Labour Law

On Friday 21 January 2022, the Commission for Conciliation, Mediation and Arbitration (CCMA) delivered a much anticipated first pronouncement on the fairness of a dismissal following an employee’s refusal to receive the Covid-19 vaccination.

Losing income can be extremely stressful. This stress can be compounded without the relief you are entitled to from the Unemployment Insurance Fund (UIF). 

Employment contracts serve as a record of your employment terms. Your written contract also legally indicates that you agreed to the terms and conditions of your work.

Labour law accepts the firing of guilty employees only if dismissal is the last resort. The Code of Good Practice: Dismissal provides that, where employers are considering dismissing an employee they should be able to justify this drastic sanction by proving that the employee’s misconduct is so serious that it makes continued employment intolerable. One factor that could constitute such intolerability is the employee’s breach of the trust relationship.

Having your work time reduced is extremely difficult. This as reduced time often means you will receive less pay while your expenses remain the same.

 Every month, workers contribute to the Unemployment Insurance Fund (UIF). This money can be accessed should they require short term financial relief if they lost their job.

Many workers lost income due to the Covid-19 enforced lockdowns. The South African government established the Temporary Employer/Employee Relief Scheme (TERS) to supplement the lost income of these workers.  

The South African labour force is made up of around 22 million individuals, of which 34.9% are unemployed.

Where the job itself is permanent it is dangerous to employ staff on anything but a permanent contract. This is firstly because the Labour Relations Act provides for fixed-term employees to have a reasonable expectation of renewal of their contracts at the expiry date.

The Unemployment Insurance Fund (UIF) provides short-term financial relief to workers who need to have their income supplemented.

Whether the dismissal of an employee who attended work whilst awaiting a Covid-19 test result, who continued to report to work after the Covid-19 test result came back positive and who failed to follow health and safety protocols in the workplace, was fair.

The Unemployment Insurance Fund (UIF) provides workers for temporary financial relief should they find themselves in a position where they are unable to work.

In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest. 

South Africa’s progressive employment equity legislation has not gone far enough to enable people with disabilities to fully integrate into workplaces and perform their jobs optimally.

Section 197 of the Labour Relations Act (LRA) comes into effect where an undertaking (or part thereof or a service) of any kind is transferred by one employer to another as a going concern. This forces the new entity to take over all the employees of the old undertaking. 

Government is working hard to reach its target of vaccinating 67% of the country’s population by the end of this year. Many local companies have also instituted vaccine mandates for employees who want to return to the office. Ian McAlister, General Manager at CRS Technologies, discusses some of the legal issues surrounding this.

It happens too often that I receive panicked phone calls from employers who had received an unfavourable arbitration award in respect of a CCMA case that they never knew existed. That is, the employer had never received a summons to appear at the CCMA. In one such case the award required the employer to pay many tens of thousands of rands to an ex-employee. This can happen for a number of different reasons including:

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 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.