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NEWSLETTERS

06 February 2018

UBER DRIVER QUESTION REMAINS UNANSWERED

There has been an ongoing and heated debate in various countries (including South Africa) about whether or not Uber Drivers can be defined as employees.  In July 2017, the Commission for Conciliation, Mediation and Arbitration (CCMA) faced the question regarding the employment status of Uber drivers and had to rule whether the drivers were independent contractors or employees.

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UBER DRIVER QUESTION REMAINS UNANSWERED

01 February 2018

IMPLEMENTATION OF THE NEW NATIONAL MINIMUM WAGE

Until recently, there was no mandatory national minimum wage which employers were required to pay to even entry level staff, however, recent developments have changed this position.

It is noted that with the new regulations set to take effect from May 2018, the new national minimum wage will require employers across all sectors, including Agriculture and Domestic Workers, to pay R 20-00 (twenty rand) per hour. This effectively means the following:

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IMPLEMENTATION OF THE NEW NATIONAL MINIMUM WAGE

23 January 2018

FAMILY RESPONSIBILITY LEAVE

Family responsibility leave often presents a contention regarding who may be entitled to the leave and under what circumstances this entitlement comes about.

Section 27 of The Basic Conditions of Employment Act stipulates that family responsibility leave is applicable to employees who have been employed for a minimum of 4 months and must work more than 24 hours a month.

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FAMILY RESPONSIBILIY LEAVE

15 January 2018

WHY SKILLS DEVELOPMENT MATTERS

In 1998 the Skills Development Act was introduced out in an effort to assist with the development of skills within the South African workforce by encouraging workplaces to become active learning environments and make provisions for ongoing education and skills development. The major factor preventing South Africa from fighting against poverty is the inaccessibility of higher education and training. Approximately 1.5% of South Africa’s Gross Domestic Product is contributed towards education and training post school. Amongst others, most of these funds are distributed to vocational colleges and the National Skills Development Fund.

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WHY SKILLS DEVELOPMENT MATTERS

09 January 2018

PATERNITY LEAVE IN SOUTH AFRICA

Generally speaking, the position in South Africa is that new fathers are not entitled to paternity leave and would unfortunately have to rely on the meagre few days granted to them for Family Responsibility Leave, which is by new means sufficient when considering what a life changing moment they have gone through, however, recently Parliament has passed the Labour Laws Amendment Bill which seeks to grant the right of parental leave to South African fathers.

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PATERNITY LEAVE IN SOUTH AFRICA 9 Jan 2018

14 December 2017

EMPLOYMENT EQUITY – COMPLIANCE AND PENALTIES

Employment Equity (EE) is by far one of the most challenging and underestimated elements of transformation that South African employers are faced with. It should be addressed as a high priority, however many organisations underestimate the process of introducing and implementing the EE guidelines and regulations into their internal policies, procedures and practices. Recently, a major airliner operating in South Africa was reportedly fined R900 000 for failing to comply with the Employment Equity Act (EEA). This highlights the seriousness with which the Department of Labour (DOL) takes non-compliance with the provisions of the Act and shows that they will not hesitate to bring the maximum penalty applicable against defaulters.

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EMPLOYMENT EQUITY – COMPLIANCE AND PENALTIES 14 dec

2 November 2017

THE IMPORTANCE OF FOLLOWING A FAIR PROCESS IN RETRENCHMENTS

In current news relating to GM motors leaving South Africa and the recent debacle concerning KPMG, this has led to both Company’s carrying out retrenchments. It is important for all Employers to understand what is expected of them when considering the retrenchment of employees and the process which should be followed in order to comply with the Labour laws in South Africa.

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THE IMPORTANCE OF FOLLOWING A FAIR PROCESS IN RETRENCHMENTS

20 October 2017

LEGAL REPRESENTATION AT A DISCIPLINARY HEARING 

As the point of departure, disciplinary hearings are regarded as internal processes used by the employer in order to progressively discipline an employee who might have contravened any valid and reasonable rule, which the employee was aware of and/or was reasonably expected to be aware of.

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LEGAL REPRESENTATION AT A DISCIPLINARY HEARING

12 October 2017

RIGHTS CONCERNING THE RESTRAINT OF TRADE AGREEMENT IN THE WORKPLACE

Restraint of trade is a tool which the employer uses to protect his economic interests and trade secrets from competitors. A restraint of trade agreement is defined as an agreement between the employer and employee whereby provision is made in the employment contract which restricts an employee from being employed by a competitor of the employer or restricts the employee from establishing a business in competition with the employer following termination of employment.

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RIGHTS CONCERNING THE RESTRAINT OF TRADE AGREEMENT IN THE WORKPLACE

05 October 2017

MAY AN EMPLOYER TAKE DISCIPLINARY ACTION AGAINST EMPLOYEES WHO MAKE DISCLOSURES WHICH ARE POSSIBLY DETRIMENTAL TO AN EMPLOYER?

As any Employer knows, an Employee is placed under a duty to always act in the best interests of his or her Employer for fear of facing disciplinary action, but is this duty one which must be adhered to at all costs or are there limitations? And what if the Employer engages in unlawful or unethical conduct? Can the Employee be disciplined for providing tip-offs relating to underhanded conduct which ultimately prejudice the Employer?

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Protected Disclosures

13 SEPTEMBER 2017

ADRIAN LACKAY V SARS AND THE NATURE OF CONSTRUCTIVE DISMISSAL

The matter of Adrian Lackay and the South African Revenue Service (SARS), is currently being heard in the Commission for Conciliation, Mediation and Arbitration (CCMA), and relates to the issue of Constructive dismissal in the work place. It should firstly be explained what Constructive dismissal entails in order to understand the merits of the matter.

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ADRIAN LACKAY V SARS AND THE NATURE OF CONSTRUCTIVE DISMISSAL

13 JULY 2017

WHO IS THE EMPLOYER, THE LABOUR BROKER OR THE CLIENT?

The recent judgment by the Labour Appeal Court (LAC) in respect of Assign Services v NUMSA and others has sparked yet another interesting debate around the interpretation of Section 198A(3)(b)(i) of the Labour Relations Act (LRA), in as far as whether the status of the employment relationship of employees placed with the client are “deemed” to be employees of the very client or of the Labour Broker (TES).

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20170713_LAC_RULING_RE-TEMPORARY_EMPLOYMENT_SERVICES

21 JULY 2017

Use of Social Media OUTSIDE the workplace.

Not only has the advent of social media become a great part of our lives, it has also impacted greatly on the workplace environment. However, can the use of social media after hours be linked to an employer or organization and accordingly warrant disciplinary action? The use of social media after hours involving and/or referencing the employer can be regulated contractually under “off duty conduct” or by means of a social media policy which would make reference to same. The extent to which the use of the social media after hours affected the Company would need to be considered and regulated accordingly.

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20170721 Use of Social Media OUTSIDE the workplace

06 February 2018

ENTERPRISE- AND SUPPLIER DEVELOPMENT: CREATIVE VALUE-ADDING INITIATIVES

It is common knowledge by now that the 2013 General Amended Codes, effective from 01 May 2015, have brought about significant changes in how companies, irrespective of size, approach and regard B-BBEE.

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ENTERPRISE & SUPPLIER DEVELOPMENT

01 February 2018

THE FUNCTION AND FUTURE LANDSCAPE OF THE SETAS IN SOUTH AFRICA

The Sector Education and Training Authorities (SETAs) were introduced as a replacement of 33 Industry Training Boards. The Industry Training Boards had limited powers and responsibilities. They only covered certain sectors and mainly focused on Apprenticeships. As stated in Chapter 3, Section 10 of the Skills Development Act of 1998, the SETAs were formulated to develop a sector skills plan within the framework of the National Skills Development Strategy. The SETAs are responsible for approving the Workplace Skills Plan (WSP), allocating and awarding grants for national training and development, undertaking quality assurance and monitoring education and training in a specific sector. The implementation of the skills is done through but not limited to the establishment of learnerships, internships and unit based skills programmes.

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THE FUNCTION AND FUTURE LANDSCAPE OF THE SETAS IN SOUTH AFRICA

23 January 2018

SECTOR  CODES and/or TRANSFORMATION CHARTERS

Most companies operating in South Africa are familiar with the term B-BBEE and more so with the old 2007 DTI Codes of Good Practice as well as the 2013 Amended Codes.

However, based on the nature of your business and/or the industry or sector in which your company operates, a Sector Code or Transformation Charter would most likely dictate how your company’s B-BBEE status needs to be determined.

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SECTOR CODES and:or TRANSFORMATION CHARTERS

15 January 2018

THE IMPORTANCE OF AN IMPARTIAL CHAIRPERSON

Employers, when tasked with the discipline of their employees who have committed offences within the workplace which have either been repeatedly committed or are of a serious nature, will have to resort to the holding of a disciplinary inquiry.

When a disciplinary inquiry is held, it is important that employers make use of a chairperson whom is impartial to the process. It is often not fully understood what is meant by impartiality and what this may constitute for an employer. The word Impartial is defined as treating all rivals or disputants equally which effectively means that all parties to a dispute are to be treated the same.

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THE IMPORTANCE OF AN IMPARTIAL CHAIRPERSON

09 January 2018

B-BBEE COMPLIANCE REPORTS

The Broad-Based Black Economic Empowerment Act 53 of 2003 as amended by Act 46 of 2013 (hereinafter referred to as the Act) requires all spheres of government, public entities, organs of state, public companies listed on the JSE and all Sectoral Education and Training Authorities (SETA’s), as contemplated in the 1998 Skills Development Act, to submit B-BBEE Compliance Reports to the B-BBEE Commission on an annual basis..

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B-BBEE COMPLIANCE REPORTS 9 Jan 2018

14 December 2017

THE EMPLOYMENT RIGHTS OF IMMIGRANTS/ FOREIGN NATIONALS IN SOUTH AFRICA

Employers who hire foreign nationals should take note of the recent judgement of Sithole v Metal and Engineering Industries Bargaining Council & others (JR318/15) which was delivered on 24 November 2017, where an employee had been dismissed as he did not have a valid work permit. The above mentioned case provides what the position is concerning a foreigners’ employment rights in South Africa and if such foreigner has any employment rights when they do not have a valid work permit.

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THE EMPLOYMENT RIGHTS OF IMMIGRANTS: FOREIGN NATIONALS IN SOUTH AFRICA

12 December 2017

THE DTI GAZETTES THE LONG AWAITED AMENDED FINANCIAL SERVICES SECTOR CODE

On Friday, 01 December 2017, Minister Rob Davies gazetted the Amended Financial Services Sector Code (also referred to as the Amended FSC), effective from date of issue.

As per the DTI’s Media Statement issued on Monday 04 December 2017, Minister Davies has been quoted saying that transformation for the Financial Services Sector is vital for our country as this sector manages over R8 trillion assets, contributing 21.6 per cent to the gross domestic product of the economy, annually.

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THE DTI GAZETTES THE LONG AWAITED AMENDED FINANCIAL SERVICES SECTOR CODE 12 dec

30 November 2017

THE IMPORTANCE OF A ZERO TOLERANCE POLICY ON INTOXICATING SUBSTANCES

Employers should be aware of the importance of their wording when implementing policies concerning the use and abuse of intoxicating substances within the work place. The reason why the wording should be carefully considered is to allow the employer to discipline their employees more effectively, should such a policy not be worded correctly it could potentially result in a matter being referred to the CCMA as an unfair dismissal.

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THE IMPORTANCE OF A ZERO TOLERANCE POLICY ON INTOXICATING SUBSTANCES

23 October 2017

THE IMPORTANCE OF EMPLOYMENT EQUITY AND ITS IMPLEMENTATION

Before South Africa became a democratic country, there were colonial and apartheid laws that excluded black people from participating in the educational and labour systems. To rectify this and to bring an end to the discrimination, the Constitution was put in place, giving all the occupants of the land the right to equality.

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THE IMPORTANCE OF EMPLOYMENT EQUITY AND ITS IMPLEMENTATION

16 October 2017

SKILLS DEVELOPMENT AND THE UNCERTAINTY REGARDING THE RECOGNITION OF BLACK UNEMPLOYED PEOPLE PARTICIPATING IN TRAINING SPECIFIED IN THE SKILLS DEVELOPMENT MATRIX 

Many employers have raised questions and expressed uncertainty regarding the recognition of black unemployed people participating in training specified in the skills development matrix in terms of the Generic scorecard under the 2013 Amended Codes and this uncertainty will most likely continue up until such time when the Department of Trade and Industries (DTI) publishes the long awaited Verification Manual.

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SKILLS DEVELOPMENT AND THE UNCERTAINTY REGARDING THE RECOGNITION OF BLACK UNEMPLOYED

28 SEPTEMBER 2017

Strata-g Labour Solutions advises employers on yesterday’s COSATU mass protest action and what employers need to know.

27 September 2017 marked a day deemed as the largest post-apartheid protest in South Africa. In a bid to “shut down” the country, COSATU and SACP embarked on protest action highlighting a call for President Jacob Zuma’s resignation and an end to corruption and state capture.

Although the protest action itself was compliant with the terms of Section 77 of the Labour Relations Act 66 of 1995 (“LRA”), as amended, and was therefore protected i.e. legal, the burning question is how should Employers react to protest action of such magnitude and do businesses have any recourse in respect of employees who took part from a labour law perspective?

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COSATU MASS PROTEST ACTION AND WHAT EMPLOYERS NEED TO KNOW

20 SEPTEMBER 2017

VICARIOUS LIABILITY: EMPLOYERS LIABLE FOR EMPLOYEES’ ACTIONS

Vicarious liability is a legal term used to describe a situation where the law holds one person liable for the wrongful act or omission of another person, even though it wasn’t that person’s fault.

For example: while on duty, the employee driving the vehicle belonging to the employer collides with a vehicle belonging to a third party and the driver and or passenger in the third party’s vehicle is seriously injured. The accident has been proven to be the fault of the employee. You, as the employer, are liable. This is the principle of “vicarious liability”

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VICARIOUS LIABILITY- EMPLOYERS LIABLE FOR EMPLOYEES’ ACTIONS