Headline News

HEADLINE NEWS

25 March 2022

Please find attached hereto Ruling issued by the CCMA in the Arbitration between Koliswa Sheburi and Railway Safety Regulator, case number GATW15200-21 for your attention.

The Respondent in this matter, Railway Safety Rgulator, raised a point in limine, complaining about documents contained in the applicant’s bundle of documents and insisted that the Commissioner presiding over the matter should make a ruling in this regard. The applicant’s bundle of documents contained two confidential offers of employment made to certain employees. These documents disclosed the salary levels linked to the respective employees’ job profiles. The Respondent submitted that this constituted a contravention of the Protection of Personal Information Act, 2013 (hereinafter referred to as the “POPI Act”). The respondent consequently sought an order in terms of which the applicant was ordered to remove the two confidential offers of employment from her bundle of documents.

For more on the subject see original post by Louis Podbielski https://www.linkedin.com/posts/louispodbielski_sheburi-v-railway-safety-reg-2022-gatw-activity-6912612744089268225-pCKL/?utm_source=linkedin_share&utm_medium=ios_app

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Judgement

12 March 2022

It is trite that an arbitration hearing is a de novo proceeding and parties are not limited to evidence they led at the time of the hearing. The task of the arbitrator is to determine whether the employer acted fairly in dismissing the employee.

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Judgement

 

 

Article by Elna Schütz featuring Advocate and legal director Tertius Wessels – 31 January 2022

‘Side hustle’ has become an ubiquitous term for earning an income in addition to one’s primary job, with this trend significantly more appealing for employees than their employers. But, experts explain, if done with support and transparency, taking on more can benefit everyone in unexpected ways.’

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26 January 2022

“The Department of Employment and Labour (DEL) has identified a gap in the general understanding and knowledge of services and programmes provided by the Department, more especially since the matter on employment of foreign nationals in South Africa featured extensively in the media recently and the Department under the leadership of Minister Thulas Nxesi felt it important to put into context the role of the Department of Employment and Labour and the existing legislative framework.”

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7 December 2021

Please find attached hereto a copy of the judgement in the matter of Multiquip (Pty) Ltd and Another v National Union of Metalworkers of South Africa D 477-20 (17 August 2021) for your attention.

We wish to share the judgment with you given that there have been a number of instances over the preceding weeks where Employers have instructed officials of employers’ organisations to raise an objection to Trade Unions representing disgruntled employees at the CCMA or other Dispute Resolution Forums. Unfortunately, these objections are often not entertained by Commissioners regardless of the fact that the Employer does not recognise the particular Trade Union in the workplace and/or the Trade Unions Constitution does not allow the Trade Union to recruit employees in a particular sector or industry.

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Judgement

NEWS HEADLINE

26 August 2021

Unauthorised absenteeism and absconsion by employees are possibly the most common and prominent types of misconduct faced by employers. Often employers find themselves uncertain as to the course of action to take in these cases.

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25 August 2021

Many times, employers are faced with claims of constructive dismissal after an employee has resigned and struggle to define exactly what constitutes same and how to go about defending themselves against such allegations. Recently, the CCMA was asked once again to deal with this issue in the matter of Dubazane / Ison BPO (Pty) Ltd [2021] 7 BALR 735 (CCMA).

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30 June 2021

It is hard to believe that the first 6 months of 2021 have come and gone and that in less than 24 hours it will be the 01st of July 2021, the last day of the first half of the year.

The implementation of the Protection of Personal Information Act (POPIA) 4 of 2013, with effect from 1 July 2021, brings a new dawn to how many of us conduct some of our business processes, including how we collect personal information, the reasons for its collection, how it is collected and what is it used for.

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GUIDELINES FOR MANDATORY COVID-19 VACCINATION IN THE WORKPLACE

12 June 2021

With South Africa’s vaccination drive well underway, the focus has now turned to large companies who have been ramping up their efforts to vaccinate their employees – and may be considering mandatory vaccination policies.

Some employers have already started administering the jab to vulnerable employees and employees living with co-morbidities.

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25 May 2021

Ever wondered what to do in circumstances where an employee steadfastly refuses to remove a light blue hairpin in contravention of a dress code that requires hairpins to be navy blue or black? It’s simple really, you charge the employee with insubordination (failure or refusal to comply with a reasonable and lawful instruction) and you dismiss said employee.

At the first blush the decision to dismiss the employee, who was employed as a cashier in a supermarket, seems harsh. However, when regard is had to all the facts, it becomes apparent why the CCMA upheld the dismissal, and the Labour Court dismissed the review application in the matter of Xolelwa Ntantiso v CCMA and Others Case no: C 527/2018 (13 November 2020) per Lagrange J. See attached.

Case study – Xolelwa Ntantiso

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19 May 2021

Did you know that Sexual harassment has been described by our courts as “the most heinous misconduct that plagues a workplace –
not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed”.

Therefore, it is of the utmost importance that as an employer you must be cognisant of your duty to take action against culprits of sexual harassment.

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19 March 2021

Employers can discipline employees who flout COVID-19 regulations outside of work, which could even result in dismissals says Justin Hattingh, Senior Legal Advisor at Strata-g Labour Solutions.

“While employers are obligated under the Occupational Health and Safety (OSH) Act to provide a safe and healthy working environment, staff members must also comply to those regulations and ensure that they assist the employer in keeping everyone at the workplace safe and healthy,” explains Hattingh.

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14 December 2020

Please find attached an important Labour Appeal Court Judgement that appears to resolved the question as to whether an employer has the right to discipline an employee in circumstances where an employer has resigned.

In this matter Labour Court was confronted with the issue of whether an employee can by a letter of resignation immediately end his/her relationship with his/her employer irrespective of the contractual or statutory provisions which provide for notice to be given before termination can take effect.

Labour Appeal Court Judgement

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4 April 2022

Over the preceding months we have received numerous enquiries regarding an Employer’s right to withhold an employee’s retirement fund pending the finalization of an action instituted by the Employer against the Employee. The High court of South Africa, Gauteng Division, Pretoria, recently dealt with such a matter in the case between Jacobs v Telkom.

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Judgement

14 March 2022

The Labour Court of South Africa, Johannesburg, has handed down a judgment electronically by circulation to legal representatives in the matter between Solidarity obo Members and Johette van Rensburg v Ernest Lowe a division of Hudago Trading (Pty) Ltd Case reference J49/22 on 14 March 2022, confirming that the employer’s intention to implement a policy that would require employees to produce proof of vaccination or Covid-19 test results on a weekly basis at the employees’ cost does not constitute a mandatory vaccination policy and is not unlawful.

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Judgement

22 February 2022

A recent Arbitration Award (the Award) issued by the Commission for Conciliation Mediation and Arbitration in the matter between United Chemical Indnustries Mining Electrical State Health and Allied Workers Unions obo Maelane and Savuka Managed Solutions, found that the dismissal of a Shop Steward, who failed to ensure that Covid-19 protocols were complied with, was substantively fair. This despite the fact that the employer had failed to consult the Trade Union about its intention to institute disciplinary action against the said Shop Steward.

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Judgement

26 January 2022

With many South African employers having elected to introduce mandatory vaccinations in the workplace it should come as no surprise to many of us that someone was bound to get dismissed for refusing to get vaccinated. The question on everybody’s mind is whether or not such a dismissal will be considered fair in the eyes of our law. Whilst the fairness of a dismissal will always depend on the merits of each case specifically, the CCMA has recently dealt with a matter wherein an employer dismissed an employee who refused to be vaccinated.

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Judgement

24 November 2021

“The refusal to obey the instruction has to be seen in a serious light. The employee challenged the authority of the employer and this can have the consequence of hamstringing the employer’s enforcement of discipline in the workplace.”

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28 September 2021

When it comes to dealing with suspension it is important to note that a suspension pending disciplinary action must always be fair and the employee is entitled to challenge a suspension that he/she feels is unfair. Suspension may amount to an unfair labour practice if not executed in accordance with the principles of fairness and in terms of the employer’s codes and procedures.

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11 October 2021

From the contents of the attached judgment you will note that NHLANHLA CHRISTOPHER MAKHOBA (herein after referred to as the applicant) was employed by the CLOVER S.A. (PTY) LTD (herein after referred to as the respondent) as a general worker with ten years’ service. Following a report by a member of the public that the applicant had posted a comment on the Facebook page of Eyewitness News that all white people must be killed, he was charged with two offences relating, firstly, to the making of a racist comment on social media and secondly, to thereby acting contrary to the interests of the company. At the disciplinary enquiry, the applicant denied that he had posted the Facebook comment ‘Whites mz b all killed’, and he pleaded that his Facebook page had been hacked. He was found guilty of both charges and dismissed in May 2017. He referred a dispute to the CCMA in terms of section 191 of the Labour Relations Act alleging unfair dismissal.

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Judgement

17 August 2021

It is almost frightening to realise that within the next 136 days we will be entering a new calendar year and that for many us all the upheaval, chaos, violence and disruption that occurred will soon be a thing of the past. One thing is certain – these are extraordinary times and many employers have had to face new employment challenges.

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Judgement

8 July 2021

There are generally two types of suspension that exists. The first type of suspension is generally known as precautionary suspension or a ‘holding operation’ where the suspension is not designed to impose discipline, but is rather for reasons of good administration. Precautionary suspension normally applies in circumstances where an employer has reasonable grounds to believe that an employee is involved in very serious misconduct and more so, that the continuous presence of the employee at the workplace is detrimental to the maintenance or good order in the workplace and/or to the finalisation of any investigation.

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17 June 2021

By now many of us have to understand that Numsa is a Saftu affiliated union, and you may be aware from recent media reports, that Saftu is preparing for a day of action in the form of a Provincial strike in protest, among other things, the poor administration of TERS monies within Department of Employment and Labour and the soaring levels of unemployment and government corruption.

The Labour Relations Act 66 of 1995 (LRA) permits registered trade unions or federations such as SAFTU to undertake protected protest action to promote the social and economic interests of workers.

Therefore, please find attached hereto notice for your attention. The notice serves to inform employers that the anticipated protest action is protected in terms of section 77 and as a result, all workers who elect to participate in same may not be subjected to disciplinary action for any absences related to this protest action.

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26 May 2021

By now many of us have come to realise that workplace safety is of paramount importance. This is especially so given the ongoing Covid-19 pandemic which has caused a sustained increase in both COVID-19 infections and deaths over the past few weeks, with the added threat of new variants which are more transmissible.

Unfortunately, the vaccine roll-out and response from our national government has been ponderously slow and badly organised and it is unlikely that any of us will have access to same anytime soon. Accordingly, our best defence at this stage is continued vigilance and adherence to non-pharmaceutical interventions such as handwashing, social-distancing and wearing masks when out in public and compliance with Covid-19 policies in the workplace. Now is not the time to get lazy or complacent. It is not enough for a workplace to have “these fancy COVID-19 policies, procedures and protocols in place” if these are not being strictly enforced.

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22 April 2021

In the age of pandemics and other socio-economic upheavals, relying on a single income may prove risky, especially as joblessness continues to rise, with Statistics South Africa reporting an unemployment rate of 32.5%, the highest it has been since the survey was initiated in 2008. But before getting that side hustle off the ground, employees must know what their employment contract and work policy states about supplementing their income with another job or personal business, as they find themselves facing disciplinary action, says Tertius Wessels, Advocate and Legal Director of Strata-g Labour Solutions.

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8 April 2021

In this matter the Applicant (INTER-WASTE (PTY) LTD) was seeking to enforce a restraint of trade agreement against Mr Vian Smith, a former employee of the Applicant, who had taken up employment with TMS Group Industrial Services (Pty) Ltd (TMS), on the basis that Smith bound himself to a non-compete clause.

There is no dispute that Smith signed a restraint of trade agreement containing a non-competing clause. The dispute is whether TMS is a competitor of the Applicant or not.

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8 March 2021

With the announcement that South Africa will move from Adjusted Alert Level 3 Lockdown to Alert Level 1 effective 01 March 2021, more employers are gearing up to resume operations, during South Africa’s second wave of COVID-19 infections, which appears to be significantly more widespread than that which prevailed during early to mid-2020. Fortunately, for many of us, global efforts have successfully developed both expedited means of testing for the virus and, more recently, vaccines.

Strata-g Labour Solutions’s team of experts have recently expressed their views on the controversial question: Do employers have a right to request vaccination certificates of their employees, once the vaccine becomes available nationally?

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2 October 2020

Please find attached hereto the Consolidated COVID-19 Direction replaces the COVID-19 Direction on Health and Safety in the Workplace issued by the aforesaid Minister on 01 October 2020.

Please note that the Consolidated COVID-19 Direction seeks to ensure that the measures taken by employers under the Occupational Health and Safety Act, 1993 (“OHSA”) are consistent with the overall national strategies and policies to minimise the spread of the Coronavirus (COVID-19). The Consolidated COVID-19 Direction also stipulates measures that must be taken by employers in order to protect the health and safety of workers and members of the public who enter their workplaces or who are exposed to their working activities. The workplaces to which the Consolidated COVID-19 Direction apply are set out in the attached Government Gazette.

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13 December 2017

Is the failure by 72 JSE-listed companies to comply with the provisions laid out in the Employment Equity Act a blatant lack of respect, as Deputy Minister of Labour Nkosi Phathekile Holomisa posits, or is it more complex than that? Legislation focuses on two requirements when establishing whether a business is required to report on employment equity or not: the first is the number of heads in the business (50 employees or more) and the second is annual turnover thresholds, which differ from one sector to the next and are stipulated in Schedule 4 of the EE Act.

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22 November 2017

The recent postponement of suspended Eskom executive Matshela Koko’s disciplinary hearing highlights just how costly and drawn out disciplinary procedures can be when lawyers become involved in the process.

It also begs the question: Under what circumstances does the employee have the right to engage legal representation in respect of a disciplinary hearing?

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17 November 2017

On 17 November 2017 the Department of Labour published the National Minimum Wage Bill that is set to introduce a minimum wage of R20 for each ordinary hour worked from May 2018.

Businesses need to familiarise themselves with the National Minimum Wage Bill and the proposed amendments to the Basic Conditions of Employment Act and the Labour Relations Act to ensure they understand how these legislative changes will impact their business in the new year.

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26 September 2017

The resignation of KPMG’s CEO and other senior executive and board members, following suspected dubious dealings with the Gupta family and South African Revenue Services (SARS), raises questions around employee and employer rights.

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15 September 2017

Two sisters, Jennifer Da Mata and Roxanne Goncalves of Strata-g Labour Solutions, have harnessed their mutual strengths to build a labour law and human resource consultancy that handles all aspects of the employment chain for clients, from dealing with recruitment and dismissal issues, to ensuring compliance with BBBEE, transformation and other regulatory requirements.

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17 December 2017

JSE listed firms could be snubbing EE codes. Is the failure by 72 JSE listed companies to comply with the provisions laid out in the Employment Equity Act EE a blatant lack of respect, as Deputy Minister of Labour iNkosi Phathekile Holomisa posits, or is it more complex than that?”

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7 December 2017

The purpose of these legislative amendments is to address the challenges of labour market stability and wage inequality. The amendments provide a stronger environment for collective bargaining and wage negotiations and ensure that due processes are followed when strikes or lockouts take place. 2 hours ago Pixabay On Friday, November 17, the Department of Labour published the National Minimum Wage Bill that is set to introduce a minimum wage of R20 for each ordinary hour worked from May 2018. Businesses need to familiarise themselves with the National Minimum Wage Bill and the proposed amendments to the Basic Conditions of Employment Act and the Labour Relations Act to ensure they understand how these legislative changes will impact their business in the new year.

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27 November 2017

The recent postponement of suspended Eskom executive Matshela Koko’s disciplinary hearing highlights how costly and drawn out disciplinary procedures can be when lawyers become involved in the process. It also raises the following question: under what circumstances does an employee have the right to engage legal representation in respect of a disciplinary hearing?

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4 October 2017

The recent publicity around senior government officials and members of senior management, and their alleged behaviour or conduct outside of the ‘workplace’,  raises a number of questions for employers: to what extent does a person’s conduct outside the organisation or company impact on the employer and does the organisation or employer have recourse against the individual?

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14 August 2017

With racism at St Johns College and Windsor House Academy under the spotlight last week, Strata-G Labour Solutions advises companies, including schools, to make sure they adopt appropriate strategies and implement relevant policies in order to identify and eliminate racism in the workplace.

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2017

By Roxanne Da Mata Gonçalves, Director of Strata-G Labour Solutions, which partners with its clients to take care of every labour related facet of their businesses, from industrial relations and recruitment, to human resources, empowerment equity and payroll.

Many organisations are struggling to come to terms with transformation under the new Broad Based Black Economic Empowerment (BBBEE) codes. The reality is, BBBEE is here to stay and the sooner companies embrace the idea, the better.

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