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Labour Law for Non-Lawyers. Introduction. Simplified court structure Constitutional Court Labour Appeal Court Labour Court CCMA / Bargaining Council. Introduction. Unfair Dismissal Structure Depends on the type of dismissal: CCMA or Bargaining Council for conciliation;

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Labour Law for Non-Lawyers


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Introduction

  • Simplified court structure

    • Constitutional Court

    • Labour Appeal Court

    • Labour Court

    • CCMA / Bargaining Council


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Introduction

  • Unfair Dismissal Structure

  • Depends on the type of dismissal:

    • CCMA or Bargaining Council for conciliation;

    • then to CCMA or Bargaining Council for arbitration;

    • except, in certain circumstances, go from conciliation at the CCMA or Bargaining Council to the Labour Court for adjudication


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The Constitution

  • General characteristics of constitutionality:

    • constitutional supremacy;

    • entrenched Bill of Rights;

    • extensive powers of interpretation and enforcement granted to the courts;

    • human rights friendly approach


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The Constitution

  • The Bill of Rights

    • contains several relevant provisions including:

      • protection against discrimination;

      • protection against forced labour and servitude;

      • right to pursue an occupation;

      • right to freedom of association;

      • protection of children against exploitative labour practices.


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The Constitution

  • Section 23 of the Constitution:

    • everyone has the right to fair labour practices;

    • every worker has the right to form and join a trade union, participate in union activities and strike;

    • every trade union, employer’s organisation and employer has the right to engage in collective bargaining


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The Constitution

  • The Impact of the Constitution on Labour Law

    • constitutional labour rights has a substantial impact on the development of labour law

    • some are of the view that it is inappropriate to develop labour law through the Constitution

    • the Constitutional Court has disagreed with this view


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The Constitution

  • The Impact of the Bill of Rights

    • parties who may not be able to rely on the LRA may approach the Constitutional Court directly


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The Basic Conditions of Employment Act

  • Overview

    • governs the minimum standards of employment

    • covers all employees except SASS, NIA and unpaid volunteers working for charitable organisations

    • purpose is to advance economic development and social justice

    • give effect to and regulate right to fair labour practices

    • anything done in terms of the BCEA takes precedence over any agreement


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The Basic Conditions of Employment Act

  • Regulation of Working Time

    • Exclusions from this provision:

      • senior managerial employees;

      • sales reps who regulate their own hours;

      • employees who work less than 24 hours per month;

      • employees who earn in excess of R115 572.00;


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The Basic Conditions of Employment Act

  • Regulation of Working Time contd

    • An employer must regulate the working time of employees:

      • in accordance with health and safety provisions;

      • with due regard to code of good practice;

      • with due regard to their family responsibilities

    • for more detail, refer to page 7 of handbook


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The Basic Conditions of Employment Act

  • Ordinary Hours of Work

    • cannot work more than 45 hours per week

    • or 9 hours in a day if the employee works 5 days a week

    • or 8 hours if the employee works more than 5 days in a week

    • extension of ordinary hours up to 15 minutes per day

    • but not more than 60 minutes per week

    • for more detail, refer to page 8 of the handbook


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The Basic Conditions of Employment Act

  • Overtime

    • does not apply to employees whose earnings exceed R115 572.00

    • employee may only work overtime where there is an agreement in place

    • agreement cannot provide for more than 12 consecutive hours per day

    • not more than 10 hours per week


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The Basic Conditions of Employment Act

  • Overtime contd

    • payment is one and half times the employee’s wage

    • paid time off to be granted within 1 month of entitlement

    • for more detail, refer to page 8 of the handbook


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The Basic Conditions of Employment Act

  • Meal Intervals

    • no application to those earning above R115 572.00

    • employees who work continuously for more than 5 hours entitled to meal interval of 1 continuous hour

    • during meal interval, only required to perform those duties that can’t be left unattended

    • employee who works during meal interval entitled to be remunerated

    • can agree in writing to reduce meal interval to 30 minutes

    • dispense with meal interval if less than 6 hours per day


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The Basic Conditions of Employment Act

  • Daily and weekly rest period

    • daily rest period of at least 12 consecutive hours between conclusion and commencement

    • can be reduced to 10 hours if the employee works on premises and gets 3 hour meal interval

    • weekly rest period of at least 36 consecutive hours including Sunday, unless otherwise agreed

    • can agree to reducing weekly rest period, provided rest period in the following week is extended accordingly

    • can agree on 60 consecutive hours every 2 weeks


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The Basic Conditions of Employment Act

  • Pay for work on Sundays

    • entitled to double the wage if don’t normally work

    • if normally work, then entitled to one and a half times

    • paid time off to be granted within 1 month

    • for more detail, see page 9 of the handbook


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The Basic Conditions of Employment Act

  • Night Work

    • no application if earning more than R115 572.00

    • between 18h00 and 06h00

    • must be agreement between the parties

    • compensation of employee by payment of an allowance – shift allowance / reduction of working hours

    • transportation must be available between residence and workplace


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The Basic Conditions of Employment Act

  • Night Work contd

    • entitled to request medical examination in certain circumstances

    • employers to inform employees of health and safety hazards and of entitlement to medical exam

    • confidentiality of results of medical exam

    • employer to transfer employee to day work if employee’s health is suffering because of night work

    • for more detail, refer to page 9 and 10 of the handbook


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The Basic Conditions of Employment Act

  • Public Holidays

    • no application if earning more than R115 572.00

    • employee not required to work unless agreed

    • if public holiday falls from Monday to Friday, pay employee ordinary wage

    • if employee works, employer to pay double

    • for more detail, refer to page 10 of the handbook


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The Basic Conditions of Employment Act

  • Leave

    • not applicable to those who work less than 24 hours per month

    • provisions don’t apply to leave granted in excess of minimum

    • applies to all regardless of remuneration

    • different types of leave

    • employer always required to grant unpaid leave (must be reasonable)


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The Basic Conditions of Employment Act

  • Annual Leave

    • leave cycle is 12 months immediately following commencement of employment or completion of previous cycle

    • employee to be granted at least:

      • 21 consecutive days;

      • 1 day for every 17 days worked;

      • 1 hour for every 17 hours worked.

    • example of where days / hours apply where employee has not accumulated leave because has not worked there long enough / in the case of a part time domestic worker


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The Basic Conditions of Employment Act

  • Annual Leave contd

    • annual leave to be granted not later than 6 months after the end of the annual leave cycle

    • not required or permitted to take annual leave during any period of notice

    • employer to grant additional day of leave if public holiday falls on day employee would ordinarily work (if domestic worker works only on Wednesdays and public holidays falls on that day, employer must pay)

    • not required or permitted to work during annual leave period (if employee works, which can often happen, employer to give leave back)


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The Basic Conditions of Employment Act

  • Annual leave contd

    • employer may not pay employee instead of granting paid leave except on termination of employment

    • all employment contracts should contain “non-accumulation” clause

    • Important Case Law to note:

      • Jardine v Tongaat-Hulett Sugar (accumulation of leave)

      • Jooste v Kohler Packaging (accumulation of leave)


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The Basic Conditions of Employment Law

  • Sick Leave

    • sick leave cycle is the period of 36 months’ employment immediately following commencement of employment or completion of the previous sick leave cycle

    • employee entitled to the amount of days he would normally work during a period of 6 weeks

    • but, during the first 6 months, employee entitled to 1 day for every 26 days worked

    • if hasn’t yet accumulated leave, reasonable employer would allow unpaid leave


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The Basic Conditions of Employment Act

  • Sick Leave contd

    • employer required to pay the wage the employee would ordinarily have received

    • not required to pay an employee if away from work for more than 2 consecutive days or on more than 2 occasions during an 8 week period AND the employee doesn’t produce a medical certificate

    • medical certificate to state that employee was unable to work for the duration of the absence due to illness or injury


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The Basic Conditions of Employment Act

  • Sick Leave contd

    • medical certificate to be issued and signed by a medical practitioner or person certified to diagnose patients and registered with a professional council

    • Traditional Health Practitioner’s Bill:

      • employers must accept certificates from traditional healers provided they are registered with the Interim Council for Health Practitioners

    • where not practical to obtain medical certificate, employer can’t withhold payment unless it assists employee in obtaining certificate


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The Basic Conditions of Employment Act

  • Maternity Leave

    • entitled to at least 4 consecutive months

    • commencement of leave 4 weeks before expected date of birth unless otherwise agreed

    • cannot work for 6 weeks after birth unless certified fit to do so

    • entitled to 6 weeks if miscarriage during 3rd trimester or stillborn child

    • employee to notify employer in writing of date when she intends commencing leave and date of return


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The Basic Conditions of Employment Act

  • Maternity leave contd

    • employer not required to pay employee for maternity leave unless policy exists;

    • policy may provide for payment of 60% of normal salary

    • employee entitled to claim remaining 40% from the Unemployment Insurance Fund

    • thus, total cannot amount to more than 100% of normal salary


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The Basic Conditions of Employment Act

  • Protection of employees before and after child birth

    • pregnant employee or employee nursing her child cannot be required or permitted to perform work that is hazardous to health

    • if required to perform night work or work which poses danger to health of child, employer must offer suitable alternative employment

    • code of good practice


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The Basic Conditions of Employment Act

  • Family responsibility leave

    • only applies to those employed for more than 4 months who work more than 4 days per week

    • entitled to 3 days’ paid leave in the event that:

      • employee’s child is born;

      • employee’s child is sick;

      • employee’s spouse, life partner, parent, grandparent, child, grandchild or sibling dies;

    • if employer requires proof of event, employee to provide it before being paid

    • does not accrue


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The Basic Conditions of Employment Act

  • Particulars of employment and remuneration

    • applies to those who work more than 24 hours per month

    • employer to provide employee with certain information (page 14 of handbook) in writing

    • if information changes, employee to be provided with copy of revised document

    • employers not permitted unilaterally to change terms and conditions – must consult

    • statement of employees rights in prescribed form to be displayed at workplace where it can be read by all


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The Basic Conditions of Employment Act

  • Particulars of employment and remuneration contd

    • written particulars to be kept by employer for 3 years post termination

    • payment of remuneration by way of cheque, cash or direct deposit

    • employer obliged to give certain information when paying an employee

    • employer may not deduct from the employee’s remuneration unless agreed or where permitted by law, court order or arbitration award


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The Basic Conditions of Employment Act

  • Particulars of employment and remuneration contd

    • deduction for loss or damage suffered by employer if:

      • employee’s fault and during course of employment;

      • employer gives employee opportunity to show why deductions should not be made;

      • total amount of debt does not exceed actual amount of damage;

      • total deductions do not exceed ¼ of remuneration

    • debt to be specified by employer in separate agreement


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The Basic Conditions of Employment Act

  • Termination of employment

    • applies only to those who work more than 24 hours per month

    • contract may terminated on notice of not less than:

      • 1 week if employed for 6 months or less;

      • 2 weeks if employed for between 6 months and 1 year;

      • 4 weeks if employed for 1 year or more (collective agreement can reduce this to 2 weeks) or if a domestic or farm worker employed for more than 6 months.

    • notice to be given in writing, unless illiterate, then must be explained


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The Basic Conditions of Employment Act

  • Termination of employment contd

    • employer cannot give notice of termination during any period of leave

    • instead of giving notice, employer can pay employee the remuneration he would have received had he worked

    • upon termination, employer to pay for any annual leave accrued and not taken and for any paid time off not taken


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The Basic Conditions of Employment Act

  • Termination of employment contd

    • where dismissal is for operational requirements, employer to pay severance pay of at least 1 week for each completed year of service

    • if employee refuses to accept reasonable alternative offer, employer does not have to pay him severance


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The Basic Conditions of Employment Act

  • Termination of employment contd

    • employee entitled to certificate of service on termination stating:

      • employer’s full name and address;

      • date of commencement;

      • date of termination;

      • job title and description of work performed;

      • remuneration of employee on termination;

      • reason for termination, if requested


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The Basic Conditions of Employment Act

  • Important cases to note:

    • Purefresh Foods v Dayal

    • Freshmark v CCMA and others


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The Basic Conditions of Employment Act

  • General

    • person who is provided to a client by a TES is the employee of the TES

    • TES is a labour broker, eg.“Kelly” – provides employees to the client

    • so that client doesn’t have to deal with employees

    • if TES does not comply with the BCEA or any sectoral determination, the TES and the client are jointly and severally liable

    • important case to note:

      • LAD Brokers v Mandla


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The Labour Relations Act

  • Overview

    • primary objects of the LRA:

      • give effect to and regulate constitutional labour rights

      • give effect to obligations as a member of the ILO

      • provide framework within which trade unions, employer’s organisations and employers can bargain collectively

      • promote collective bargaining, employee participation in decision making and resolution of labour disputes


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The Labour Relations Act

  • Overview contd

    • applies to all employees except NIA, SASS and SANDF

    • contains various codes of good practice (not binding but should be taken into account):

      • code of good practice on dismissal;

      • code of good practice on dismissals for operational requirements;

      • code of good practice on sexual harassment;

      • code of good practice on picketing;

      • code of good practice on key aspects of HIV / AIDS in employment


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The Labour Relations Act

  • Employees v Independent Contractors

  • Overview

    • independent contractors are not employees

    • do not enjoy protection of labour legislation

    • also excluded from employee benefit schemes

    • employers may attempt to subvert labour legislation by construing an employment relationship as an independent contracting one

    • courts are aware of this and look at true nature of the relationship


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law

    • distinction both in common law and the statutes between the two (e.g. Income Tax Act)

    • common law – decided case law

    • variety of tests established to determine whether employee or independent contractor:

      • control test;

      • intuitive test;

      • dominant impression test – most common


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law contd

    • question is whether an individual has placed his productive capacity at employer’s disposal

    • courts will look at obligations contained in the written contract to determine this

    • employment relationship: effort and personal service

    • independent contractor: focus on a particular job to be done


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law contd

    • employee is defined as:

      • any person, excluding an independent contractor, who works for another person or the state and who receives or is entitled to receive any remuneration; and

      • any person who in any manner assists in carrying or conducting the business of the employer


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law contd

    • section 200A of the LRA contains presumptions as to who is an employee. The following indicates an employment relationship:

      • right of control over the manner in which the person carries out duties;

      • right of control over hours of work;

      • person forms part of the organisation;


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law contd

    • presumptions contd

      • person works average of 40 hours per month in last 3 months

      • economic dependence

      • provision of tools of trade; and

      • exclusive service


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law contd

    • form of contract does not affect presumptions

    • thus, onus resides on employer to prove that no employment relationship exists

    • presumptions do not apply to those who earn over R115 572.00 per annum

    • in those circumstances, onus rests on person to prove employment relationship exists


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • The law contd

    • further factors

      • person is under supervision;

      • a reporting line exists;

      • provision of office equipment;

      • duration of relationship;

      • compliance with the BCEA;

      • business no longer viable upon termination.


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • Relevant legal principles

    • distinction is important because:

      • not protected by labour law;

      • relationship therefore governed by contract;

      • thus content of agreement is determining factor;

      • termination of relationship governed by the contract;


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • Tax implications

    • PAYE to be deducted from remuneration paid or payable by an employer to an employee

    • remuneration excludes any amount payable for services rendered by person who carries on trade independently of person by whom amount is payable


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • Tax implications contd

    • trade not being carried out independently if subject to control or supervision or amounts payable for services include earnings payable at regular intervals

    • employer is responsible for determining whether payments are excluded from remuneration

    • if employer decides that payments do not fall within remuneration, then runs risk that SARS may take different view and hold employer liable for PAYE, with interest and penalties


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • Tax implications contd

    • previously could obtain guidance from SARS regarding status of person

    • shift in policy recently

    • no assistance from SARS


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The Labour Relations Act

  • Employees v Independent Contractors contd

  • Important cases to note:

    • Niselow v Liberty Life

    • SABC v McKenzie

    • Denel v Gerber


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The Labour Relations Act

  • Dismissals

  • Overview

    • basic principle – right not to be unfairly dismissed

    • require substantive and procedural fairness:

      • substantive fairness – only 3 grounds recognised:

        • misconduct;

        • operational requirements (i.e. retrenchments);

        • incapacity (poor work performance, illness/injury, possibly incompatibility)

      • i.e. employer entitled to dismiss on these grounds


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The Labour Relations Act

  • Dismissals contd

  • Overview contd

    • 3 grounds cover most types of dismissal

    • onus on employer to show fairness

    • Schedule 8 (code of good practice) sets out guidelines


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The Labour Relations Act

  • Dismissals cont

  • Overview contd

    • LRA recognises other forms of dismissal

    • Section 186 of the LRA provides that “dismissal” means:

      • failure to renew fixed term contract or renewal on less favourable terms where reasonable expectation exists;

      • refusal to allow employee to resume work after maternity leave;


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The Labour Relations Act

  • Dismissals contd

  • Overview contd

    • selective re-employment after dismissal of a group of employees for same/similar reasons

    • constructive dismissal – see below;

    • dismissal for reason relating to a transfer of a business or less favourable terms and conditions offered pursuant to a transfer


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The Labour Relations Act

  • Dismissals contd

  • Misconduct

    • may justify dismissal but not in every instance – sometimes only verbal/written warning will be justified

    • requirements of substantive and procedural fairness must be met


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

    • LRA enjoins employers to consider code of good practice - not binding but useful guide

    • item 7 of the code assists in determination of fairness:

      • did employee contravene rule or standard?

      • was employee aware or should he have reasonably been aware of the standard?

      • was rule / standard consistently applied?


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The Labour Relations Act

  • Dismissals

  • Misconduct contd

    • items 1 to 4 of the code:

      • dismiss only for sufficiently serious misconduct or repeated acts of misconduct

      • purpose of discipline is progressive not punitive

      • employees must conduct themselves satisfactorily

      • cannot simply give notice in terms of contract in cases of misconduct (i.e. statute trumps contract)


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

    • must deal with on a case by case basis

    • examples of serious misconduct – dishonesty, endangering safety, assault, gross insubordination

    • advisable to adopt disciplinary code and procedure


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

    • employer required to investigate

    • notify employee of charges in an understandable form

    • notify employee of rights, for example, representation

    • allow employee to state his case

    • allow employee reasonable opportunity to prepare

    • if dismissed, notify employee of right to approach CCMA/bargaining council


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

    • dishonesty –

      • common instance of misconduct

      • often a dismissible offence – trust relationship trust is vital

      • example – theft

        • taking possession

        • of goods

        • owned by another

        • unlawfully and

        • intentionally

      • theft is generally dismissible – even where negligible


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

    • there are many kinds of misconduct

    • issue of procedural compliance

      • need not be a ‘mini-trial’ but very common

      • no need to be as formal as criminal trial

      • onus on employer to prove on a balance of probabilities

      • principles of natural justice:

        • right to be heard

        • right to impartial chairperson


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

  • Important cases to note:

    • Consani Engineering v CCMA

    • Amalgamated Pharmaceuticals v Grobler

    • SAPU v Minister of Safety and Security


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The Labour Relations Act

  • Dismissals contd

  • Misconduct contd

    • Dispute resolution

      • CCMA/Bargaining Council for conciliation

      • CCMA/Bargaining Council for arbitration

      • can review in Labour Court

      • not automatically entitled to legal representation


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The Labour Relations Act

  • Dismissals contd

  • Incapacity

    • often a source of confusion

    • true incapacity is not a disciplinary offence

    • 3 types of incapacity:

      • inability to perform to required standards;

      • inability to perform due to illness/injury; and

      • incompatibility.


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • Poor work performance

      • no misconduct unless deliberate

      • item 9 of the code:

        • did the employee fail to meet the performance standard?

        • if yes, was employee aware or could he reasonably have been expected to be aware of the performance standard?

        • was employee given a fair opportunity to meet the standard?

        • is dismissal the appropriate sanction in the circumstances?


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • “no fault” dismissal, therefore requires a more sympathetic procedure to be followed by employer when performance managing an employee

    • code enjoins employers to –

      • inform employee timeously of deficiency;

      • give guidance and instruction;

      • provide reasonable opportunity to improve; and

      • consider alternatives to dismissal.


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • item 8(2) and (3) of the code deal specifically with ‘tenured employees’ in context of poor work performance:

      • employer must give appropriate training, evaluation, instruction and reasonable opportunity to improve before dismissing employee

    • but courts have said that employees undertake, by implication, to work to reasonable standards and their failure to do so entitles employer to terminate contract


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • proof of poor work performance best found in objective system of appraisal

    • existence of standards which are ascertainable, for example industry norms, workplace practices, warranties given by employee, or contract itself

    • reasonableness is not fixed as it depends upon position and seniority of employee

    • generally, poor work performance is evidenced over period of time but may be a single act/omission on employee’s part


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • the more senior the employee, the more strict the test (confirmed by courts)

    • senior employees capable of doing self-assessment but do not ignore the procedural requirements

    • employers should consider:

      • the employee’s position;

      • the standard of work linked to position;

      • the degree of seriousness of failure;

      • the length of service;

      • the possibility of extra training or guidance;

      • the possibility of transferring employee to another position


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • not exhaustive – case by case basis

    • procedure consists of investigation, meetings with employee, making employee aware of the problems, allowing employee to make representations etc.


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • Important case to note:

      • Ross Poultry Breeders v SOMYO


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • Probationary employees and poor work performance

      • the code provides for reasonable probation period

      • allows employer to assess the performance of new employee

      • item 8 of the code:

        • employer entitled to require employee to serve probation;


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • gives employer opportunity to evaluate;

    • not to be used to prevent employee becoming ‘permanent employee’;

    • period of probation to be reasonable;

    • if performance below standard, employer to discuss with employee;

    • if employee incompetent, investigate


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • employer can extend the probationary period or dismiss (subject to procedural requirements – representations. meetings etc.);

    • extension only for reason relating to probation;


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • require proper procedure before dismissing probationary employee

    • still require substantive and procedural fairness


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • Important cases to note:

      • Crawford v Grace Hotel

      • SATAWU v Spoornet

      • Yeni and SABC


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The Labour Relations Act

  • Dismissal contd

  • Incapacity contd

    • Illness: HIV/AIDS

      • increasingly relevant in context of labour relations

      • key instruments:

        • code of good practice;

        • provisions of the EEA;

        • provisions of LRA dealing with incapacity;

        • pronouncements of the Labour Court.


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • code provides for effective management of HIV/AIDS in workplace and consists of an integrated strategy

    • attempts to deal with problem on different fronts:

      • understanding and assessment of impact

      • measures to deal with and reduce the impact:

        • policies;

        • programmes;

        • counselling; and

        • employee assistance.


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • code confirms position in section 7 of EEA (testing)

    • employee may not be required to undergo HIV testing unless Labour Court determines that it is justified

    • employer must approach Labour Court for authorisation

    • voluntary testing at initiative of employee only

    • conditions of voluntary testing:

      • presence of health care worker

      • informed consent and counselling

      • strict confidentiality


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • may not dismiss on basis of employee’s HIV/AIDS status

    • constitutes unfair discrimination and automatically unfair

    • if HIV/AIDS causes inability to work can dismiss because dismissing for incapacity, not status

    • follow procedures in schedule 8

    • additional onus on employer to maintain confidentiality

    • right to dismiss is retained


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • items 10 and 11 in the code contain specific guidelines for incapacity due to illness:

      • similar to requirements in respect of pwp

      • distinction between temporary and permanent inability to work

      • if temporary, employer should investigate the extent of incapacity and length of time likely to be absent

      • possibility of accommodating employee

      • investigate all measures short of dismissal

      • if relatively short period of absence employer should not dismiss


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • factors in consideration of alternatives to dismissal -

      • nature of job

      • period of absence

      • seriousness of illness

      • possibility of securing temporary replacement

      • if disability is permanent, is it possible to adapt the work functions to accommodate disability?

    • procedural requirements include investigation, consultation, representations, assistance by fellow employee or trade union representative

    • not a disciplinary inquiry


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The Labour Relations Act

  • Dismissals contd

  • Incapacity contd

    • Important cases to note:

      • Irvin and Johnson v Trawler and Line Fishing Union

      • Hoffmann v SAA


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments

    • duty to consult arises when employer contemplates dismissing employee/s on the basis of its operational requirements

    • operational requirements defined as the economic, technological, structural or similar needs of employer

    • not a closed category


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • economic - financial management

    • technological – introduction of new technology

    • structural – redundancy resulting from restructuring

    • “no fault” dismissals

    • onerous procedural requirements

    • duty to consult with affected employee/s before final decision taken

    • strive for consensus where possible


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • consultation must commence as soon as it is clear that reduction in workforce is likely

    • employer enjoined to keep an open mind

    • consider all proposals put forward by employees

    • period of consultation depends upon circumstances, for example, urgency of operational requirements

    • but urgency cannot be induced by failure to consult timeously


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • duty of co-operation in respect of both parties

    • objective selection criteria:

      • length of service (LIFO or FIFO);

      • skills and qualifications;

      • even disciplinary record;

      • special skills – can retain these employees.


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • employees to be paid severance pay of at least 1 week per completed year of service

    • if employee refuses reasonable alternative employment then he may forfeit his right to be paid severance


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • retrenched employees to be given preference subject to:

      • employee expressing desire to be re-hired within a reasonable time; and

      • employer having right to specify that time


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • who must be consulted?

      • any person in terms of a collective agreement

      • if no collective requirement, workplace forum

      • if no workplace forum, any registered trade union/s whose members are likely to be affected

      • if no trade union/s, the employees likely to be affected or their nominated representatives


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • matters to be consulted on?

      • parties must attempt to reach consensus on:

        • appropriate measures to:

          • avoid

          • minimise number

          • change timing

          • mitigate adverse effects

          • method of selection

          • severance pay


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • section 189(3) notice (when procedure commences)

      • reasons

      • alternatives considered and reasons for rejecting

      • number to be affected and job categories (how many retrenchments in last 12 months)

      • proposed method

      • time when likely to take effect

      • proposed severance

      • any assistance

      • possibility of future re-employment


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • legislation does not prescribe time limits

    • no minimum number of consultations – depends on circumstances

    • good faith on the part of the employer


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • dispute resolution

      • retrenchment of 1 person:

        • CCMA/Bargaining Council for conciliation

        • employee can choose between arbitration in CCMA/Bargaining Council or can refer to Labour Court for adjudication

        • automatically entitled to legal representation


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The Labour Relations Act

  • Dismissals contd

  • Retrenchments contd

    • dispute resolution

      • retrenchment of more than 1 person

        • CCMA/Bargaining Council for conciliation

        • Labour Court for adjudication

        • automatically entitled to legal representation


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The Labour Relations Act

  • Automatically Unfair Dismissals

    • higher compensation than ordinary unfair dismissals

    • due to the fact that such dismissals have constitutional and policy implications


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The Labour Relations Act

  • Automatically Unfair Dismissals contd

    • employer acts contrary to section 5 of the LRA (freedom of association);

    • employee participated in or supported a protected strike;

    • employee refused to do normal work during a protected strike (unless work necessary to prevent danger to life, security, health)

    • dismissal to compel employee to accept a demand in respect of a matter of mutual interest


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The Labour Relations Act

  • Automatically Unfair Dismissals contd

    • employee exercised a right conferred by the LRA;

    • pregnancy or a reason related to pregnancy;

    • employer unfairly discriminated against an employee;

    • transfer or reason related to a transfer; or

    • is a contravention of the Protected Disclosures Act.


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The Labour Relations Act

  • Automatically Unfair Dismissals contd

    • compensation for automatically unfair dismissal up to 24 months’ remuneration (as opposed to 12)

    • employee required to establish existence of dismissal

    • then required to provide sufficient evidence to show that dismissal is automatically unfair

    • if employee succeeds, employer to establish on balance of probabilities that dismissal not for reason giving rise to automatically unfair dismissal


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The Labour Relations Act

  • Automatically Unfair Dismissals contd

  • Important cases to note:

    • Wardlaw v Supreme Mouldings

    • Colliers Properties v Christian


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The Labour Relations Act

  • Constructive dismissal

    • Section 186(1)(e):

      • employee terminates contract of employment

      • because employer made continued employment intolerable


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The Labour Relations Act

  • Constructive dismissals contd

    • remedies

      • reinstatement

      • compensation


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The Labour Relations Act

  • Constructive dismissals contd

    • Important Cases:

      • Jooste v Transnet Ltd t/a SA Airways

      • Ntsabo v Real Security CC


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The Labour Relations Act

  • Failure to renew a fixed term contract

    • normally, fixed term contract expires on certain date or upon happening of certain event

    • employer may not terminate fixed term contract prematurely, unless otherwise agreed

    • thus differs from an indefinite contract of employment


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The Labour Relations Act

  • Failure to renew a fixed term contract contd

    • employer should include explicit notice clause

    • if no notice clause and employer terminates prematurely, employee can claim outstanding remuneration due

    • often used by employers as a device to circumvent LRA unfair dismissal regime


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The Labour Relations Act

  • Failure to renew a fixed term contract contd

    • where employee has reasonable and legitimate expectation of renewal, employer may be required to renew on same or similar terms of original contract

    • employee not entitled to indefinite term of employment (i.e. restricted to renewal)


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The Labour Relations Act

  • Failure to renew fixed term contract contd

    • a continuous and uninterrupted relationship materialises where employee works for a number of years on a fixed term contract that is renewed at regular intervals

    • employee cannot rely on provision relating to failure to renew fixed term contract in those circumstances


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The Labour Relations Act

  • Failure to renew a fixed term contract contd

  • When does a legitimate expectation of renewal arise?

    • where the employer has made representations regarding renewal of the contract;

    • where the provisions of the contract state that renewal shall occur; or

    • where there is a past practice of renewal.

    • courts will also look at what purpose the fixed term contract serves


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The Labour Relations Act

  • Unfair Labour Practices

  • Overview

    • a ULP is an unfair act or omission involving:

      • unfair conduct by the employer relating to:

        • promotion;

        • demotion;

        • probation;

        • training;

        • provision of benefits;

      • unfair suspension;

      • failure or refusal to reinstate or re-employ;

      • an occupational detriment in contravention of PDA


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The Labour Relations Act

  • Unfair Labour Practices contd

    • ULP’s can only occur where there is an existing employment relationship

    • must fall within the definition of “employee”

    • must fall, at least partially, within the definition because of the word “involves”


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The Labour Relations Act

  • Unfair Labour Practices contd

    • to determine whether conduct amounts to a ULP, determine whether a right has been infringed / is about to be infringed

    • remedy for ULP should have as its purpose the correction of the unfair conduct

    • courts may order reinstatement, re-employment or compensation where ULP has occurred

    • most important question when determining whether ULP exists is fairness


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The Labour Relations Act

  • Unfair Labour Practices contd

  • Unfair conduct relating to provision of benefits

    • problem with definition of “benefits”

    • definition important from a collective bargaining perspective because if remuneration included then right to strike severely affected

    • haphazard and inconsistent approach of the courts

    • payment for accumulated leave and payment in respect of a motor vehicle allowance have been held to be a benefit

    • in contrast, only disputes about existing rights can be arbitrated on


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The Employment EquityAct

  • Overview

    • Preamble to the EEA:

      • as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market

      • those disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws


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The Employment EquityAct

  • Overview contd

    • The Employment Equity Act was therefore enacted to:

      • promote the constitutional right to equality;

      • eliminate unfair discrimination in employment;

      • ensure the implementation of employment equity to redress the effects of discrimination; and

      • achieve a diverse work force broadly representative of the South African people.


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The Employment EquityAct

  • Overview contd

    • purpose is to redress past discrimination by eliminating unfair discrimination in the workplace

    • applies to all employers

    • employer required to advance employees who were previously discriminated against by means of affirmative action

    • seeking equitable representation of employees in all job categories at all levels


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The Employment EquityAct

  • Prohibition of unfair discrimination

    • employers not permitted to discriminate unfairly against any employee or applicant

    • employer to take steps to promote equal opportunity by eliminating unfair discrimination

    • prohibition extends to employment policy and practice

    • free of unfair discrimination:

      • recruitment procedures;

      • advertising;

      • selection criteria;

      • remuneration;

      • training etc


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The Employment Equity Act

  • Prohibition of unfair discrimination contd

    • unfair discrimination defined as different treatment of employees on an arbitrary ground

    • both direct and indirect discrimination prohibited

    • “intention” of employer not relevant to enquiry

    • direct discrimination where discrimination is obvious

    • indirect discrimination not so obvious


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The Employment Equity Act

  • Prohibition of unfair discrimination contd

    • recruitment and interviews to be free of discrimination

    • cannot discriminate against applicants on basis of:

      • race;

      • gender;

      • pregnancy;

      • family responsibility;

      • sexual orientation;

      • age;

      • religion;

      • HIV status etc


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The Employment Equity Act

  • Prohibition of unfair discrimination contd

    • can lawfully differentiate on the basis of:

      • affirmative action; and/or

      • inherent requirements of the job


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The Employment EquityAct

  • Sexual harassment as a form of discrimination

    • harassment in the workplace is a form of unfair discrimination and is prohibited

    • employees entitled to claim damages in terms of the EEA

    • damages not limited

    • courts determine what is reasonable in the circumstances


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The Employment Equity Act

  • Sexual harassment as a form of discrimination contd

    • Code of Good Practice

    • Objective of Code is to eliminate sexyal harassment in the workplace

    • Covers sexual attention that is:

      • persisted in

      • clearly indicated as offensive

      • obviously unacceptable


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The Employment Equity Act

  • Sexual harassment as a form of discrimination contd

  • Sexual harassment includes:

    • physical contact;

    • verbal innuendoes;

    • suggestions / hints;

    • unwelcome gestures etc

    • different types of harassment on page 70 of the handbook


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The Employment Equity Act

  • Sexual harassment as a form of discrimination contd

    • management needs to actively prevent sexual harassment in the workplace by issuing policy statements and procedures

    • employees must be made aware that they can lodge a grievance

    • education programmes should be emphasised

    • dignity of individual emphasised


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The Employment Equity Act

  • Sexual harassment as a form of discrimination contd

    • options available to employer in resolving a complaint:

      • informal – a quiet discussion

      • formal investigation – need to ensure confidentiality – limit those involved


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The Employment EquityAct

  • Sexual harassment as a form of discrimination contd

    • Employers must implement a functional sexual harassment policy:

      • creates an awareness of sexual harassment that may result in its prevention;

      • while it may not eliminate the vicarious liability aspect, an effective sexual harassment policy will provide a strong defence against claims made by an employee;


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The Employment Equity Act

  • Applicants for employment

    • before the interview, employer should identify the requirements of the job and level of competency required

    • ask applicants questions based on those requirements ONLY

    • employer to give reasons to unsuccessful applicants if requested to do so

    • employer should not ask irrelevant questions that may be discriminatory


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The Employment Equity Act

  • The Employment Equity Plan

    • every “designated employer” must prepare an employment equity plan

    • do this by conducting an analysis of workforce

    • to achieve reasonable progress towards employment equity in the workforce

    • designated employer:

      • 50 or more employees; or

      • less than 50 but has annual turnover between R2 and R25 million;


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The Employment EquityAct

  • The Employment Equity Plan contd

    • The plan must state:

      • timetables for achievement of goals;

      • duration of plan;

      • procedures to monitor implementation;

      • persons responsible for enforcing


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The Employment EquityAct

  • The Report

    • the employer must submit a report to the Director-General

    • report to detail progress made in implementing plan

    • report to be submitted on first working day in October

    • the CEO must sign the report

    • if designated employer is a public company, a summary of the report must be included in the company's annual report


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The Employment Equity Act

  • Important cases to note:

    • Coetzer v Min of Safety and Security

    • Biggs v Rand Water

    • Grobler v Naspers / Media 24 v Grobler

    • South African Transport and Allied Workers Union v Old Mutual Life Assurance Company (SA) Limited


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The End

Any Questions?


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