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No place for racisim in the workplace

No place for racism in the workplace

By Samiksha Singh, Director and Zola Mcaciso, Employment, Cliffe Dekker Hofmeyr

The Labour Appeal Court (LAC) issued a stern warning that it will not tolerate racism, in any form, in the workplace. In the recent case of the City of Cape Town v Freddie & Others (2016) 37 ILJ 1364 (LAC), the LAC reviewed and set aside an arbitration award in which the Arbitrator found that the employee was unfairly dismissed for making repeated unsubstantiated racist allegations about his manager.

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hands off my salary

Hands off my salary!

by Armando Aguiar, Director, Natalie Keetsi, Associate, Dispute resolution department, ENSafrica Constitutional Court orders judicial oversight when issuing emoluments attachment orders.

The credit industry in South Africa is significant and lucrative. According to the National Credit Regulator’s Consumer Credit Market Report for the first quarter of 2016, South Africa’s total outstanding gross debtors’ book for consumers for the quarter ending March 2016 was a staggering R1.66-trillion, in respect of which unsecured credit accounted for R165.16-billion. The unsecured credit sector is where the poor, who historically have not had access to formal banking credit facilities, are exposed and often taken advantage of by unscrupulous credit providers.

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Absenteeism

MEDICAL CERTIFICATES FOR ABSENCES ON FRIDAYS AND MONDAYS

The BCEA states clearly in the section 23 that if an employee has been absent from work for more than two consecutive days (which means three days or more) then he is obliged to produce a medical certificate. A Friday is 1 day only, and a Monday is 1 day only, and the same applies to the day before and the day after a public holiday - those days each constitute only 1 day, and therefore no medical certificate is required. It is unlawful for an employer to insist that an employee produce a medical certificate for an absence on a Friday, or on a Monday, or on the Friday and the Monday, or for and absence on the day before or the day after a public holiday.

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How to deal with Abscondment

By Jan du Toit

 

Most employers will at some stage have to deal with an employee that failed to return to work. This normally happens after a payday, a period of extended sick leave or a shutdown over December. But how does one know that the employee absconded and is not just absent as a result of illness or other circumstances beyond the control of the employee? The truth is that the employer will not know, especially if the employee failed to communicate his / her whereabouts. The employer can therefore not assume that the employee absconded; the onus rests on the employer to establish that the employee will not return to work before a dismissal can be considered.

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LEGAL PREJUDICE AND THE CCMA

 

lvan lsraelstam

The word ‘prejudice’ has a number of different meanings. Any employer needs to understand these meanings in the context of labour law because all South African employers are bound by very strict and numerous labour laws.

The first meaning of prejudice refers to an opinion formed before the receipt of the relevant facts. It appears that the word ‘prejudice’ has the same root as the word ‘prejudge’. Therefore, the chairperson of a disciplinary hearing or an arbitrator could be described as prejudiced if he/she makes a finding that is based less on the facts of the case than on their opinions of feelings towards the parties in the case. For example, the disciplinary hearing chairperson might find a driver guilty of damaging the company vehicle because the driver had once been rude to the chairperson. The chairperson therefore has personal reason for disliking the driver. He/she might therefore make up his/her mind that the employee is guilty even before the hearing gets underway. This could result in a dismissal despite the fact that the complainant brings no proof at all of the driver’s guilt. Such prejudice or bias would be grounds for the employee to take the employer to CCMA.

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Beware of cancelling contracts


The courts have found that the employee is protected by labour law from the moment the employment contract is concluded even if the employee has not yet started work; and even if the contract has only been orally agreed.

According to section 213 of the LRA an employee is:

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

(b) any other person who in any manner assists in carrying out or conducting the business of an employer…”

This definition seems strongly implies that the employer’s legal obligations begin on the day that the employee physically begins work. However, this is not necessarily so. For example,  in the case of Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39).

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Sleeping on duty

Sleeping on duty – Amen! I wasn’t sleeping, I was praying…

Advocate Nicolene Erasmus

Employers often laugh at the expense of employees who have amazing explanations for their misconduct. The stories of employees who sleep on duty are not the exception, but at least one commissioner believed an employee’s story that he was not sleeping on duty, but in fact praying.

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Beware of fixed term contracts

Beware the use of fixed-term contracts

Ivan Israelstam

According to sections 193 and 194 of the Labour Relations Act (LRA) the awards and orders that can be made against the employer for unfair dismissal are as follows: 

  • The LRA requires the CCMA or Labour Court to reinstate the employee. This means that the employer must give the employee his/her job back and to pay the employee all remuneration calculated back to the date of the dismissal. The employer must also reinstate all the employee’s benefits retrospectively.
     
  • The LRA also permits the CCMA or Labour Court to order re-employment instead of reinstatement. This means that, while the employer must give the employee his/her job back, this will not be with back pay.
     
  • Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.
     
  • If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.
     
  • Such compensation is payable in addition to all other payments due to the employee. These could include notice pay, leave pay and even payment for the unexpired portion of the employee’s contract. The Labour Court and CCMA have the powers to make such additional awards by virtue of section 195 of the LRA and section 74(1) of the BCEA. Furthermore, the Labour Court has jurisdiction, in terms of section 77(3) of the BCEA to determine any matter relating to a contract of employment.Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts. Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date and says goodbye to the employee. However, this is a dangerous tactic because labour law has closed this loophole.

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Disruptions in Disciplinary proceedings

 

Crack down on disruptions of disciplinary hearings

 

Source: SA Labour guide -Ivan Israelstam

 

The central reason that a presiding officer (PO) attends a disciplinary hearing is to hear and understand the evidence from both sides. The PO must hear this evidence properly in order to be able to consider it once the hearing is adjourned for purposes of a verdict. The PO then assesses the evidence collected at the hearing in order to decide whether the employee is guilty or not guilty of the charges.

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Annual Labour Market Bulletin

Annual Labour Market Bulletin – Department of Labour

SA labour market still far from normal as employment staggers amid staggering economic recovery - Department of Labour’s report

The Annual Labour Market Bulletin (ALMB) 2011/12 report by the Department of Labour (DoL) has found that although economic conditions have relatively improved in the three years, job creation still remains restrained in South Africa.

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Leadership- can it be taught

Source: News24

By Chris Moerdyk

I had a really interesting conversation with myself the other day. It was all about leadership and those qualities that don't appear on CVs but which, in my opinion, are vitally important in separating pseudo leaders from real leaders.

I have found, for example, that smiling is something that never seems to appear on any CV yet it is so incredibly important. I have found that even if times are tough, having a chairman walk into a boardroom looking as though he's just had a boil lanced on his arse or reversed over his wife's puppy, tends to get things off to a difficult start.

Having said that, President Zuma smiles and giggles a lot which does not prove that smiling and giggling are not good leadership traits, but just that leadership is about doing a heck of a lot else besides just smiling and giggling.

I find too, that many financial directors tend to get up to start presenting reviews or forecasts by doing impressions of undertakers walking up the church aisle ahead of a coffin

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