it." This quote by Navjot Singh Sidhu perfectly encapsulates the essence of a recent arbitration award that has significant implications for employer representation [...]
The Sources of Compliance at Bargaining Councils
Employers who fail to comply with their industry’s Main Collective Agreement will end up on the receiving end of compliance orders from the relevant Bargaining Council. Before delving into the process following the issuance of [...]
The Art of Compliance
One of the responsibilities of the Department of Employment and Labour is to ensure that all employers adhere to the Basic Conditions of Employment Act (BCEA) and the National Minimum Wage Act (NMWA). These Acts [...]
From Pension to Penalty: Employers Seeking Damages for Employee Misconduct
The Basic Conditions of Employment Act (BCEA) regulates deductions against the benefits of the employee in accordance with provisions set out in Section 34 of the Act. The BCEA specifically addresses deductions in respect of [...]
The Tidal Wave of Uncertainty with Compliance Orders
As an employer, you may have felt overwhelmed after discovering your business on a Labour Inspector’s “most wanted” list, receiving a compliance order, and struggling to find guidance. With CEO on your side, those days [...]
Exemptions to the National Minimum Wage Act
The National Minimum Wage Act (NMWA) represents a significant step towards ensuring fair pay and improving living standards for workers in South Africa. It establishes a legal minimum wage that employers must pay their employees. [...]
Discretion Versus Discrimination
The recruitment and selection processes are critical operational aspects of any organisation. Although employers generally have complete discretion in determining whom to appoint for a respective position, there are exceptions to how this discretion can [...]
Mind the Gap: Labour Court Rules on Mental Health and Misconduct in the Workplace
As a result of the Covid-19 pandemic and other factors, many employees struggle with physical and mental illness. In the more recent case of Pahlanga vs The Petroleum Oil and Gas Corporation of South Africa [...]
Sectoral Determinations & Wage Variations under the NMWA
The National Minimum Wage Act (NMWA) is a landmark piece of legislation aimed at establishing a baseline of fair pay for workers across South Africa. While the Act sets a general minimum wage, it also [...]
EPWP Contracts & Learnership Allowances: Implications of the National Minimum Wage Act
The National Minimum Wage Act No 9 of 2018 (NMWA) has introduced significant changes to labour remuneration in South Africa. While its primary goal is to ensure a basic standard of living for all workers, [...]
Lessons from Legal Precedent: Fraudulent Medical Certificates
Employers in South Africa have long faced challenges related to the misuse of sick leave and fraudulent activities related to the acquisition of sick leave certificates. A recent case, Woolworths (Pty) Ltd vs Commission for [...]
Independent Contractors & CCMA Disputes: Understanding Section 73A
The distinction between employees and independent contractors holds significant legal implications, especially concerning disputes and resolutions at the CCMA. Section 73A of the BCEA provides that employees or workers earning below the threshold of R254 [...]
The Limits of Trade Union Representation
The recent Constitutional Court judgment of AFGRI Animal Feeds v. NUMSA & Others (CCT 188/22) has pivotal implications for employers. This landmark ruling, alongside the established precedents in the Lufil Packaging (Isithebe) (A division of Bidvest [...]
Automatic Termination Clauses – Problematic Clauses in Employment Contracts
Automatic termination clauses in employment contracts, also known as "self-executing" clauses, stipulate that the employment relationship will end automatically upon the occurrence of a specific event, such as the expiry of a fixed-term contract or [...]
An Arrested Employee Is Not a Get Out of Jail Free Card for the Employers
Many employers believe that the employment relationship automatically ends if one of their employees is arrested or imprisoned. This assumption is based on the employee’s unavailability to return to work, and, more importantly, the trust [...]
Deductions – Problematic Clauses in Employment Contracts
It frequently occurs that employees who receive an alternative work opportunity resign without giving the prescribed notice period. Previously, CEO published an article in which we specifically addressed whether the employer was required to remunerate [...]
Shop Stewards and Representation Rights: Labour Court Upholds Company Policy
Schedule 8(4)(2) of the Labour Relations Act, the Code of Good Practice, states that an employee can be represented by a fellow employee or a union representative during a disciplinary hearing. However, the question arises: [...]
Zero-Tolerance – Problematic Clauses in Employment Contracts
Upon appointment in a new position in a business or organisation, employees are usually issued employment contracts that contain a myriad of clauses, terms, and conditions. One such clause which often gets overlooked is the [...]
Discretionary Bonuses – Problematic Clauses in Employment Contracts
South African Labour Law does not provide for compulsory payment of bonuses unless the employer falls within the ambit of a specific Bargaining Council or if a particular company policy makes such a provision. Therefore, [...]
Instructions to Work Overtime – Problematic Clauses in Employment Contracts
Working overtime is essential to an employer’s operational requirements in specific industries within our labour-sphere. If an employee refuses to work overtime when their employer requests it, it is necessary to consider the lawfulness and [...]
How “Immediate” Can a Resignation Without Notice Be
The legalities behind resignations and notice periods have been a source of confusion for employers. Often, employers are unsure whether the Basic Conditions of Employment Act 75 of 1997 (BCEA) takes precedence over the explicit [...]
Deductions, the Age-Old Debate at the CCMA & Stipulations of the BCEA
The CCMA is often faced with matters where employees claim that their employer has made certain unlawful deductions from their salaries. This article seeks to unpack and clarify the current position in our law regarding [...]
Sour Lessons from the “Lemon Juice” Case: How to Sweeten Fair Dismissal Practices for Employers
The Labour Court of South Africa recently delivered an interesting judgment on 29 April 2024, in the case of SACCAWU obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR2281/21) [2024] ZALCJHB 180 [...]
Understanding Family Responsibility Leave
According to Section 27 of the BCEA, family responsibility leave is available to employees who have been with the same employer for more than four months and work more than four days per week. This [...]
Future-Proofing the Workforce
There has been an undeniable shift in the use of technological advances in the workforce. Leveraging these advances has proven to be not only beneficial in performing tasks but absolutely crucial. Technological advances such as [...]
The Importance of Employer Registration with Bargaining Councils
In South Africa, labour relations are intricately shaped by the presence and influence of bargaining councils. These councils are pivotal in specific industries, ensuring fair and standardised conditions of employment. For employers operating within such [...]
Balancing Flexibility and Stability
The origins of employment relationships derive from principles of Common Law and remain the basis of employment relationships in labour relations as they exist today. Many of the provisions of the Common Law employment contract [...]
Maximising Time Off
Annual leave is vital to all employees' well-being, offering them a much-needed respite from their daily work endeavours. Embedded within South Africa’s labour framework, the Basic Conditions of Employment Act (BCEA) outlines the rights and [...]
Are employers permitted to scrutinise a prospective employee’s criminal and credit history?
During the recruitment process, it is common practice for many employers to ask prospective employees questions about their criminal and credit records. The purpose, in general, is to ascertain the candidate's suitability for the position. [...]
Breaking Barriers: Ensuring Workplace Equality
As we evolve and embrace diversity, we recognise the importance of acknowledging every individual and their differences. Fortunately, South Africa stands as a beacon of upholding human dignity and celebrating every individual’s diversity. South Africa’s [...]
The ABC’s of TES: Understanding the Deeming Provision
Employers often use service providers to perform certain functions or duties within a workplace, which the employer may not be able to do or perform itself. As per South African legislation, these providers are generally [...]
Beyond 9 to 5: Unraveling Overtime Work in South Africa
On the 8th of November 2022, the Labour Court heard the matter between the Association of Mineworkers and Construction Workers Union obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration and Others [2023] [...]
Clearing the Haze: The Labour Appeal Court’s Judgment on Cannabis in the Workplace
The recent Labour Appeal Court (LAC) decision in the case of Bernadette Enever vs Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC has sparked widespread debate within the [...]
Understanding Employment Relationships in the Developing Gig Economy
The Fourth Industrial Revolution (4IR) has catalysed a shift towards freelancing and independent contracting, emphasising the need to examine Section 200A of the Labour Relations Act (LRA) alongside Section 83A of the Basic Conditions of [...]
What can you do if one of your employees refuses to testify at an arbitration or disciplinary hearing?
Employers might face situations where witnesses necessary for an arbitration or disciplinary hearing are unavailable because they have left the company or moved abroad. However, what should employers do if a current employee, who is [...]
Does a Medical Certificate from a Traditional Healer Comply with Section 23(2) of the Basic Conditions of Employment Act (BCEA)?
In essence, Section 23(2) of the BCEA sets out that the medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and [...]
Let’s Negotiate – Tips for Employers to Improve their Negotiating Skills
Negotiating, or being a good negotiator for that matter, is a skill many may claim to possess but that few truly possess. Many of us have encountered a family member, colleague or acquaintance who boasts [...]
Reimagining Social Justice: Challenging the Status Quo in South African Labour Law
In the pursuit of social justice within South Africa's labour law, employers often find themselves navigating a complex system filled with biases and challenges. The Commission for Conciliation, Mediation, and Arbitration (CCMA), while intended to [...]
A Playbook on Motivation: “Why Motivating People Doesn’t Work… And What Does”
In the world of work, motivating your team or staff isn't just about dangling carrots or wielding sticks. If you're still relying on outdated methods like motivational speeches, posters or pizza parties, it's probably time [...]
Leadership & Social Justice
In business today, the pursuit of success goes hand in hand with a commitment to social justice. At the forefront of this movement are business leaders who understand that true prosperity comes from fostering inclusivity, [...]
Labour Court Jurisdiction: Lessons from Legal Precedents
The recent Labour Court matter of Independent Municipal & Allied Trade Union on Behalf of Espach v Polokwane Local Municipality (2024) 45 ILJ 308 (LC) revolves around an application that was made under Section 158(1)(c) [...]
Streamlining Disciplinary Procedures: Lessons from Legal Precedents
In a notable judgment from the Labour Court of South Africa, the case of Mark Strydom v ArcelorMittal South Africa (J 1764/2023) has captured the attention of legal and labour relations experts. The dispute centred [...]
The Role of Dispute Resolution in Upholding Social Justice
Disputes in the workplace are an inevitable aspect of organisational dynamics. However, how these disputes are handled can profoundly influence the pursuit of social justice within corporate environments. In South Africa, the Commission for Conciliation, [...]
Labour laws as levers of change: South Africa’s employment landscape
South Africa's employment environment is a nuanced terrain shaped by a complex interplay of historical legacies, legal mandates, and socio-economic imperatives. At the heart of this dynamic lie the country's labour laws, which serve as [...]
A foundation of fairness: Understanding social justice in business
In the contemporary business environment, the notion of “social justice” transcends mere rhetoric, evolving into a foundational principle essential for fostering sustainable and equitable workplace environments. Rooted in historical precedents such as the International Labour [...]
Cyber-Threats – Challenges & Solutions for Businesses
In an era of digital transformation, our interconnected world offers unparalleled convenience and opportunity. However, it also exposes us to a dynamic and multifaceted underworld of cyber threats, posing significant challenges on a global stage [...]
Is a reference letter worth the paper it’s printed on?
Many employees don't fully appreciate the importance of a reference letter and how significantly it can benefit their future job prospects. In today's job market, departures from employment don't always come through resignation or reaching [...]
TikTok? Rather not
It is a new age, and Generation Z, aptly known as Zoomers, are beginning to make up a large part of the workplace. With that comes employees who actively engage in all forms of social [...]
Planning Ahead – The Workforce & Its Importance
Throughout this current series of articles, words such as “strategy”, “leadership”, “change”, and “organisational performance” have been used extensively. It is easy to understand why since the modern business or workplace constantly needs to adapt [...]
Resign, or I’ll Have to Report You
As an employer, you may encounter challenging scenarios involving employee misconduct within your workplace. It's imperative to understand that certain acts of misconduct not only breach company disciplinary codes but also constitute criminal offences under [...]
A Million Rand’s Worth of Reasons to Avoid a Contempt of Court Order
The act of contempt may manifest itself in various forms by parties during the processes of the CCMA and Bargaining Councils. However, contempt is not limited to conduct during the process, as parties may still [...]
Digitalisation of the Workplace
In the wake of the pandemic, the benefits of digital adoption have become increasingly apparent to organisations. The ability to conduct business remotely, facilitated by technological advancements, has prompted many businesses to embrace a hybrid [...]
Keep Watering the Grass
The modern workplace or business environment is nothing like it was in yesteryears when employees started from the bottom and worked their way up to the top after thirty to forty years of selfless dedication [...]
Aligning Annual Wage Increments with External Realities
South African businesses faced a multitude of challenges during the preceding financial year. Load shedding posed a significant obstacle, disrupting operations and increasing costs. The railway freight logistics sector also grappled with security challenges, including [...]
Beware! The Agents are coming!
Section 213 of the Labour Relations Act defines a collective agreement as: “A written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade [...]
It’s Time to Step Up: Elevating your Leadership Abilities for an Evolving Business Environment
Much has been written and will continue to be written about the modern workplace as it is constantly changing and evolving. While this sentiment remains true, it can never be forgotten along the way that [...]
Crafting a Culture of Training Excellence
The synergy between practical training and employee engagement in South Africa's workplaces is the bedrock of organisational success. Employers who understand the intricate dance between nurturing talent and fostering a culture of engagement often find [...]
Moving forward with an applicable Action Plan and Timeline
This article continues on our Monday article titled A Blueprint for Workplace Success in South Africa for Employers and Employees Alike, where we will provide an applicable timeline to reach your adaptability goals. Consider the [...]
A Blueprint for Workplace Success in South Africa for Employers and Employees Alike
In the dynamic landscape of the South African business environment, the ability to adapt has become a crucial component for achieving unprecedented success. As employers navigate through technological advancements, economic shifts, and unexpected global events, [...]
Optimising Skills Development
Continuing with our theme from last week’s article, skills development stands as a strategic investment for organisations aiming to achieve and maintain a favourable B-BBEE level while adhering to the requirements of the Skills Development [...]
Rising Tides: The National Minimum Wage & Keeping Your Business Buoyant
The recent announcement by the Department of Employment and Labour to increase the National Minimum Wage (NMW) from R25.42 to R27.58 per hour, effective from 1 March 2024, marks a critical juncture for South Africa’s [...]
An Update is Available! Cultivating Operational Integrity through Policies, Processes, and Agreements
Have you ever felt that sinking feeling when your laptop decides it's time for an update, right when you're in the middle of finalising an urgent report or you’re about to hop onto a critical [...]
CEO’s Elevate’ED Training: Innovate | Educate | Advocate
In an ever-evolving business and legal landscape, the CEO Training Dept. recognises the pivotal role of employer and staff training in fostering organisational success. As employers strive for growth and sustainability in a harsh economy, [...]
Time To Set the Record Straight – An Analysis of a Commissioner’s Mindset in Default Awards
We at CEO have published numerous articles on Default Arbitration Awards made by the CCMA. Those articles primarily focused on the remedies available to the employer in terms of the Labour Relations Act (LRA). This [...]
Learning to Earn – The Characteristics of a Learnership Agreement
Learnership agreements are governed by the Skills Development Act 97 of 1998 (SDA) read with the Basic Conditions of Employment Act 75 of 1997 - Sectoral Determination 5. Section 16 of the SDA defines “learnerships” [...]
Think Again Before Pulling a “Sickie” – The Abuse of Sick Leave
The best place to start dealing with sick leave abuse as an employer is to understand what the Basic Conditions of Employment Act (BCEA) states regarding sick leave. Section 22 of the Basic Conditions of [...]
Sun, Sweat, and Protection
There are instances in which the services of employees are required not only for a specific period but also for a specific occasion. The limited duration of the need of employees would necessitate that they [...]
Harvesting Rights
In the South African landscape, the conditions of employment are contained in the Basic Conditions of Employment Act (BCEA). The BCEA is a nucleus that regulates and gives effect to fair labour practices as envisioned [...]
Time is of the Essence – The Three-and-a-Half-Year Delay in Workplace Justice
In the recent case of Mapyane v South African Police Service & Others (JR1948/10) ZALCJHB, the importance of prompt disciplinary proceedings was underscored. The Applicant was dismissed from the South African Police Service (SAPS) on [...]
Fair Work, Fair Home
A domestic worker refers to someone who is remunerated for performing domestic work in a private household. This includes individuals providing cleaning services, gardening, and caring for children, the elderly, or those who are sick, [...]
Collective Bargaining – The 2024 National Wage Negotiations for the MEIBC & BCCEI
Reflecting on 2022, members of the Metal and Engineering Industries Bargaining Council (MEIBC) undoubtedly recall a momentous juncture that reshaped the landscape for Small, Medium, and Micro Enterprises (SMMEs). During this significant period, official communication [...]
Greening the Workplace: ESG In South Africa
The escalating focus on Environmental, Social, and Governance (ESG) factors is reshaping the landscape of business operations globally. South African businesses, in tandem with the rest of the world, are integrating sustainability into their core [...]
Whose Mandate Is It Anyway?
Settlement agreements are an integral part of the dispute resolution process. Whenever there is a dispute, whether in the CCMA or internally in the workplace, the parties to the dispute are encouraged to settle disputes [...]
When Age Matters: Retirement or an Automatically Unfair Dismissal?
South African labour laws lack a specified retirement age, and terminating an employee based on age may violate Section 187(1)(f) of the Labour Relations Act (LRA), which deems dismissals automatically unfair for arbitrary reasons such [...]
Rescissions During the Festive Period
The festive season is a time of joy and celebration. However, while you might enjoy some time on the beach with your family and friends, the CCMA is still operational and proceeding with cases. If [...]
‘Tis the Season to be Responsible
With the festive season soon approaching, many employees are counting down the days until they can close their business doors for 2023 and commence their annual leave. Unfortunately, for some, the festive season is either [...]
Away for the Holidays
As you savour your well-deserved holiday following a busy year, the last thing you want is to cut your vacation short to travel back for a CCMA matter. The good news is that the Commission [...]
Navigating the Holiday Landscape
As the holiday season approaches, employees and employers alike find themselves preparing for a well-deserved break. However, the festive period can bring about unexpected challenges, especially if your workplace temporarily closes its doors. In this [...]
Big Little Lies: Why Being Honest On Your CV Is Important
Standard practice has always been that one’s Curriculum Vitae (‘CV’) should be an accurate and up-to-date representation of one’s professional career. This allows prospective employers an opportunity to make informed decisions for their respective companies. [...]
Navigating Minimum Wage Compliance: Lessons from the Quantum Foods Case
The National Minimum Wage Act (NMWA) has been a significant milestone in the pursuit of social and economic justice for vulnerable workers in South Africa. It aims to protect low-wage workers from exploitation and improve [...]
Beyond the Basics: Understanding Severance Pay Calculations in South Africa
Severance pay in South African labour legislation is primarily governed by the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA). The calculation of severance pay typically depends on the specific circumstances [...]
Is Severance Pay Due if Employees are Employed on Fixed-Term Contracts
In our previous article, we discussed the entitlement to severance pay in terms of Section 41 of the Basic Conditions of Employment Act (BCEA) and the circumstances under which the benefit arises. Severance pay entitlement [...]
Navigating the Iceberg – Harnessing the power and managing the perils of Digital Marketing and Social Media in Business
Digital marketing and social media are like an iceberg. What's visible – the power to reach a global audience, engage in real-time, and create impactful brand narratives – is just a fraction of the story. [...]
Maintaining Employee Focus & Aligning Organisational Strategies
As the year draws rapidly to a close, employers are faced with the critical task of ensuring that their workforce remains focused on current objectives and the fulfilment of their organisation’s strategy while also looking [...]
Sometimes, Goodbyes Don’t Cost a Thing
In terms of Section 41(4) of the Basic Conditions of Employment Act (BCEA), an employee who is dismissed for operational requirements is not entitled to severance pay if the employee “unreasonably refuses to accept the [...]
Sharing the “Maternal” or Rather the “Parental” Responsibility
In a groundbreaking decision, the Johannesburg High Court recently rendered a pivotal verdict in the case of W van Wyk and others vs. the Minister of Employment and Labour, reshaping the landscape of maternity and [...]
Compensation for Commitment: Understanding Severance Pay in South Africa
The question of whether employees are entitled to severance pay is a well-established aspect of South African statutory labour law. While the circumstances under which severance pay becomes due to employees are relatively limited, it's [...]
Evidentiary Enlightenment: The CCMA’s Revamped Rules for Effective Dispute Resolution
In April 2023, significant amendments to the Rules of the Commission for Conciliation, Mediation and Arbitration (CCMA) came into effect. Among these amendments, Rules 29 and 37 have been refined to provide explicit guidance on [...]
Big Brother is Watching: Monitoring and Enforcing the provisions of the Employment Equity Act
By this time, CEO members and readers of this forum will better understand the inner workings of the Employment Equity Act (EEA) and the effects it may have on employers. Now that we know what [...]
Killing Time Might Kill Your Case
Intoxication in the workplace and employees reporting for duty under the influence are considered serious forms of misconduct. Employers routinely grapple with such offences. Recently, there have been cases involving intoxicated employees that have garnered [...]
The Employment Equity Act: Does it Apply to My Business?
The Employment Equity Act 55 of 1998 (EEA) aims to achieve workplace equity by promoting equal opportunities and fair treatment. The Act further seeks to implement affirmative actions to uplift and aid disadvantaged groups in [...]
OK, I’m Ready to Settle the Dispute
The primary function of the CCMA is to embark on consensus-seeking processes to resolve labour disputes. This is achieved by the assigned commissioner engaging with the parties, establishing the issues in dispute, and then attempting [...]
The Employment Equity Act and its Relationship with South African Legislation
South Africa is one of the world's most culturally, racially, and economically diverse countries. To ensure that everyone enjoys equal opportunity and fair treatment in the workplace, the Employment Equity Act of 1998 (EEA) was [...]
To Suspend or not to Suspend, that is the Question
It has become quite common in arbitration proceedings that the Applicant would raise the point that the trust relationship between the employer and employee had not been irretrievably broken insofar as the employer did not [...]
The Benefits of Having an Employment Equity Plan in Place
Employment Equity ensures that suitably qualified individuals from designated groups (previously disadvantaged and those discriminated against in the past) have equal opportunities and are equally represented in all business levels and categories across different workplaces. [...]
What exactly is the Commission for Employment Equity?
The Commission for Employment Equity, a statutory body whose roles include advising the Minister of Labour on matters concerning the Employment Equity Act (hereinafter referred to as “the Act”), is established in accordance with Section [...]
The Pitfalls to Avoid During the Implementation of Fixed-Term Contracts
In terms of Section 198B(1) of the Labour Relations Act (LRA), a fixed-term contract is defined as “a contract of employment that terminates on the occurrence of a specified event, the completion of a specified [...]
Sustaining Employee Motivation
Upon reflection, it seems unreal how fast this year has progressed already. While spring is in the air, it also serves as a stark reminder that the last few months of the year will speed [...]
From Pixels to Practical Insight: How to Level Up Your Leadership (A Millennial Gamer’s Guide)
In contemporary leadership, one generation emerges as a force to be reckoned with. Millennials (aged 27 to 42 as of 2023), often portrayed as tech-savvy and unconventional, have swiftly ascended the ranks in various industries, [...]
Navigating Premature Referrals, Specifically Dismissal Disputes
In the realm of South African labour law, the challenge of premature referrals in dismissal disputes has become a practical concern demanding careful consideration. Striking a balance between procedural adherence, determination of the dismissal date [...]
Safeguarding the Enforceability of Settlement Agreements
In the complex landscape of South African labour law, jurisdiction holds a pivotal role in determining the validity and enforceability of settlement agreements. Understanding the boundaries of jurisdiction is paramount for employers. In this article, [...]
The CCMA’s Jurisdiction Over Illegal Workers
From the point of departure, it is essential to acknowledge that the CCMA is a creature of statute, and jurisdiction will be limited to the powers given to the presiding Commissioner by the Labour Relations [...]
Elevating Equity: Addressing Unfair Discrimination and Constructive Dismissal, Illuminated by Chetty v Baker McKenzie
In the ever-evolving landscape of labour law in South Africa, employers face the complex challenge of maintaining a workplace that is not only productive but also fair and inclusive. Alleged unfair discrimination leading to a [...]
Divorced or inextricably linked? Determining Extra-Territorial Jurisdiction
Section 114 of the Labour Relations Act (LRA) provides that the Commission for Conciliation Mediation and Arbitration (CCMA) has the power to hear and determine a dispute between an employer and an employee where the [...]
Constitutional Court denies NEASA and SAEFA Leave To Appeal in major victory for SMMEs in the Metals Industry
In a pivotal ruling on 25 August 2023, the Constitutional Court dismissed the leave to appeal sought by NEASA and SAEFA. This follows the rejection of their previous appeals by both the Labour Court and [...]
The Long and Short of Short-Time
Short-time work, a strategic response to economic fluctuations, plays a pivotal role in South African labour law. This article aims to delve into the legal intricacies and practical considerations of short-time work, providing comprehensive guidance [...]
How Managerial Emotional Intelligence Drives Optimal Organisational Performance
The modern working environment has evolved into such a dynamic and diverse environment that the role of a manager has evolved to much more than just overseeing tasks and operations. The effectiveness of managers, and [...]
I’ve been laid off… Am I suspended?
Short-time work and lay-off can be considered an alternative to retrenchment; this became more prevalent since the Covid-19 pandemic when employers were forced to re-evaluate their business operations, some still recovering three years later, with [...]
Think twice before lodging falsified grievances
The work environment is teeming with different personalities and opinions, and it is for this reason that one might encounter an issue with other Employees in the workplace. To combat these issues, a structured system [...]
Protecting your Business and your Employees – The Importance of Loyalty and Trust
In this article of our “Mind Your Own Business” series, we shift our focus to a crucial aspect that underpins a thriving and sustainable work environment - the importance of loyalty and trust in [...]
Protecting your Intellectual Property – Important lessons from the EOH Judgment
In our continuing our series, “Mind Your Own Business”, this article explores the crucial aspect of protecting your intellectual property (IP) in the workplace. Intellectual property encompasses intangible assets such as patents, trade marks, [...]
The nexus between Restraint of Trade Clauses and Unlawful Competition – A Case Study
In our previous article, we emphasised the importance of proper employment contracts and highlighted the significance of including clauses relating to restraint of trade agreements – all aimed at adding an extra layer of [...]
The importance of having proper Employment Contracts that include a focus on Restraint of Trade Clauses
As a business owner, protecting your business and its interests is paramount to ensuring long-term success in the competitive South African labour market. One of the crucial steps in achieving this goal is having [...]
What steps need to be followed upon receipt of the Trade Union demands?
It is common knowledge that trade unions are recognised within the 1996 Constitution of South Africa, which provides for the right to join trade unions and for unions to bargain collectively and have the right [...]
The Great Balancing Act. Mastering the Risks and Rewards of AI in your Business
Decoding ChatGPT: Your new digital teammate, not a stand-in. Artificial Intelligence (AI) is the hot new hire in businesses worldwide, and if you're an ambitious entrepreneur in South Africa, you've likely caught on to [...]
Caught in Suspension. The dilemma of awarding performance bonuses when there are evaluation hurdles
In the recent case of Moraka / Road Accident Fund (2023), 32 CCMA 6.7.4 also reported at [2023] 7 BALR 786 (CCMA), it was determined that although the employee was suspended and their performance [...]
Temporary Employment Services and Organisational Rights
Temporary Employment Services (TES) have become increasingly popular in South Africa due to their flexibility and cost-effectiveness. However, due to their unique nature, governing legislation such as the Labour Relations Act as well as [...]
Understanding the Test for Constructive Dismissal in South African Labour Law
Constructive dismissal in South African labour law is not determined by whether an employee was forced to resign but by whether the working conditions were intolerable and unendurable. When an employee claims constructive dismissal [...]
Are you chasing Peak Organisational Performance? Consider these 3 focus areas
South Africa is a multicultural, dynamic, and ever-evolving country. This translates into the work environment that presents itself with its own unique challenges. Consequently, businesses and organisations face a myriad of challenges in maintaining [...]
Is it really a Trade Union? Simunye Workers Forum victory shifts the traditional idea of a trade union
In South Africa, one could strongly argue that the Labour Relations Act (LRA) is among the most significant pieces of legislation, given its historical context and the rights it regulates and protects. This argument [...]
Rights afforded to Trade Unions when Collective Agreements are extended to Non-Parties
In previous articles on the topic of organisational rights, we have mentioned that when it comes to the establishment of organisational rights at a plant level, the approach that is normally used is to [...]
Can two Unions act jointly to obtain Organisational Rights?
Employers and organisational rights generally present themselves like oil and water, a relationship born out of opposing views, with each party trying to obtain the best scenario to suit their relevant constituents, while never [...]
The role of the Essential Services Committee in safeguarding South Africa’s most vital industries
We have previously written about what an essential service entails and the main reasons why the Labour Relations Act (LRA) defines specific industries as “essential”. The definition of “essential services” is still broad; therefore, [...]
An analysis of the statutory requirements for promoting employees in a fair manner
The promotion of employees within the workplace environment is a discretion enjoyed by employers to exercise as they see fit. It is generally accepted that the exercise of this discretion by the employer should [...]
Indulging in Forbidden Fruit: Reserved for the Labour Appeal Court
The test for reviewing and setting aside an Award of the Commission for Conciliation Mediation Arbitration (CCMA) or that of a National Bargaining Council is whether the decision reached by the Commissioner/Arbitrator is one [...]
You Cannot Defy Your Constitution! Or Can You?
A Trade Union’s Constitution is like a rule book from which the Trade Union is governed. The Oxford English Dictionary defines a “Constitution” as “A body of fundamental principles or established precedents according to [...]
Which types of demands are Trade Union Members entitled to Strike over?
Section 213 of the Labour Relations Act (LRA) defines a strike and its purpose as a resolution to a grievance or dispute about a matter of mutual interest. There are two types of disputes: [...]
How Closed-Shop Agreements Impact Representation
The point of departure when dealing with a matter of representation is first to identify and interpret the condition that is attached to it. Closed-Shop Agreements, as contained in Section 25 of the Labour [...]
The Employee’s Right to Unionise and Trade Union Representation of Non-Members
The Constitution of the Republic of South Africa guarantees the right to fair labour practices. That right, in turn, includes the right of every worker to join a Trade Union; and every Trade Union [...]
What process needs to be followed to resolve disputes at Plant Level?
Dealing with disputes at Plant Level can be a complex and challenging process for Employers. Disputes that are not resolved efficiently and effectively can negatively impact productivity and Employee morale, resulting in financial losses [...]
What process needs to be followed to resolve disputes at Industry Level?
Collective Bargaining has become an integral part of labour relations in South Africa. Industry Level Collective Bargaining occurs when organised labour in the form of Trade Unions negotiate with Employers or Employer Organisations such [...]
What factors do Arbitrators consider when determining whether a sanction is appropriate?
In an Arbitration relating to misconduct, a Presiding Commissioner must ultimately determine whether the sanction issued at the disciplinary hearing was fair and appropriate. The Guidelines on Misconduct Proceedings, published by the Commission for [...]
What are an Employers’ Rights and Limitations during a Strike Action?
Many scenarios may come to mind when one thinks of the word “strike”. However, few have considered how this action affects an Employer and their business. The Labour Relations Act (LRA) defines a strike [...]
Who is allowed to embark on a Strike when parties reach a deadlock at National Level?
The Labour Relations Act (LRA) defines a strike as “The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the [...]
Why am I being asked to settle my CCMA case?
As an Employer in South Africa, you may have received a call from an Official requesting your mandate to settle a dispute referred to the Commission for Conciliation, Mediation, and Arbitration (CCMA). This can [...]
We’ve Reached a Deadlock. Now What?
When parties cannot reach an amicable agreement or solution, a "deadlock" occurs. Before parties accept that a deadlock has been reached, they should consider the possible consequences. If parties cannot resolve the dispute through [...]
Should an Employer conduct a feasibility study prior to the commencement of negotiations?
Employment relationships rarely remain unchanged for prolonged periods. Employer’s requirements may occasionally vary, necessitating an employment contract amendment. Alternatively, Employees may feel the need to have their contract of employment amended for some reason. For [...]
Taking Proactive Steps when Receiving a Compliance Order
Whether an Employer operates within the scope of the Basic Conditions of Employment Act (BCEA) or is regulated by a Bargaining Council and its consequent Collective Agreement, compliance is a prerequisite that no Employer can [...]
Understanding National Level Bargaining in South Africa
National Level Bargaining in South Africa is a form of Collective Bargaining between large Trade Unions and Employer Organisations at a national level. This means that negotiations on employment conditions and terms of work, including [...]
Can you dismiss an Employee for failing a polygraph test?
Polygraph tests are often used by Employers when contemplating disciplinary action. However, the age-old questions must be asked, “Can an Employer dismiss an Employee solely for failing a polygraph test? Under what circumstances can it [...]
The role of Collective Bargaining in South Africa
Historically, there has always been unequal bargaining power between Employers and Employees. Employers are seen as having greater authority in the workplace, and the rights as conferred in the Labour Relations Act (LRA) are necessary [...]
Refusal to work overtime does not amount to insubordination
At the core of any Employer-Employee relationship emanates a common law duty of an Employee to render services to an Employer; however, it happens every so often that the Employer will require the Employee to [...]
Plant-Level Negotiations
What process should be followed when it comes to Plant-Level Negotiations? Plant-level negotiations can best be described as formal discussions between Employers and Employees who have different aims or intentions, particularly in the workplace, during [...]
Why consistency is key in dealing with workplace misconduct
A term often heard in the context of applying discipline in the workplace is the word "consistency" or its opposite, "inconsistency." The term “consistency” should be seen as "treating like with like" or "measuring all [...]
The importance of witness testimony at Arbitration proceedings
The evidentiary stage of an Arbitration hearing is a defining part of the process. What types of evidence may be relied upon, and what is the Employers’ burden of proof, the value of witness testimony, [...]