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Regulating labour relations in industry
While there is enormous pressure on South African businesses to transform, employers should be aware that BEE compliance can never be a justification for dismissal of non-black staff under the Labour Relations Act
In terms of the Labour Relations Act, 1995, a collective agreement is a written agreement concerning the terms and conditions of employment or any other matters of mutual interest that are concluded by one or more registered trade unions on the one hand and one or more employers and/or one or more registered employers' organisations on the other.
Two recent court cases have confused the issue in respect of leave pay, specifically regarding accrued leave.
By law, you are required to display extracts from certain acts in a prominent position in your workplace for the benefit of your staff. Failure to do so could lead to severe penalties ranging from fines to a criminal record.
Resolving conflict between employers and employees
EMPLOYEES who are forced to resign because their employers have made the continuation of their employment relationship intolerable are faced with a cluster of problems.
From time to time, an act of misconduct is committed at work before witnesses, who choose to remain passive in not identifying the perpetrators. Case law clearly supports the contention that such circumstances justify disciplinary action, which could include dismissal.
South African law provides that it is unfair to dismiss an employee based on age unless he or she has reached the normal or agreed retirement age for a person employed in that capacity.
Employers could face heavy financial damages if
they fail to protect staff from sexual harassment at work and
fail to create an environment in which its employees' right to
dignity is preserved.
A brief description of the operation of the Labour Court
A statutory council is a body established under the Labour Relations Act, 1995, in an area or sector of industry where no bargaining councils exists.
Stopping work to back up a demand
The draft Codes of Good Practice on Broad-Based Black Economic Empowerment ("Codes") were published by the Department of Trade & Industry in December 2004 for comment. In this article Werksmans attorneys set out some of the principles and requirements of the Codes.
Section 197 of the Labour Relations Act (the Act) regulates the employment law consequences of a transfer of the whole or part of a business as a going concern.
The purpose of the Employment Equity Act (EEA) is to achieve equity in the workplace
Advocate M H Marcus discusses the need to apply a performance management process before considering dismissal for misconduct or incapacity
A trade union is an association of workers grouped together in one organisation to represent members in their dealings with employers.
The recent strikes at Pick 'n Pay and South African Airways illustrate the damage that they can cause
The Wage Act, 1957, established a Wage Board to investigate wages and working conditions in specific industries, trades and undertakings in specified areas.
If parties are planning retrenchments as a result of a merger it is likely that the merged entity may face a conditional approval and a delay in the merger clearance process. Many industries have powerful trade unions that must be consulted every step of the way. Taking this into account, together with the protections afforded to all employees by the labour laws, one has to wonder whether the role the competition authorities are playing is really necessary.
New minimum wages for domestic workers, applicable from 1/12/2005, have been published in Government Gazette no. 28223, of 11/11/2005.
Employers are often at a loss when an employee refuses to sign a contract of employment. Can the employee be disciplined or dismissed? What other measures are available to the employer?
The best managers are not those who dismiss as many employees as possible with a ‘golden handshake’, but those who achieve excellent performance within their team – and in doing so, ensure growth and shape the future of the company.
This article examines the law surrounding dismissal of staff
Effective leadership is about guiding your employees along the path to success using three proven management techniques.
Your employees are one of your most expensive overheads. However, the more you pay your employees, the more profit they will make your company.
The basic Conditions of Employment Act and Schedule 8 of the Labour Relations Act make it imperative for an employer to give a written copy of the working conditions to the employee. In practice, this means agreeing on written employment contracts.
Motivational problems in your company or team can seriously affect staff morale and performance. If this is not detected and addressed early, it becomes a negative spiral that feeds on itself.
Employers should give due consideration to the feasibility of a fixed-term contract in the context of their businesses and where it is appropriate to use a fixed-term contract, it should operate for a time period that is realistic.
Talita Laubscher of Bowman Gilfillan Attorneys published these case commentaries in De Rebus, the South African Attorney’s journal.
In a judgment handed down by the Johannesburg Labour Court on Tuesday, 24 October 2006, the court confirmed that the Employment Equity Act does not impose an obligation on an employer embarking on a retrenchment exercise to retrench its white, rather than its black, employees.
Much has been written in our law about sexual harassment in the workplace but there is scant authority on psychological harassment which embraces elements of hostility and persistence.
In what circumstances can an employee be required to work overtime and what must you pay him or her?
We can draft workplace policies for your employees such as maternity, smoking, etc
Our labour laws recognise the right of an employer to dismiss employees for a reason based on its operational requirements without distinguishing between a business struggling to survive and a profitable business wanting to increase its profits
When can you dismiss an employee for performing poorly at work
There is no statutory requirement in labour law to pay bonuses of any sort, and any such payments that are made are not regulated by labour legislation. This therefore is a contractual issue (or a company policy issue) rather than a labour law issue.
You are entitled to require a newly hired employee to serve a period of probation before confirmation of his or her appointment. But can you dismiss an employee at the end of his or her probationary period?
What are your legal remedies if your employee gives you only 24 hour's notice?
What Constitutes Constructive Dismissal?
What constitutes constructive dismissal.
A summary of the provisions of the most important sections of the Basic Conditions of Employment Act, 1997 to be kept by an employer
Summary of the Employment Equity Act, 55 of 1998, issued in terms of Section 25(1)
The short answer is that the employee does not have the right to resign
This articles distinguishes psychological harassment from an employer’s managerial rights.
Constructive dismissal occurs where an employee resigns because of his employer's behaviour.
Many employees are required to sign policies whereby they agree that their employers have the right to monitor their workplace electronic communications.
This article prepares you as a witness at a disciplinary hearing or the CCMA
With perhaps discouraging frequency, companies need to conduct investigations into allegations of employee misconduct.
A holiday at least once a year is generally regarded as good for productivity, is probably necessary to the employee’s health, and is a basic right that helps to prevent employees from being compelled to surrender themselves entirely to the demands of their employers
When should first aid be provided at the workplace?
Sexual harassment claims are common following end of year celebrations and businesses are increasingly being held liable for the actions of their employees if they cannot establish that they have taken reasonable steps to prevent harassment occurring irrespective of whether it occurs at the workplace or off site. Reasonable steps mean pro-active, preventative measures. Lack of awareness that the harassment was occurring is not in itself a defence.
With the holiday season upon us, an employer should create an atmosphere where employees can enjoy a well-deserved measure of 'holiday cheer', but it is equally important to take steps to ensure they arrive home safe and sound.
The objective of this code is to eliminate sexual harassment in the workplace.
This article discusses the three minimum requirements for a fair suspension
Section 187 of the LRA lists certain types of dismissals which are classified as “automatically unfair.” Regarding pregnancy, subsection (e) provides that “A dismissal is automatically unfair if the reason for the dismissal is the employee’s pregnancy, intended pregnancy, or any reason related to pregnancy.”
What can an employer do if it wants an employee to take early retirement?
If your company is facing a slowdown and it appears that retrenchments are inevitable there are steps that you need to follow before retrenching staff
The Labour relations Act defines "operational requirements" to mean "requirements based on the economic, technological, structural or similar needs of an employer"
If you are considering retrenchment this is a useful guideline to follow
This article describes what leave you are entitled to
Retrenchment is nothing but a dismissal for operational reasons, which can include a variety of reasons
As a general principle an employee can't retract his or her resignation without the employer's consent.
Every employee has the right not to be unfairly dismissed. The Labour Relations Act of 1995 recognises three grounds on which a termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business.
Parties do not have an absolute right to legal representation in all arbitration proceedings before the CCMA.
Useful guidelines concerning the terms of employment of domestic workers
The Labour court rules on whether an employer can overturn the sanction imposed by disciplinary inquiry
Samro case sheds some light on the obligation of employees when resigning
An employer has to consider carefully whether to end an employee’s contract
The correct reporting and recording procedures of work related injuries.
The Tobacco Products Control Act provides for the protection of non-smokers - it does not provide any benefit or protection for smokers.
Section 189(2) of the Labour Relations Act sets out what steps must be followed
A common dilemma, with which employers in all areas of industry are faced, is the question of when dishonesty by an employee is sufficient to justify dismissal.
There is an obligation on the employee to be at work and to actually work in order to be remunerated. If s/he works fewer hours or days contracted then s/he will receive a lesser salary if s/he has no annual leave due.
Unless you are really employing someone for a limited period only don’t think you can get around our tough labour laws with fixed-term contracts.
The labour law can assist you if you are being harassed at work
Subjecting employees to a lie-detector test is no substitute for a disciplinary hearing, the Labour Court has ruled
PUBLIC employers who put troublesome staff on indefinite paid 'special leave' will have to mend their ways
Is theft a dismissible offence? Most people think that theft in the workplace – even of an item of nominal value – entitles an employer to dismiss an employee without an alternative, such as a final written warning.
This article discusses what constitutes constructive dismissal
A grievance is any feeling of dissatisfaction or perceived unfair treatment, which employees experience in relation to their work and employment situation and which constitutes a grievance of right.
This a sample of a Grievance Policy and Procedure. Consult your attorney or labour specialist to design a document that better suits your company's needs
Most employment disputes in South Africa are referred to the CCMA for resolution. The first stage of resolutions is the process of conciliation. If the matter remains unresolved, the dispute may either be referred for what is called a CON/ARB or Arbitration or in certain cases to the Labour Court. But, what are these processes and how should you prepare and conduct yourself in the proceedings.
Absenteeism can be a nightmare for employers
Eventually, everyone needs to stop working. Some people prefer to retire at an early age while others choose to work for as long as possible. Whatever your preference, you need to know what your rights and options are.
The need for employers to be able to trust their employees is crucial. For example, employers need to know that their employees and prospective employees are honest as regards the job qualifications they put forward, the work that they do and the clients that they serve.
Two Labour Court judgments have set new benchmarks regarding unfair discrimination and the protection of the rights of transgender employees
Contrary to popular belief a probation clause is not a licence to fire the employee at will
In the case of Gordon Timothy v Nampak Corrugated Container the Labour Appeal Court (LAC) sent out a strong warning to employees to admit guilt and show remorse instead of dishonestly denying any wrongdoing
Rule 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa provides a yardstick as to what medical certificates should stipulate.
Employees should be careful in their use of technology to communicate with their bosses
Can a person can resign from a job by email where the employment contract requires resignations to be in writing.
From 1 July 2011, employees earning more than the new threshold of R 172,000.00 per year will not automatically benefit from certain sections of the BCEA.
Employees may find themselves required to appear in a disciplinary hearing for alleged misconduct. An employee may be suspended on full pay pending a hearing especially when the employee’s presence at the workplace may jeopardize any investigation.
This is a synopsis of the procedure that a chairperson of a disciplinary hearing follows
Our specialist labour law service offering
When can you dismiss someone who can no longer work because of incapacity caused by ill health or injury?
SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity
An employee failed to state his HIV status and was dismissed. Was this fair?
What legal posters must you display?
Can an employee be dismissed if he refuses to take a polygraph test?
What, exactly, is sexual harassment?
When is a polygraph test admissible?
Section 14 of our Constitution provides that everyone has the right to privacy