Labour Law

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The Employment Equity Act (EEA) prohibits sexual harassment of employees by other employees and holds the employer liable in such cases even if the employer does not know that the sexual harassment is going on. The courts have upheld this provision.


The CCMA’s policy guidelines for misconduct dismissal arbitrations that became effective in January 2012 increases the obligation on commissioners to conduct themselves properly when arbitrating such matters. 


The employment of certain sex offenders is regulated under chapter 6 of the Criminal Law Amendment Act 32 of 2007 (CLAA) and prohibits certain employers from hiring or continuing to employ sex offenders. For the purposes of this law “employers” are defined as those that employ staff who, directly or indirectly, deal with or come into contact with children or mentally disabled persons (MDP) in the course of their work.


Should an employer fail to bring any witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because witness testimony normally forms the crucial core of the procedure at any hearing. 


An integral element of an employment relationship is the need for and the right of the employer and employee to trust each other. This is a two-way street and either party could forgo his/her right to continue the employment by destroying the trust relationship.


Pregnant employees are strongly protected under South African law. There are no fewer than six pieces of legislation that require employers to treat pregnant and post-pregnant employees with the greatest of care. One of these pieces of legislation is the Code Of Good Practice On The Protection Of Employees During Pregnancy And After The Birth Of A Child (The Code).


Many businesses have stopped operating, following the unrest in some parts of the country. Labour lawyer Osborne Molatudi has weighed in on how the unrest has affected the rights of employees. 


It is legally very dangerous for employers to discipline and fire employees  who commit offences due to illness or disability. For example, an employee who uses alcohol or narcotics and becomes addicted is legally classified as being ill and is protected by law.


Panic in workplaces over the spread of covid-19 may lead to breach of Basic Conditions of Employment Act and Occupational Health and Safety Act.


The Labour Relations Act of 1995 (LRA) makes it very easy for employees to challenge alleged unfair dismissals and other unfair practices at private or statutory dispute resolution forums. Such disputes may, by agreement, be dealt with via private (non-statutory) dispute resolution forums such as AMSA, AFSA, Tokiso and others. On the other hand the statutory dispute resolution forums established by the LRA include:


Due to the fact that some employers are unskilled in dealing both effectively and legally with poor performance or misconduct they look for other ways of getting rid of ‘troublesome employees. However, the law has made it clear that employers must use laid down corrective/disciplinary processes in such cases and are not allowed to misuse other methods such as retrenchments.


The legal procedures that an employer is required to follow in implementing dismissals for misconduct, retrenchments and poor work performance are all different. For instance, it is not normally acceptable to use the procedure laid down for retrenchments in order to deal with poor work performance. 


The purpose of workplace disciplinary hearings is to enable the chairperson of the hearing to hear, from both sides, evidence relating to the charges against the employee. Part of the hearing of evidence is the right of the opposing party to cross examine any evidence brought. At such hearings the parties present are normally:


It has become a practice by employers to insert automatic termination clauses into employment contracts for reasons including the following:


The employment relationship involves two parties - the employer and the employee - and accordingly there are three possible ways in which this relationship can end, or terminate. 


 Labour law provides scant protection for employers. That is the opinion of Ivan Israelstam. This week Ivan explains why he holds that opinion, and gives advice to employers on how he believes they should react, and protect their businesses going forward.


Working from home has become a normal part of business life, a part that is unlikely to come to a crashing halt any time soon. Within this new normal are casual clothes, comfortable working conditions, as well as less time spent in cars and chatting around the water cooler. These changes are immensely valuable to both employer and employee – boosting morale, productivity and work/life balance.


The recent Labour Court judgment in Botes v City of Joburg Property Company SOC Ltd and Another [2021] 2 BLLR 181 (LC) put it beyond doubt that issues which fall under section 23 of the Constitution, the right to fair labour practices, are governed by the principles of procedural and substantive fairness. Furthermore, the Court indicated that such issues are primarily dealt with through the Labour Relations Act 66 of 1995 ("LRA"). Therefore, when dealing with a dismissal dispute or unfair labour practice the question should be whether the alleged conduct sought to be impugned was procedurally and substantively fair, not lawful.


Very few workplace issues elicit as firmly held views or fears as the topic of constructive dismissal. Whether it is a manager, fearful of doing something wrong and at risk of an employee lodging the dreadful claim of constructive dismissal, or Harvey Spectre wannabes cascading their views on the legal impact of such a claim: say "constructive dismissal" and you have everyone's attention.


What is the value that employees potentially add to a business, or organisation? What should employers do in order to maximise that value? What are the potential financial implications if employers do not follow the guidelines that Ivan Israelstam lays out? Ivan explains further. 

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