Article Archive

May an employer use behavioural characteristics (e.g. initiative, enthusiasm and determination) as criteria to select employees for retrenchment?

May employers exclude candidates for employment based on the fact that they have a criminal record, or may an employee be dismissed if the employer discovers that an employee has a criminal record?

If an employer contemplates dismissing employees based on operational requirements (retrenchment), the Labour Relations Act (LRA) requires the employer to follow certain procedures. However, may an employer approach employees informally and strike a deal by signing a mutual separation agreement, thereby avoiding the legal technicalities of the LRA?

The challenge of dealing with irregular or ‘fake’ sick notes continues. Taking disciplinary action against employees may backfire, as happened in the case of Woolworths vs Maseko and others (2024) LAC.

The Labour Appeal Court recently overturned the decision of the Labour Court in a cannabis-related case, with very costly consequences for the employer.

Since the decriminalisation of the cultivation, possession and use of cannabis for private purposes, there have been several cases in which employees have challenged their employers regarding the banning or restriction of cannabis. The Labour Court recently considered a case of alleged discrimination for religious reasons.

A case of serious misconduct may also amount to a criminal offence. Does the employer have to wait until the disciplinary proceedings have run their course before laying a criminal charge? And if the employer decides to lay a criminal charge, should the disciplinary proceedings be halted pending the finalisation of the criminal case?

Most contracts of employment contain an overtime clause which states that the employee agrees to work overtime “as and when needed”. But is the overtime clause enforceable?

Being under the influence of alcohol at work cannot be tolerated in any workplace. Some employers set the bar higher by adopting a ‘zero-tolerance’ approach with regard to the mere presence of alcohol in an employee’s system. Breath-alcohol (‘breathalyser’) tests are commonly used as a measuring tool in both instances. But just how reliable are these tests?

When an employee goes on maternity leave, others almost inevitably have to fill in for her. During her absence the question may arise whether she is really needed and whether her position has become redundant. May the employer retrench her in these circumstances? Our courts have repeatedly come to the assistance of pregnant employees who have been discriminated against. But how far does that protection go? Read more…

It is fairly common practice to allow employees to work beyond their retirement age. But what if such employees want to hang on to their job indefinitely? And to what extent are post-retirement employees protected against unfair dismissal?

Are vaccination mandates still appropriate? Do employees still have to be screened, wear masks, sanitise and keep a distance?

A new Code of Good Practice on the Prevention and Elimination of Harassment, came into effect on 18 March 2022. The Code, issued in terms of the Employment Equity Act (EEA), replaces the previous Code of Good Practice on Handling Sexual Harassment cases in the Workplace.

What does the future hold with regard to the wearing of masks, social distancing, vaccination and other protective measures in the workplace?

Theresa Mulderij vs Goldrush Group – After considering evidence and argument by both sides, the CCMA commissioner found that the dismissal of the employee had been fair. Read more…

Utter the words ‘mandatory vaccination’ and someone will see it as a call to arms. This causes most employers to be hesitant about implementing mandatory vaccination policies. But do employers really want to force employees to be vaccinated?

In South Africa, allegations of unfair discrimination tend to have a familiar theme – often an employee having been discriminated against on the basis of being black, female, pregnant, etc. But every now and then a white male claims to have been on the receiving end of unfair discrimination. If one adds language and culture to the mix, it makes for interesting reading.

Employers who intend to make vaccination mandatory may face an uphill battle.

Several provisions pertaining to Covid-19 vaccination have been added in the updated ‘Consolidated Directions on Occupational Health and Safety Measure in Certain Workplaces’ gazetted 11 June 2021.

Since the updated ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ was gazetted on 11 June 2021, two new categories of ‘paid time off’ or ‘sick leave’ came into being – both of these relate to Covid-19 vaccination.

Purposes of the Act The Protection of Personal Information Act of 2013 (POPIA) follows the example of similar, quite onerous legislation in the European Union aimed at protecting individuals’ right to privacy. More specifically, the Act aims to give effect to the...

In the wake of the devastation caused by Covid-19, fast food outlets, restaurants and caterers across the country are being dealt yet another blow. The Minister of Employment and Labour has extended the terms of the Main Agreement of a newly formed Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades (‘BCFFRCAT’) to establishments across the entire country.

[Abbreviated version] The long-term effects of Covid-19 on businesses have become clearer. Short-term interventions, such as taking annual leave, temporary lay-off, short time and pay cuts, may no longer be appropriate. It may be necessary for a more permanent measure; i.e. retrenchment. But what payments are employees entitled to if they are retrenched?

As we approach the end of a very unusual year, employers are faced with multiple questions surrounding annual leave entitlement.

Many employees took annual leave during the lockdown, resulting in a significant depletion of the leave available to them. Many employees have also been laid off or had their work hours reduced. But how has leave accrued during this period and how must it be calculated?

As the economic effects of Covid-19 drag on, employers are faced with new questions surrounding the temporary lay-off of employees. Surely lay-off cannot continue forever. So, for how long may employees be laid off?

Disciplinary hearings via Skype? Consulting via Zoom? Are such processes allowed? Electronic platforms have become more accessible. The Covid-19 pandemic has alerted us to opportunities that were not obvious before. Does this mean that we may embrace these platforms in labour and employment law processes?

With a large proportion of the population likely to become infected with Covid-19 before a vaccine is available, businesses are in for a rough ride in the coming months. Some employees will have tested positive, others might simply present with symptoms. Are they entitled to paid sick leave, UIF illness benefits or Compensation Fund benefits?