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There are still employers who try to avoid proper probation by using fixed term contracts. And coming up with clever legal arguments to try and circumvent statutory provisions. The Labour Court would have none of it.   

Introduction

We frequently get enquiries from employees who had been appointed ‘on probation’ for a few months, and then find themselves still working for the employer some two months after the probationary deadline, without any formal confirmation of their employment status, and lacking a ‘permanent’ contract.

In the recent case of National Union of Public Service and Allied Workers (NUPSAW) V Mfingwana and Others (C251/17) [2020] ZALCCT 4 (20 February 2020), the employer who found itself in a situation like this and came up with some creative ideas to try and circumvent the law, was in fact a Trade Union! The Labour Court made some interesting and noteworthy observations about their approach.

Facts

The Union employed Mr...

I received the following question via email this week:

"I need advice as I'm working for the company performing the same job with other employees but I'm not getting the same salary as theirs. Is it legal? What must I do in a situation like this?"

This is an often-asked question and based on a number of misconceptions. There is no 'short' answer, but I'll highlight the most important points.

'Equal pay for equal work' does NOT literally mean that if an employee does the same job as a fellow employee, they must be paid the same amount – as per the question above.

Employers are not required to pay all their comparable employees the same remuneration. The Employment Equity Act prohibits:

• unfair
• discrimination
• based on a difference in terms and conditions of employment
• between employees of the same employer
• performing the same or substantially the same work or work of equal value
• that is directly or indirectly based on any one or more of the grounds listed in section 6(1...

[UPDATE: In terms of GGR 42925 of 23 December 2019, all categories of parental leave are in operation from 1 January 2020, by way of an amendment to section 25 of the BCEA.]

These new categories of leave have been introduced during 2019, to make provision for longer paternity leave, but also specifically for parents in non-traditional relationships; or who may be adopting or have surrogacy arrangement.

All of this leave is unpaid (just like maternity leave), unless the employer has a policy to provide for (part-) payment during these periods of leave, or it is governed by a Collective Agreement. The parents can however claim UIF benefits, subject to certain conditions.

Where an employee is one of two parents who both qualify for adoption leave or commissioning surrogacy leave, not both of them will be able to apply for or claim UIF benefits for that type of leave. The parent who does not take the adoption- or surrogacy leave, will be eligible for parental...

The end of the year is upon us and many organisations have already arrangements for their year-end functions. Whether these functions are on- or off premises, alcoholic refreshments are usually available and this is a potential headache for many employers. In more than one way.

Most employers have an alcohol policy in place, often stipulating a “zero tolerance” approach to alcohol consumption in relation to their work or workplace. This policy is however usually relaxed for the purposes of social work functions – but employees need to understand that this does not mean that all the rules are suspended for the duration of the function.

Intoxicated employees can do a lot of potential damage to the employer’s reputation or to internal work relationships. There can be potential contraventions of health and safety obligations; allegations of harassment (sexual or otherwise); and also the danger of employees driving under the influence of alcohol or when...

 Why do organisations still conduct formal disciplinary hearings? It is not a statutory requirement, yet it is still generally regarded as a necessity by employers and employees alike. Well, it depends on whom you ask....

Introduction

An article written by esteemed colleague Johann Scheepers ("The Deformalisation of Disciplinary Proceedings - Demise Of The Criminal Justice Model”) recently came up on LinkedIn again and provides an informative analysis of the historical development of disciplinary procedures in South African Labour Law. (I will be referring to extracts from this article as a basis for my discussion below, with thanks.)

Whilst formal disciplinary hearings had been insisted upon by the old Industrial Court in order to demonstrate procedural fairness under the 1956 Labour Relations Act, it is fairly clear at this point that the current Labour Relations Act (“LRA”) does not require such stringent procedures. Many legal voices, including the...

Employers often experience frustration and a sense of helplessness if the work does not get done as expected, because one or more employees simply fail to do their part. They take chances, or are absent often, or have excuses for everything. 

Dealing with poor work performance is something most managers try to avoid. There is bound to be conflict, and they don't know where to start or simply don't have the time. Some managers just decide to live with the situation, whilst others try to find shortcuts around it.  The type of questions I am often asked, will probably sound all too familiar........

An employer is entitled to expect its employees to perform their duties at a reasonable standard and if this does not happen, has the right (and duty) to take definitive action. If you are aware of a problem in your department or business and don't do something about it sooner rather than later, you will end up having to do a lot of damage control later...

How much must you disclose to (or hide from) a prospective employer about your reasons for leaving your previous job? The Labour Court weighs in.

The nature and extent of the obligation that rests on an applicant for employment to disclose the circumstances surrounding a termination of employment with a previous employer were examined by the Labour Court in the recent case of Intercape Ferreira Mainliner (Pty) Ltd v Mcwade and Others (JR158/17) [2019] ZALCJHB 274 (18 September 2019).

Background

The employee was employed by Intercape in May 2015 with a view to be groomed for the position of CEO. However, on June 2016 he was dismissed after a disciplinary hearing on allegations that included his failure to disclose to Intercape, prior to his appointment, the circumstances surrounding the termination of his employment with Cargo Carriers Zimbabwe.

The circumstances that he had failed to disclose, were as follows:

• During August to October 2014, Cargo Carriers had made allegations...

The Labour Court addresses the employer's right to take disciplinary action for an employee's off-duty misconduct, posting a racial slur on Facebook while on leave. The Court also clarifies the nature of misconduct charges and the parity principle. Considerations such as long service and a clean disciplinary record may be outweighed by the aggravating factors.

EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019)

Background

The facts in EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019) were that the employee, while on annual leave during December 2015, published the following post onto her Facebook account:

"Watching Carte Blanch and listening to these fucking stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president... President my fucking ass!! #zumamustfall This makes me crazy ass mad." (sic)

Edcon received a letter of complaint from a member of the public,...

Younger generations are resisting traditional 'top-down' management structures. Finding ways to leverage the new strengths they bring to the workplace in your decision-making and people management, will let you stand out as a leader in the 4IR world.

As a lawyer and Employment Relations specialist, I am used to conflict. From litigation, to grievances, to hearings, to negotiations - there is a whole spectrum of different scenarios and approaches to contend with. I don't mind - dealing with and resolving conflict is a skill that is honed over time and the experience makes me better at my job.

What I was not expecting, was to be called upon to use this skill to assist clients on a management / leadership / human resources level to mediate interpersonal conflict situations. Not once, but numerous times over the last couple of years. It is not as if I have a psychology background or any formal training in the 'science' of conflict resolution. I read people (an essential skill in...

Labour law is a dynamic field and it is not just lawyers who have to keep up - but every HR/ER practitioner as well as managers. Fortunately, technology makes it easy to have access to new developments - and even more helpful are the regular articles written and published online by various experts in the field.

I have started a compilation of some of the best articles that are published about Employment Law in South Africa. This smart list is added to regularly and will automatically update here. A good reason to visit often!

Judith Griessel

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