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 relationship has been tarnished due to the employee’s alleged criminal behaviour. Unfortunately, this is not the case. This then begs [...]
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 the employee for the notice period not worked. This article explores whether the employer is permitted to deduct the value [...]
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: What is the situation with representation if the employee is the union representative in the workplace or, more commonly known, [...]
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 “zero tolerance approach to alcohol use”. In practice, intoxication is interpreted to mean “being under the influence of alcohol to [...]
Movie Nights and Legal Rights | Kgolo Mofokeng
If you were to peek into Kgolo Mofokeng’s home on a cosy evening, you might find her snuggled on the couch with her son, sharing a bowl of popcorn and watching cartoons. For Kgolo, these movie nights are more than just a way to unwind—they are a cherished ritual that harks back to her own [...]
Raising the Bar: Suspected False Medical Certificates
A medical practitioner's medical certificate must fulfil specific requirements to be deemed a lawful medical certificate. The certificate should state that the employee is unable to perform their work duties due to sickness or injury. The medical certificate is required to be signed by a medical practitioner or any other person who is certified to [...]
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, without a Policy or Bargaining Council regulating a particular industry, an employee has no automatic right to a bonus. The [...]
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 reasonableness of the instruction. Although the Basic Conditions of Employment Act 75 of 1997 (BCEA) regulates the payment for overtime [...]
To Bump or Not to Bump
Due to our prevalent economic challenges, the topic of retrenchment has become a regular discussion topic in South Africa. It is more significant for employers to thoroughly understand the retrenchment process and the options available for consideration when challenged with a decision to retrench as their last resort. During retrenchment consultations, the generally accepted fair [...]
Aletta Eksteen | Harmony!
Aletta Eksteen, an inspiring example of harmony and dedication, seamlessly blends her personal and professional life into a symphony of success. Born and raised in the charming town of Wellington, Aletta's upbringing was characterised by the warmth of a close-knit family and the ever-present melody of music. This unique environment cultivated a spirit of creativity, [...]
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 terms of a contract of employment. Employers may also be uncertain about the implications of a resignation letter with the [...]
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 deductions by an employer and the jurisdiction of the CCMA to hear such disputes. Until recently, the CCMA dealt with [...]
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 (29 April 2024). This case presents important lessons for employers regarding the fair treatment of employees during disciplinary processes and [...]
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 leave can be taken when an employee's child is born, when the employee's child is sick, or in the event [...]
Legal Expert by Day, Crime Documentary Enthusiast by Night | Joleze Roux
Growing up in the charming city of Bloemfontein, often referred to as "the city of roses," Joleze Roux’s life was infused with the values of respect, self-dignity, and authenticity, instilled by her loving parents. Joleze’s early years in Bloemfontein, a place she fondly calls her "klein dorpie," were filled with invaluable life lessons, cherished memories, [...]
Prescription: A Shield for Employers Against Extinguished Claims for Severance Pay
The Prescription Act 68 of 1969 safeguards employers against the indefinite pursuit of severance pay claims. This legislation sets a definitive time limit within which claims must be initiated, thus providing employers with certainty and protection from protracted liabilities. In terms of the Basic Conditions of Employment Act (BCEA), specifically Section 41(1), a retrenched employee [...]
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 Artificial Intelligence ‘AI’ and automation have always reared themselves in the workplace, subtly and in mundane tasks. Automation and AI [...]
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 industries, particularly where bargaining council agreements have been extended to non-parties, registration with the relevant council is not just a [...]
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 have subsequently been amended and regulated by adopting legislation that sought to remedy the inadequacies of the Common Law, such [...]
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 entitlements surrounding annual leave. This article will briefly discuss the provisions, implications, and benefits it holds for both employers 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. At first glance, this vetting process appears unproblematic. Employers should legitimately be entitled to request this information to ensure they [...]
Tea and Tenacity | Sharice Naicker
Growing up in a close-knit neighbourhood where encouragement was a constant, Sharice was always propelled towards her goals, with her family being her steadfast supporters. She recalls, "Most people consider themselves lucky to have one person backing them. However, I consider myself the luckiest person, as I have my entire family backing me." Sharice's early [...]
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 commitment to equality is evident in legislation such as Section 9 of the Constitution of the Republic of South Africa [...]
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 referred to as “labour brokers”; however, the correct term is “Temporary Employment Service” (TES). Section 198 of the Labour Relations Act [...]
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] JOL 57981 (LC). The Court had to decide whether the dismissal of the AMCU members who refused to work overtime [...]