Article Archive

There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched.

The workplace is not a democracy. One of the implied terms of the contract of employment is that of subordination – the employee has to submit to the authority of the employer provided this is exercised lawfully and reasonably.

How will an organisation’s upcoming skills development submission impact on its future BBBEE ratings and what steps can be taken to maximise their scores in this element?

Does a job applicant need to disclose her pregnancy status to an employer? May an employer take disciplinary action against an employee who, at the time of appointment, failed to disclose her pregnancy? Or lied about it? May an employee who is on maternity leave be dismissed for genuine reasons relating to performance, disciplinary action or redundancy?

Is it always necessary to go through onerous disciplinary or incapacity procedures before terminating an employee’s service? The short answer is no. Unfair dismissal protection only applies when an employee is dismissed.

Imagine a situation where an employer does not have job vacancy, but agrees to accommodate a person as a favour. The person is employed with the clear understanding that if things do not work out, the contract may be terminated without the employee having recourse to the remedies afforded by the Labour Relations Act. Can this be done?

Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions?

Do medical certificates issued by traditional healers have to be accepted by employers? While there does not appear to be an obligation to do so at present, indications are that it will be soon become a reality.

Can lapsed warnings be taken into account when an employee faces disciplinary action?

The Employment Equity Amendment Act of 2013 has finally come into effect on 1 August 2014. Not only large employers are effected and some provisions apply to all employers, irrespective of their size. The Department Labour is likely to be very active in assessing employers’ compliance in the months to come.

Dealing with alcohol and drug abuse in the workplace is not easy. At the one extreme you might have a driver who drinks heavily on a particular occasion while on duty, and then drives and crashes a company vehicle while under the influence of alcohol. At the other extreme, you might have a clerk who occasionally smells of alcohol at the workplace, but approaches the employer of his own free will for assistance with alcohol dependency. While these situations clearly require different approaches, there could be a number of situations in between that each requires a slightly different approach.

When employers want to terminate a fixed-term contract before the expiry date, it would seem to make sense that this could be done as long as they pay the employee for the balance of the term. However, a recent Labour Court case involving the Office of the Presidency has highlighted the fact that premature termination of employment may amount to an unfair dismissal.

With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (often referred to as the “youth wage subsidy”). It appears to be a very simple process, essentially administered by SARS.

The date by which employers have to submit their Workplace Skills Plan (WSP) and the Annual Training Report (ATR) to their SETA’s is fast approaching. It has been brought forward to 30 April 2014 (having previously been 30 June of each year).

What if a fellow employee does something that causes the employer harm – is there an obligation on his/her collegues to report this to the employer?

Just before she has to attend a disciplinary hearing, your employee submits a medical certificate stating that she is unable to attend the hearing because of some undisclosed illness. What should you do?

In the previous article we discussed recent developments is case law relating to disputes about ‘benefits’. We pointed out that such disputes that would previously have been referred to the Labour Court because it related to remuneration, may now be referred to the CCMA on the basis that the employer has exercised its discretion unfairly. But there is another potential obstacle that needs to be considered – this is the argument that the CCMA does not have the jurisdiction to arbitrate on so-called ‘disputes of interest’.

Employers have been avoiding liability for unfair labour practice claims relating to “benefits” for some time. It has been argued, often successfully, that the CCMA lacks jurisdiction where a dispute about benefits relates to remuneration. This and other barriers have since been eroded significantly.

Employees are not necessarily the only ones to blame for the abuse of sick leave in South African workplaces. It is a known fact that some doctors earn an easy fee by issuing medical certificates without examining the employee. Most employers assume that they simply have to accept medical certificates at face value.

It sometimes makes sense for companies to allow certain employees to continue working after the agreed or normal retirement age. The question is this: How does one go about terminating employment during that period?

May an employee withdraw a notice of termination and must the employer accept the withdrawal? And is there a distinction between desertion and resignation without proper notice?

It is a misconception that companies can only be reimbursed for training provided by external SETA-registered institutions. Companies can in fact also be reimbursed for structured internal, day to day training as well as Learnerships offered.

The Bill seeks to rectify anomalies and clarify uncertainties that have arisen out from the interpretation of the EEA in the past decade. We will also see the expansion of the powers of the Labour Inspectorate and the jurisdiction of the CCMA.

The DTI recently published a number of proposed amendments to the Broad Based Black Economic Empowerment Act for comment, which if implemented will have a significant impact on organisations, making it more onerous to retain or improve their ratings.

In a society with diverse religious beliefs employers are challenged not only to be tolerant, but also to accommodate that diversity in the workplace. To what extent must religious beliefs and practices of employees be accommodated?

Generally an employee may not be dismissed for refusing to sign a contract of employment. But are there circumstances where the employer can take stronger action short of dismissal?

Finally we have clarity about the nature of the forthcoming amendments to the LRA and BCEA.

When a trade union approaches an employer with the news that its employees have joined the union, one can understand that some employers might experience a sense of betrayal. But is it as bad as it seems?

Our law does not provide for a national or general age at which employees have to, or may retire. Contracts of employment may of course contain an agreed retirement age, in which case the employer may ask the employee to leave employment once he or she has reached the...