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 or expresses that the future or continued working conditions are intolerable, it would be contradictory for that employee to desire [...]
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 a productive and cohesive workforce. Irrespective of the unique challenges facing the South African business landscape, some of the critical [...]
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 was bolstered by the recent Labour Court ruling in favour of Simunye Workers Forum (SWF), which challenged the Registrar's decision [...]
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 observe section 21 of the Labour Relations Act. However, when it comes to collective bargaining on an industry level, it [...]
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 really homogenising. While these organisational rights and consequent relationships between the parties may come about born out of the inherent [...]
Was this the War or just the First Battle?
"I have cherished the idea of a democratic and free society in which all persons live together in harmony and with equal opportunities" – Nelson Mandela. Could this be the turning point that guides our society and our nation towards the ideal espoused by the great Madiba himself? In the face of proposed amendments [...]
High Court declares Zimbabwe Exemption Permit termination unlawful
The ongoing saga pertaining to the Zimbabwean Exemption Permit (ZEP) and the validity thereof finally came to a conclusion on Wednesday 28 June 2023. Following a recent announcement by the Department of Home Affairs (DHA) in June that the ZEP would be valid for a further six-month period ending in December 2023, the High [...]
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, under the auspices of the Commission for Conciliation, Mediation, and Arbitration (CCMA), the Essential Services Committee was established to decide [...]
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 not be infringed on lightly. In other words, employers should not be told whom they may or may not promote. [...]
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 that no other reasonable decision-maker could have reached. This proposition has been articulated so often that it is now trite. [...]
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 a state or organisation is governed.” It is also a well-established principle in South African Labour law that a [...]
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: A rights dispute and an interest dispute. A rights dispute arises when a person’s entitlement to something in terms of [...]
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 Relations Act (LRA), refer to a Collective Agreement between a majority Trade Union and an Employer, which dictates that Employees [...]
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 has the right to determine its own administration. Section 1 of the Labour Relations Act, 66 of 1995 (LRA), specifies: [...]
Fiercely Gentle | Carlene van der Lith
You wouldn't expect a fiercely protective and passionate labour lawyer to have a soft spot for a good thriller movie, a fascination with Grey's Anatomy, and an undying love for face cream. But Carlene van der Lith, a Dispute Resolution Official at the Consolidated Employers' Organisation (CEO), is no ordinary attorney. Born and bred in [...]
South Africa’s Employment Equity Targets: A Necessary Struggle or Misguided Interference?
The year 2023 stands as a testament to the trials and tribulations private business owners have endured. Besieged by the dual nightmares of incessant load-shedding and a less-than-stellar economy, further aggravated by a contentious National Minimum Wage adjustment, the resilience of South African Small, Medium, and Micro Enterprises (SMMEs) is being sorely tested. Stirring [...]
Why does CEO Request Mandates from their Members for Collective Bargaining Purposes?
Collective Bargaining is a crucial aspect of Labour Law in South Africa. It involves negotiations between Employers and Employees or their respective representative bodies, with the aim of reaching an agreement on the terms and conditions of employment. Employers are often represented in these negotiations by Employers Organisations, such as CEO. One question that [...]
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 and potential legal disputes. In this article, we will discuss the process that Employers should follow when dealing with disputes [...]
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 as Consolidated Employers Organisation (CEO) within a specific industry or sector. Many industries have established Bargaining Councils as a result [...]
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 Conciliation, Mediation and Arbitration (CCMA), state the following: “The test is whether the Employer could fairly have imposed the sanction [...]
What does an Employers’ Organisation do to help businesses like yours?
Usually, in this article segment, Consolidated Employers Organisation (CEO) would post an article on a pressing or current issue in the employment law arena or some recent development in case law or the like. While the updates or legal guidance provided and expressed in these pieces are invaluable to our Members, insight should be [...]
Slaying it! | Tenielle Patrick
Tenielle Patrick's life could easily be the plot of an exciting TV series - a dedicated lawyer passionately advocating for CEO members by day, and an ardent fan of end-of-the-world dramas with vampires and zombies by night. Raised in the sun-soaked city of Durban, Tenielle's story is as inspiring as it is delightful. In a [...]
Amendments to the Postponement Application Process at the CCMA
It does happen that Employers find themselves being requested to attend the Commission for Conciliation, Mediation and Arbitration (CCMA) for a case but are unable to do so. This could be for many reasons, and as a result, Employers can request that their case be postponed to a more suitable date and time. Although [...]
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 as “the partial or complete concreted refusal to work, or the retardation or obstruction of work, by persons who are [...]
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 same Employer or by different Employers, for the purpose of remedying a grievance or resolving a dispute in respect of [...]