Judith Griessel - Labour Law Topics from the Web

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Judith Griessel - Labour Law Topics from the Web

A collection of articles and case law discussions by experts about the latest developments in Labour Law, Employment Relations and related areas (South Africa).

Compensation awarded by Labour Court to employer

Compensation awarded by Labour Court to employer after unprotected strike. In this matter, the unprotected strike resulted in the manager being assaulted.

The commencement date of POPIA is no April Fool's joke

The commencement date of POPIA is no April Fool's joke () - Chairperson of the Information Regulator, Advocate Pansy Tlakula, recently sent a request to President Cyril Ramaphosa to declare that the remaining provisions of the Protection of Personal Information Act, 2013 (POPIA) commence on 1 April 2020

DISMISSAL DUE TO THE BREAKDOWN OF THE TRUST RELATIONSHIP - Werksmans

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate and Chelsea Roux, Candidate Attorney Issue Whether an act of dishonesty would lead to a

Cliffe Dekker Hofmeyr - What's up with WhatsApp - Is it time to vary our non-variation clauses?

WhatsApp has become an integral part of many people's lives and their preferred platform for communicating. WhatsApp is simple and convenient to use. It allows you to send messages, make and receive voice and video calls and it also potentially allows one to conclude contractual agreements as seen in the recent court decision in Kgopana v Matlala (1081/2018) [2019] ZASCA 174 (2 December 2019).

Cliffe Dekker Hofmeyr - If your organisation employs asylum seekers and refugees, you may want to read this...

At the beginning of 2020, new amendments to the Refugees Act 130 of 1998 (The Refugees Act) came into effect. The amendments came into effect as part of the Refugee Amendment Act on 1 January 2020, and were gazetted on 27 December 2020.

Contract termination vs employee dismissal - how are they interrelated?

A recent case decided by the South African High Court has examined the curious interplay of an employee's rights as they arise from both the written contract of employment and, at the same time, labour legislation. Although the judgment may at first seem confusing, a careful analysis of its outcome sheds light on how these parallel sources of the parties' rights and obligations operate in conjunction.

SECTION 198A(3)(B) DEEMING PROVISION: LIABILITY FOR THE CLIENT EMPLOYER REGARDLESS OF THE ROLE THAT THE EMPLOYER STILL RETAINS - Werksmans

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate; and Chelsea Roux, Candidate Attorney ISSUE In the case of General Industries Workers

Employee data protection in South Africa | Lexology

This article provides a brief overview of key considerations surrounding employee data protection in South Africa, including relevant procedures for data storage and transfer and background checks.

An attorney’s lack of care and diligence can have adverse costs consequences - Lawtons Africa

A reminder to all attorneys who specialize in personal injury matters that care and diligence are required prior to the engagement of medical experts. The reliance on the say-so of the client does not meet the basic standard of reasonableness. The attorney is required to do some leg work for a change, otherwise the consequences will be costly.

Lawtons Africa - Legal system crucial to mitigating sexual harassment and violence in workplaces

As part of the preparations and aligning with the ILO Convention, the CEE is reviewing the current employment equity policy instruments with the aim of developing a comprehensive Code of Good Practice on the elimination of violence and harassment in the World of Work. The new Code is expected to be published by June 2020. “We often encounter situations in which the target of sexual harassment is fearful of lodging a complaint while the employers, even when faced with substantiating evidence, are frequently unwilling or uncertain how to respond. Making the legal foundations including codes of practice more robust and their greater enforcement can deter such incidents which reduce productivity, service quality and have detrimental effects on individuals as well as organisations’ brands and reputation” . Two recent legal cases, both of which ruled in favour of complainants, indicate that this process of addressing sexual harassment in the workplace has gained some ground in favour of the employee.

The recovery of losses suffered as a result of employee misconduct

Usually when an employee is alleged to have committed misconduct, the employee is taken through a disciplinary process and thereafter dismissed if found guilty of such misconduct. After finding an employee, Mr Mshushisi Daniel Mthimkhulu, guilty of misconduct and dismissing him, PRASA approached the High Court to recover the loss it suffered as a result of the misconduct.

Cliffe Dekker Hofmeyr - Victory Against HIV Discrimination

The court confirmed that there may well be legitimate reasons why, in some cases, people could not be placed in certain positions based on their HIV status, but this does not justify a blanket approach. Ndita J held that the indignity and humiliation suffered by Mr. X is regrettable, more so because it was at the instance of the State. As such, the court directed the respondents to provide the SAHRC with the information it sought within two months from the judgment.

The Constitutional Court can learn from Canada’s Cannabis Act

What are the definitions, of ‘privacy’ and ‘a private place’ — and what about the privacy of one’s car, ask Martha Smit and Roxanne Gilbert

The role of directors to protect personal information from cybercrime

Three pieces of legislation govern the fiduciary duties that directors must comply with in order to protect personal information from cybercrimes.

Supreme Court of Appeal declared the hate speech provision in the Promotion of Equality and Prevention of Unfair Discrimination Act invalid.

The SCA recently declared the hate speech provision contained in the Promotion of Equality and Prevention of Unfair Discrimination Act invalid, and held that the provision was ‘overbroad’ and unjustifiably limited the right to freedom of expression. The appeal court struck down the legislation, giving Parliament 18 months to fix it. But in the meantime the court has, through “reading in” some words and cutting out others, created a new section 10 (1) to apply until Parliament amends the Act. The new section requires that there must be incitement to cause harm and sticks to the grounds in section 16 (2) of the Constitution — adding one, the ground of sexual orientation. The declaration of invalidity must be confirmed by the Constitutional Court to become effective. If the judgment (and the remedy) is confirmed, section 10(1) of PEPUDA will read as follows until such time as Parliament redrafts the section: “No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm”.

Cannabis: Growing High on our List of Priorities

A lot of attention has been given to the changes in the South African legislative framework in so far as it relates to Cannabis. Of extreme importance is an understanding of these changes and being able to differentiate between cultivation for private use and the sale of CBD products on the open market.

THE LINE BETWEEN POLITICAL PARTIES AND TRADE UNIONS IN THE WORKPLACE - By LUDWIG FRAHM-ARP (Fasken)

"The approach adopted by the EFF is that the Constitution entitles the EFF to conduct itself as it did in this case. It is sadly mistaken in this respect. It is by now trite law that direct reliance on the Constitution is not permissible where there is a specific statute regulating the constitutional right. In this case, the rights under section 23 of the Constitution are regulated by the LRA and other related employment law statutes, and it is incumbent and prescribed that all the provisions of these statutes must be complied within pursuit of these rights. The Constitution lends no support for the EFF to have become involved in this matter."

Cliffe Dekker Hofmeyr - No rest for the wicked Social Media Policy

Our courts have often dealt with employees operating under the misconception that their social network sites are personal, private and detached from their employment. Employees may often feel secure under the guise offered by the divide between work and personal life, particularly during the festive leave season where employees spend less time in their work environment.

WEAPONS DURING PROTECTED STRIKE = FAIR DISMISSAL?

Employees engaged in a protected strike action who carry dangerous weapons run the risk of dismissal...

RESIGNATION WITH IMMEDIATE EFFECT - A TALE OF CONFUSION - Werksmans

By Sandile Tom, Director and Dale Adams, Candidate Attorney It is trite law that certain prescribed periods of notice become applicable upon termination

Damned if you Do and Damned if you Don’t – An Employer’s Conundrum - By Cowan-Harper-Madikizela Attorneys (Tanya Mulligan and James Horn)

Judith Griessel: Great article about a very real dilemma for employers: should employees who may have committed serious misconduct be allowed to go unpunished solely because employers are unable or unwilling to secure the oral evidence of the customer who witnessed and reported the alleged misconduct? Insisting on requiring a reluctant customer to testify (both internally and at the CCMA) may be severely detrimental to the ongoing relationship with the customer. But, relying on a mere statement from the customer is hearsay and even if admitted, poses a real dilemma for the chairperson / arbitrator in terms of whose version of events to accept. Because there is no way to truly evaluate if the customer's version is factually accurate - and it cannot be simply accepted (in law) that 'the customer is always right'! The advice given in this article of how best to get around such situations is worth following.

How To Make Sure Your HR Policies Are Ready for 2020

It is good practice for employers to review and audit their human resources and labour relations policies and practices annually.

The Labour Court disposes of another hopeless case

On 17 October 2019 the Labour Court was faced with yet another hopeless case, although on this occasion the offending party was the employer.

What is the ‘law of the land’ when dealing with hearsay evidence during arbitration proceedings - De Rebus

In the recent judgment of Exxaro Coal (Pty) Ltd the Labour Appeal Court (LAC) dealt with a paramount issue around the interplay between the powers granted to commissioners at the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of s 138 of the Labour Relations Act 66 of 1995 (LRA) and s 3 of the Law of Evidence Amendment Act 45 of 1988. To be specific, the court addressed the issue concerning the admissibility of hearsay evidence during arbitration proceedings at the CCMA.

Master or servant – Who owns the fruits of labour?

To assess IP ownership, a useful question to ask is whether the IP would not have been created but for the employee’s employment with the employer.

Formal disciplinary hearings - why do organisations still do them?

Formal disciplinary hearings are not required by law, yet it is still generally regarded as a necessity by employers and employees alike. What are the reasons?

The Constitutional Court, cannabis — and important caveats

Personal use of cannabis in a personal space is legal — except when it might not be, write Martha Smit and Roxanne Gilbert

Cliffe Dekker Hofmeyr - Vicarious liability of an employer when an employee commits an intentional wrong entirely for his/her own purpose

Since as early as Roman times, it has been the case that an employer is vicariously liable for a wrong committed by an employee during the course or scope of his or her employment. The liability of an employer, however, under circumstances where an employee commits an intentional wrong entirely for his or her own purpose, is a very different kettle of fish.

Disclosure of the reasons for leaving your previous employment

How much must you disclose to (or hide from) a prospective employer about the reasons for leaving your previous job? It matters if it is material to your new job.

FURTHER DEVELOPMENTS ON RESIGNATION WITH IMMEDIATE EFFECT

Tristyn Naidoo and Sedayshum Naidu v Standard Bank SA Ltd and SBG Securities (Pty) Ltd (Labour Court Case No: J1177/190) Previous case law In 2016 in Mtati v KPMG Services (Pty) Ltd, the Labour Court found that an employee is entitled to terminate th...

South Africa: Important Clauses to Include in Settlement Agreements | Insight | Baker McKenzie

Risks are substantially mitigated through the conclusion of a written settlement agreement that should contain certain clauses.

Constructively dismissed or resigned on own volition?

The concept of constructive dismissal has its roots in English law and was adopted by the Industrial Court in the course of the development of the labour law jurisprudence under the previous Labour Relations Act.

Is it okay to secretly record your boss? - OPINION | Politicsweb

Very recently, the Amabhungane Centre for Investigative Journalism challenged portions of the Regulation of Interception of Communication and Provision of Communication Related Information Act (RICA) in the Pretoria High Court. In making his finding, Judge Sutherland found that those sections of RICA which allowed surveillance of a person's communications were unconstitutional.

What the decriminalisation of cannabis means for the workplace

Following the Constitutional Court's Prince judgment, cannabis use, possession and cultivation in South Africa has been decriminalised with adult persons now permitted to use, possess and cultivate cannabis in a private place for personal consumption. (See Minister of Justice and Constitutional Development and Others v Prince; NDPP and Others v Rubin; NDPP and Others v Acton and Others [2018] ZACC 30).

JudithGriessel

Judith Griessel - Recruitment legalities

Legal points around recruitment and hiring practices (South Africa)

Is an employer restricted to the categorisation of the charges during the disciplinary proceedings? Cliffe Dekker Hofmeyr

Procedural fairness in disciplinary proceedings requires an employee to be made aware and understand the charges against him. This is not only to assist the employee in deciding how to plead but also to ensure that the employee understands the case he has to answer.

OFF-DUTY MISCONDUCT, FREEDOM OF EXPRESSION AND THE PARITY PRINCIPLE

The Labour Court had the opportunity recently to address these and other issues within the context of a racial slur posted on Facebook, and to provide further guidance to employers in respect of conducting internal disciplinary enquiries. Background ...

Disciplinary charges are not criminal charges LAC confirms

Employers’ disciplinary processes and procedures are often steeped in formalism and contain elements of a criminal prosecution

Freedom of expression and keeping dismissal at bay

South Africa affords everyone the right to freedom of expression, however, The right to freedom of expression does not operate in a vacuum

The NQF Amendment Act & Fraudulent Qualifications

Cyril Ramaphosa signed into law the NQF Amendment Act 12 of 2019 to help comabt Fraudulent Qualifications in the workplace.

Do not take the deeming provision lightly - Global Business Solutions

The matter of AMITU obo MEMBERS / National Brands Snackworks and Adcorp BLU (KNDB16915-17) dealt with the interpretation of the deeming provision. The Commissioner emphasised that this is not a transfer to a new employment relationship but rather a change in the statutory attribution of the responsibility of the employer within the same triangular employment relationship. He found that nothing in the Constitutional Court outcome prevents the commercial relationship and for the TES to play the same role that it played prior to deeming except for the obligations expressly referred to in the LRA. He also indicated that there can be no order for the TESs services to be terminated by the company nor can the TES be forced to insource and services and functions performed by the TES and likened it to a practice of outsourced labour consultants and accountants. The TES triangular relationship and the commercial agreement continues post deeming and if deeming is applicable it is for rights and obligations only under the LRA.

Cliffe Dekker Hofmeyr - Update: Ladies and gentlemen, it's time to place your (secret) ballots

The requirement to hold a secret ballot before embarking on strike action has been a hot topic of late. Here's a recap: S19 of the Labour Relations Amendment Act, No 8 of 2018 (Amendment Act) requires trade unions (and employers' organisations) to amend their constitutions to provide for secret strike ballots prior to embarking on strike action, in the event that their constitutions do not already provide for this.

The Constitutional Court restricts the use of derivative misconduct

Derivative misconduct: is where an employee who has knowledge of wrongdoing towards said employer fails to disclose such knowledge to their employer.

WhatsApp in a clinical setting: The good, the bad and the law

WhatsApp is an attractive and potentially secure communication tool, but with great power comes great responsibility. If information is shared among healthcare providers on WhatsApp without the consent of a patient, it must be justifiable in the eyes of the law, in the patient’s best interest and able to withstand moral judgement if questioned on professional boards.

Salary discrimination not automatically unfair - COMMENT | Politicsweb

Case law is beginning to develop the South African labour law around unfair discrimination which has arisen since the introduction of the equal pay for equal work provisions of the Employment Equity Act (EEA) in 2014.

Business Maverick: When logic fails: Labour unions reject their members’ right to a secret vote

Some South African trade unions are spitting mad at the Registrar of Labour Relations who had the temerity last week to suggest the unions should abide by the January 2019 changes to South Africa’s labour law. At the apparent heart of their discontent lies the obligation of union members to cast a secret vote in favour of a strike as a legal prerequisite.

Competent verdicts are applicable in workplace disciplinary matters - Bowmans

A recent judgement by the Labour Appeal Court indicates that competent verdicts are permissible in the labour space.

Investing in your employees doesn’t make them yours - Skills & training

Employers invest a lot of time & effort training employees. Can employers restrain an employee from utilising such skills & training at their new employer?

Are your contracts with suppliers / contractors sufficient to ensure compliance with POPIA? - Werksmans

Here is a handy checklist of key contractual components that you can use to ensure that your contracts with operators are POPIA compliant and to reduce your risks when outsourcing the processing of personal information to third parties.

Is the Geolocation of Employees Lawful? - Michalsons

Geolocation is relevant to anyone who wants to know about the tracking of employees' whereabouts during work hours. But is the process lawful?

Conversations recorded without your consent can be used against you | Lexology

It is becoming increasingly easy for employees in the workplace to record conversations, meetings and disciplinary enquiries without the consent of…

Dismissal of directors: South Africa's law needs clarity on the role of courts

Directors who are unfairly kicked out of office by a hostile board face challenges since the legal remedies open to them are unclear.

Who is the boss of your cake? - Creations subject to copyright protection

While imitation may be a great source of flattery, one should be cautious in taking inspiration from the creations of others, even when it comes to cooking.

Rocking the gig economy | Investec

Fuelled by the digital age, the gig economy is redefining the definition of a company and our career paths.

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, yes.

Red Carded For Playing The Race Card - Werksmans

By Bradley Workman-Davies, Director The issue of race and racial discrimination is well-recognised in South Africa as a problem area for the various

The Impact of the SAB v Long Ruling on Suspending Your Employee

The Constitutional Court in Long v SAB, held that ‘there is no requirement’ for an employer to afford an employee an opportunity to make representations...

Publications on employment issues - by Griessel Consulting

Practical labour law - discussions about a variety of employment issues that come up in workplaces regularly.

Cliffe Dekker Hofmeyr - Not snitching may get you stitches too: The Constitutional Court decides on duty to rat on fellow employees

Derivative misconduct stems from an employee's failure to offer reasonable assistance to the employer in the detection of those responsible for misconduct. In other words, it is seen as the failure of an employee to adhere to his/her duty to act in the best interests of the employer.

Is arbitrariness a sufficient ground to establish unfair discrimination in wage differentiation disputes in terms of s6(1) of the EEA? I Cliffe Dekker Hofmeyr

In Naidoo and Others v Parliament of the Republic of South Africa [2018] ZALCCT 38, 69 employees who form part of the Parliamentary Protection Services (PPS) took Parliament to the Labour Court (LC) for allegedly discriminating against them unfairly on an arbitrary ground as contemplated by s6(1) of the Employment Equity Act, No 55 of 1998 as amended (EEA).

Restraint of trade: What does it mean and when is it enforceable?

A restraint of trade clause limits the ability of an employee to accept future employment which could be to the detriment of their current employer.

Employment references: Practical guidelines to avoid delictual liability - De Rebus

By Martie Bloem - The high unemployment rate in South Africa (SA) has the inevitable effect of high numbers of job applications in different employment sectors. The fact that […]

Here’s who qualifies for time off under South Africa’s new leave laws

Law firm, Webber Wentzel, sets out the biggest changes to the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF).

Don't be a sell-out, but working during strike action could be a bonus

Most employers are familiar with the principle of no work, no pay in the context of strike action, but what about the concept of work, pay, extra pay? Can employers incentivise or reward non-striking employees who pick up the slack?

Business restructures: How important is the first statutory consultation notice to employees?

Human resources practitioners are often called upon to advise and lead employee consultation in a business restructure. Sometimes, a legal review of the statutory consultation notice issued under section 189(3) of the Labour Relations Act, 1995 (the LRA) is also undertaken.

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