“…an employer may not require or permit an employee to work … overtime except in accordance with an agreement” (Basic Conditions of Employment Act)

All employers and employees need to know of a recent Labour Court judgment holding that an instruction to work overtime in the absence of an agreement is unlawful.

A lapsed overtime agreement makes dismissal unfair

• A company’s Site Manager instructed four employees to work overtime to meet production targets but they refused, citing safety issues on the day in question.
• They were charged with gross insubordination and subsequently dismissed.
• They took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) to dispute the dismissals, and when the CCMA found that the dismissals were substantively fair, they applied to the Labour Court for review.
• Although the CCMA commissioner had found that there was a work agreement in place that bound the employees to work overtime as and when necessary, the Labour Court held that the overtime clause in their contracts of employment had already lapsed by the time the instruction was issued.
• Moreover, on the facts there was no evidence to support any inference of an “implied or tacit” agreement to work overtime on this particular day. Said the Court: “…an agreement [to work overtime] could be inferred only when an employee had actually worked overtime without prior consent.”
• The Court’s conclusion – without an agreement to work overtime on the day in question, the instruction was unlawful, and the dismissal accordingly unfair.
• A further finding by the Court, although of practical relevance only to one employee whose agreement to work overtime remained valid, is nevertheless well worth noting: “The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employer’s lawful authority over him or her.” In this case “There was no evidence that the applicant employees acted willfully and repeatedly … Obviously, a progressive disciplinary sanction in a form of a warning or final written warning could have availed.” (Emphasis added)
• The employer was ordered to reinstate the employees, retrospectively and with full back pay.

The law

Agreement is essential: The BCEA (Basic Conditions of Employment Act) regulates overtime and provides that overtime is voluntary: “…an employer may not require or permit an employee to work … overtime except in accordance with an agreement”. It is up to you as employer to prove that a valid agreement is in place – so whilst a verbal agreement is perfectly fine in practice most of the time, a written agreement will prove invaluable in the event of any uncertainty or dispute.

When overtime agreements lapse: The BCEA also specifies that an overtime agreement “concluded … with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.”

The bottom line

Make sure you have valid overtime agreements in place and renew them if they lapse. As always with our labour laws remember that the complexity and the downsides of getting it wrong make specific professional advice an easy decision.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Employers and employees need to keep an eye on the annual increases in both the National Minimum Wage and the Earnings Threshold, summarised below for your convenience. Both are effective from 1 March 2023.

The National Minimum Wage increase

The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased by 9.6% from R23-19 to R25-42. Workers who have concluded learnership agreements in terms of the Skills Development Act are entitled to a sliding scale of allowances.

Domestic workers

Domestic workers were brought into line with the NMW in 2022, and assuming a work month of 21 days x 8 hours per day, R25-42 per hour equates to R4,270-56 per month. The Living Wage calculator will help you check whether or not you are actually paying your domestic worker enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up to date).

The Earnings Threshold Increase

The annual earnings threshold above which employees lose some of the protections of the Basic Conditions of Employment Act has been increased by 7.6% from R224,080-48 p.a. (R18,673-87 p.m.) to R241,110-59 p.a. (R20,092-55 p.m.).

“Earnings” (for this purpose only) means “the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration”.

Some employees enjoy only limited BCEA protection even if they earn below the threshold – notably any “senior managerial employee” (“an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”), any “sales staff who travel to the premises of customers and who regulate their own hours of work” and any “employees who work less than 24 hours a month for an employer”. Take specific advice for details.

The threshold also impacts on some of the protections provided in the Labour Relations Act –

• Employees earning less than the threshold, if contracted to a client for more than three months through a temporary employment service (“labour broker”) are deemed to be employed by the client unless they are actually performing a temporary service.
• Fixed-term employees earning below the threshold are deemed to be employed indefinitely after three months unless the employer has a justifiable reason for fixing the term of the contract.

Turning to the Employment Equity Act, employees earning over the threshold can only refer unfair discrimination disputes (other than disputes based on sexual harassment) to the Commission for Conciliation, Mediation and Arbitration (CCMA) with the consent of all parties. Otherwise, they must go to the Labour Court for arbitration.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“Oh, what a tangled web we weave when first we practice to deceive” (Sir Walter Scott, quoted in the judgment below)

It’s a sad fact of life in today’s business world that as an employer you must remain constantly on guard against the dangers of “CV fraud”.

First prize of course must always be prevention – verify all claimed qualifications and work experience, accept nothing on trust. But if you do get caught out, our courts will help you if they can, as witnessed by a recent High Court case.

The “graduate” who forged a B.Sc degree

• An employee was found to have been employed, and to have been accepted into his employer’s graduate development programme, on the basis of forged qualifications in the form of a forged B.Sc degree (in Chemical Engineering) and a falsified academic record.
• His fraud was only discovered after some 8 years, and when he resigned (after disciplinary proceedings against him began) his employer reclaimed the +R2.2m it had paid him over the years.
• The employee objected, claiming that he had provided value to his employer in his work. The Court was unimpressed, no doubt at least in part because of the employer’s evidence that, as it was a bulk supplier of water to millions of people, having an unqualified person working for it (performing calculations on the type and quantity of chemicals to be added to the water) “could potentially have incredibly serious consequences for the general populace.”

“Fraud unravels everything” – goodbye R2.2m and a pension fund

Held the Court (quoting from a well-known English case on fraud): “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” (Emphasis added)

The employee, said the Court, “set out to deceive and wove his web accordingly. He achieved his goal. He has now become entangled in a web that he alone devised and cannot now be heard to complain of the consequences that must follow.”

Not only must he now repay every cent of the R2,203,565.04 he earned through his fraud, plus interest, but his pension benefits (which are normally secure from creditor claims) can be used for the purpose. To rub a final dose of salt into his wounds, he must also pay legal costs on the punitive attorney and client scale – no doubt the Court’s findings as to his untruthfulness as a witness contributing to that result.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Before you close up for the year, remember that if you are a “designated” employer, your Employment Equity Act (“EEA”) Report is due on 15 January 2023.

Failure to comply carries substantial penalties so don’t miss this deadline.

You are likely to be a designated employer if either –

• You have 50 or more employees, or
  
• Your annual turnover equals or exceeds your particular industry’s threshold. See the table below for details.

(Source – Schedule 4 to the Employment Equity Act)

There’s good news for some SMEs in the pipeline

Good news for smaller businesses drowning in red tape it that it seems likely that the threshold test will fall away at the end of September 2023. If you have less than 50 employees, that would let you off the reporting hook from October next year. But for now, if you are in the turnover net, meet the 15 January deadline.

Bear in mind also that all employers, designated or not, must comply with the EEA’s strict prohibitions against unfair discrimination.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“For many, many people, I’m a firm believer that 60 is the new 50.” (Carolyn Aldwin, director of Oregon State University’s Center for Healthy Aging Research)

As even the youngest Boomers (the generation born between 1946 and 1964) approach the “Big Sixty”, an increasing number of employees will be thinking about whether or not they want to retire. And an increasing number of employers will be wondering whether to ask them to stay on or to retire them (and if so, when).

Bear in mind that our law does not recognise any concept of a general “normal/standard retirement age” and that you need to tread carefully here because a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminates against an employee, directly or indirectly, on any arbitrary ground such as age.

Our courts look upon automatically unfair dismissals with particular disfavour, and a guilty employer can expect harsh penalties.

When is age-related dismissal fair?

As an employer you can avoid a finding of automatically unfair dismissal if you prove –

1. That there is a clause in your employment contract specifying an agreed retirement date, or
2. That there is a “normal or agreed retirement age” for employees “employed in the capacity of the employee concerned”, and
3. That the dismissal is based on age and not, for example, a disguised retrenchment or dismissal for some other reason.

What if your employee wants to stay on after retirement date?

“Sixty really is the new Fifty” says at least one recent scientific study, and it certainly is the case that many employees want to carry on working long after 60 or 65. Sometimes economic necessity is the motivation, sometimes a need to carry on being useful, sometimes just a reluctance to “retire and go fishing”.

Equally, many employers are reluctant to lose the experience, loyalty and talent of senior staff and will happily accept a request to stay on.

However, a recent Labour Appeal Court case confirms the need for all concerned to tread carefully in such a situation –

Dismissed 9 months after reaching 60

• An employee turned 60 but carried on working and being paid as normal. No mention was made of the fact that he had reached the agreed retirement age set out in his employment contract.
• Nine months later however, his employer told him that his services would now terminate as he had reached the agreed retirement age.
• He disputed this as an automatically unfair dismissal, arguing in the Labour Appeal Court that a new employment contract or “tacit” (implied) contract had come into effect, and that this contract extended his employment indefinitely or at least to 65. Alternatively, he said, his employer had waived (relinquished) the retirement clause.
• The Court disagreed, holding that the employment contract and its agreed retirement date had continued uninterrupted, with both employer and employee having a right to terminate employment at any time thereafter.
• Per the Court: “The focus is not so much on when the employee reached his or her retirement date, but rather that the employee has already reached or passed the normal or agreed retirement age.” There was also nothing in the conduct of the parties to suggest they had entered into a new tacit contract or that the employer had waived its rights.
• The employee’s enforced retirement stands.

An action list for employers

• Avoid a situation where your employee can no longer do the job but there is no agreed retirement date. That would leave you trying to prove a valid ground for dismissal – incapacity or incompetence perhaps. Not easily done, and traumatic for you both.
• Moreover, it’s not always easy to prove what a “normal” or “standard practice” retirement age is for your industry and circumstances. Much safer to have a specific retirement clause in all your employment contracts.
• Don’t try to unilaterally impose retirement clauses on employees if their existing contracts don’t already have them – this is a matter for negotiation and agreement.
• Diarise each employee’s retirement date and before that date rolls around, either make it clear to the employee that their employment is about to end automatically or put in place a new employment contract.

Notes for employees

• If you work beyond an agreed or normal retirement age, the harsh reality is that you are, as the Labour Court has put it before “working on borrowed time”.
• Without a written agreement, setting out clearly when your new retirement date is, you have no guarantee that your post-retirement employment is in any way secure or legally protected.

As always with employment law matters there are complexities, grey areas and substantial downsides to getting it wrong, so seek specific professional advice!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“The evil in this case is the wearing of high heels as opposed to flat shoes. It is a case that pits sartorial elegance against health and safety at the workplace” (Extract from judgment below)

Employers have a general duty to ensure health and safety in the workplace. But as a recent Labour Court case illustrates, policies dealing with these issues must be correctly drawn, implemented and enforced.

A mine’s “no high heels” policy challenged

• A mining operation introduced a health and safety policy, applicable to all employees, requiring that: “Appropriate shoes must be worn at all times. Slippers, high heels and open shoes are not allowed”. A later clarification provided that “Only flat shoes may be worn at work…”. After a risk assessment around the issue of wearing high heels two years later, a further clarification was issued: “Employees are thus hereby instructed to wear only flat shoes when entering the mine premises and safety boots to be worn where applicable … Non-compliance with regards to this instruction(s) may lead to disciplinary action.”
• A Human Resources Controller was observed on two occasions to be wearing high heels, and was instructed to comply with the policy, despite her pleas to be allowed to retain a “feminine look” at work.
• She complied, but vented her dissatisfaction to several colleagues, asking them to come together to express dissatisfaction with the policy. She also unsuccessfully asked a trade union official to come to her aid.
• She was dismissed after being found guilty at a disciplinary enquiry of gross insubordination and incitement. After unsuccessfully challenging her dismissal in the CCMA (Commission for Conciliation Mediation and Arbitration), she approached the Labour Court.

The Labour Court’s decision, and lessons from its judgment

The Labour Court overturned the dismissal and ordered the mine to retrospectively re-instate the employee.

Whilst this decision stemmed from the Court’s conclusion that the employer had failed on the facts to prove either insubordination or incitement on the part of the employee, its judgment highlighted a number of factors that all employers should bear in mind –

• Policies must be justified, lawful, clearly drafted, and unambiguous. Part of the employer’s problem here was its initial failure to support the policy with a risk assessment, and to unambiguously specify which parts of the mining premises it applied to.
• Policies must be enforced consistently.
• Terms and conditions of employment cannot be changed unilaterally.
• Employees have a right of freedom of expression, and a right to lawfully question (and express their views about) workplace policies.
• Insubordination can manifest as a refusal to obey a reasonable and lawful demand, or as a challenge to or defiance of an employer’s authority, but only where that authority is lawful and/or reasonable.
• “Whether misconduct amounts to insubordination depends on a number of factors, including the willfulness of the employee’s defiance, the reasonableness of the order that was defied and the actions of the employer prior to the purported act of defiance.”
• In this case there was no evidence of a deliberate and serious challenge to or defiance of the policy. The employee had complied with the clarified policy after being instructed to do so, albeit grudgingly. It would only have been insubordination, said the Court, if she had said she would refuse to comply in future.
• A charge of incitement in the workplace requires proof of incitement of other employees to act unlawfully, for example to take part in an unprotected strike – which the employer in this case had failed to prove.

None of the above detracts in any way from your duty as an employer to implement policies for the protection of workplace health and safety – but do it correctly!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“… the [employer], in light of its dangerous environment, is entitled to discipline and dismiss any employee who uses cannabis or is under the influence whilst at work in contravention of its policy. Unfortunately, the Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies.” (Extract from judgment below)

The Constitutional Court’s limited legalisation of personal cannabis use in private seems to have lulled some employees into a false sense of security when it comes to their employer’s right to restrict their cannabis use. A recent Labour Court decision illustrates.

Not stoned on duty, but tested positive

An employee was, in her off-duty hours, a regular user of CBD oil and a smoker of cannabis.

After repeatedly testing positive for the drug, she was dismissed. She approached the Labour Court claiming both unfair discrimination and automatically unfair dismissal. Her failure to win reinstatement on either ground is a warning to all employees in her position.

Here are the facts the Court considered, and its decision –

• Her position was a “typical office or desk position” which was not a safety sensitive job in that she was neither required to operate heavy machinery nor drive any of her employer’s vehicles. However, she worked on premises with “highly dangerous operations”.
• She had thirteen years of service and an unblemished disciplinary record.
• She had been prescribed medication for pain and anxiety, but due to the medication’s side effects she switched to daily use of CBD oil, plus she smoked cannabis recreationally to assist with her insomnia and anxiety. This, she said, also improved her bodily health, outlook, and spirituality.
• As part of its safety rules, and because of the “highly dangerous operations in its premises”, her employer has a zero-tolerance “Alcohol and Substance Policy”, of which she was aware, enforced by workplace testing.
• When she tested positive for cannabis use, she was told that she was unfit to continue working and directed to immediately leave the premises, then placed on a 7-day “cleaning up process” in terms of which the test would be repeated on a weekly basis until she was cleared by testing negative.
• She was not impaired or suspected of being impaired in the performance of her duties nor was she performing any duties for which the use of cannabis would be said to be a risk to her own safety or that of her fellow employees. Nor was she in possession or suspected of being in possession of cannabis whilst at work.
• Nevertheless, when she continued to use cannabis, and therefore continued to fail her drug tests, she was dismissed after a disciplinary hearing at which she pleaded guilty to testing positive for cannabis. In mitigation she had said that she was never “stoned” or intoxicated or impaired at work, and that her use of cannabis was medicinal.
• Unlike alcohol, cannabis can be detected in the body for a few days after occasional consumption, up to weeks for heavy users and up to months for chronic users. Also, unlike alcohol, one cannot determine a level of impairment based on test results.
• But – and these were critical findings by the Court – “Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature” and “… the fact that one is not impaired to perform duties does not in itself absolve that employee from misconduct in terms of the employer’s policy.”
• The employee continually tested positive, and would continue to test positive, because of her repeated and daily consumption of cannabis. Her performance had not been affected by her actions, but the employer’s issue was not one of performance but one of misconduct “and her performance is an irrelevant factor.”
• There was no differentiation in the employer’s treatment of this employee and other employees, and in any event any such differentiation did not amount to impermissible discrimination as it was not arbitrary but “rational and served a legitimate purpose”.
• She had only raised the question of her medical issues when caught out and as an “afterthought” but had had a responsibility “to properly approach the [employer] in order to raise her medical circumstances and for the [employer] to properly afford her situation an ideal and practical resolution.” In any event, said the Court, there was no “persuasive evidence” of her medical condition.
• A final written warning would have served no purpose as she refused to stop consuming the cannabis.
• Her dismissal therefore stands.

Lessons for employers

• Have in place a clear and reasonable policy on intoxicating substances. As the Court put it in general “everyone is entitled to use cannabis in their own space and for recreational purposes” so you are going to have to justify any policy with an effect to the contrary. The “highly dangerous operations” in this employer’s premises no doubt played a significant part in the Court’s acceptance of this employer’s zero-tolerance approach to infringements of its safety rules, so tailor your policy to your particular business operations.
• React reasonably to any request for a relaxation of your policy, don’t discriminate in any unjustifiable way between employees breaching it, and be sure to apply the appropriate sanction in cases of breach.
• Most importantly, as always take specific legal advice – our employment laws are complex, and the penalties for breaching them severe.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“Signs of the “Great Resignation” are rippling across South Africa” (Business Insider report, 22 April 2022)

The global pandemic-induced “Great Resignation” trend is upon us, and both employers and employees need to be aware of how our law views the whole question of employee resignation.

A recent Labour Court decision gives some valuable guidance –

The sick employee who tried to withdraw his resignation after a “miraculous” recovery

• The Deputy Financial Officer of a municipality under administration tendered in writing his immediate resignation from his post on the grounds of ill health.
• Two weeks later he sought to withdraw his resignation stating “It gives me pleasure that my health as prompted resignation has miraculously improved that I am normal to endure the temperature in the area”.
• The municipality told him his withdrawal of resignation was not accepted and he applied to the Labour Court for an order reinstating him to his position with full salary and benefits.
• Many of the facts were in dispute, but critically the Court found that the employee “has by word shown a clear and unambiguous intention not to go on with his contract of employment”, that he did not act in the heat of the moment, that his failure to report for duty thereafter “confirms his subjective intention to quit”, that he communicated his resignation to the correct municipal official who had not objected to it and could be presumed to have accepted it, and that his request to withdraw his resignation was indeed refused by his employer.

The Court held accordingly that the employee’s resignation stood. In doing so, it answered a variety of important questions as follows –

The law on resignation: 7 critical questions answered

1. What is resignation and how does it affect the contract of employment?
   “Resignation as a voluntary act is a unilateral act that ends the employment relationship.” (The “voluntary” part is important here! In this case the employee “…consciously elected to resign. He must be allowed to remain in that freely chosen path”.).
2. When does resignation take effect?
   “Resignation takes effect once communicated to an employer…”.
3. Who must resignation be communicated to?
   When it comes to a corporate employer “In my view anyone superior to an employee is sufficient. He or she represents an employer one way or another.” (No doubt some contracts of employment will specify exactly how and to whom a resignation must be communicated).
4. Must an employer accept a resignation to make it effective?
   No, “…there is no legal requirement that the resignation must be accepted.”
5. What if the employee must serve a notice period?
   This makes no difference; the resignation is effective once communicated: “…This is so even if an employee is contractually obligated to serve a notice period and does not serve it.”
6. Can an employee unilaterally withdraw a resignation?
   No, “… it is incapable of being withdrawn unless an employer consents thereto”.
7. If an employer does accept a withdrawal of resignation, is that a reinstatement?
   No, “…where an employee withdraws a resignation, all it means is that such an employee is seeking to be rehired or re-employed … A contract of employment can only be brought back from the ashes in the same way it is conceived; namely offer and acceptance.” (The lesson for employers here is to be crystal clear in rejecting a request to withdraw a resignation, as anything less might be construed as re-employment).

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“The criterion that harassment involves unwanted conduct distinguishes acts of harassment from acceptable conduct in the workplace” (extract from the Code, emphasis added)

With effect from 18 March 2022, a new “Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace” came into effect. Every employer and employee should know about it.

The new Code has replaced the old “Code of Good Practice for the Handling of Sexual Harassment Cases in the Workplace”. It is much wider in every way possible because it “… is intended to address the prevention, elimination, and management of all forms of harassment that pervade the workplace” (extract from the Code, emphasis added).

Of necessity, what is laid out below is no more than an overview of an extremely complex topic so in any doubt seek professional advice specific to your circumstances!

In a nutshell…

There’s a lot more detail below, but in essence –

• The Code applies to all employers, employees, and workplaces (office-based or remote)
• Its reach is extremely wide in prohibiting any and all forms of workplace harassment
• Employers have a raft of duties to comply with in relation to assessing workplace risks of harassment, and in formulating and applying procedures to prevent and deal with it
• Failure to comply risks substantial liability.

Who does the Code apply to?

In a nutshell, it applies to pretty much everyone involved in any business with one or more employees, the Code making it clear to start with that all employers and employees, in both the formal and informal sectors, are included.

Specifically mentioned as possible perpetrators and victims of harassment, in addition to employers and employees, are owners, managers, supervisors, job seekers and job applicants, persons in training including interns, apprentices and persons on learnerships, volunteers, clients and customers, suppliers, contractors, and (the very wide catch-all at the end) “others having dealings with a business”.

When and where does it apply?

It applies virtually everywhere, including remote and out-of-office situations – “in any situation in which the employee is working, or which is related to their work”, including the workplace itself (widely defined), “work-related trips, travel, training, events, or social activities”, “work-related communications, including those enabled by information and communication technologies and internet based platforms”, employer provided accommodation and transport, and “in the case of employees who work virtually from their homes, or any place other than the employer’s premises, the location where they are working constitutes the workplace.”

What must you as an employer do about it?

In broad terms you must –

• Take proactive and remedial steps to prevent all forms of harassment in the workplace
• Conduct an assessment of the risk of harassment that employees are exposed to while performing their duties (emphasized as this is probably the best place to start!)
• Apply an attitude of zero tolerance towards harassment
• Create and maintain a working environment in which the dignity of employees is respected
• Create and maintain a climate in the workplace in which employees who raise complaints about harassment will not feel that their grievances are ignored or trivialized, or fear reprisals
• Adopt a harassment policy, which should take cognisance of and be guided by the provisions of the Code
• Develop clear procedures to deal with harassment, which should enable the resolution of problems in a gender sensitive, confidential, efficient, and effective manner.

If you don’t tick all of those boxes, you risk substantial liability not only under our employment laws but also under the general principles of “vicarious liability” in the form of liability for any employee misconduct causing harm to others.

What is “harassment”?

The following extract from the Code gives an idea of just how broad the general definitions of harassment are – 

What is “sexual harassment”?

Again, the definitions here are extremely wide and include any form of unwanted conduct of a sexual nature including physical, verbal, or nonverbal conduct, whether expressed directly or indirectly.

Specific examples that seem to have attracted the most media attention include sexual innuendos, comments with sexual overtones, sex related jokes, whistling of a sexual nature, sexually explicit texts, and “unwelcome gestures”, but there are many more.

What about “racial, ethnic or social origin harassment”?

Again, the definitions are wide here, including the concept that “Racial harassment is unwanted conduct which can be persistent or a single incident that is harmful, demeaning, humiliating or creates a hostile or intimidating environment” and illustrated by this extract from the Code –

Bottom line: If you think something could possibly be classified as “workplace harassment”, it almost certainly will be!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“She failed to disclose these obviously material activities to her employer and was therefore manifestly acting in violation of her duty of good faith to her employer.” (Extract from judgment below)

“Moonlighting” is the practice of employees boosting their monthly income with a “side-job” or “side-business”. It has been a feature of working relationships since the dawn of history, but now the pandemic lockdowns and the shift to the “gig economy” (where independent contractors and freelancers are paid for short-term assignments) have seen dramatic increases in the number of employees forced to supplement their incomes in this way. Some stats suggest that now almost half of all employees have a second source of income, and both they and their employers need to take note of a recent Labour Appeal Court decision confirming the dismissal of an employee for failing to disclose her side-business to her employer.

Selling biltong secretly

• A sales agent for a meat products company was found to be running her own “formal business” (with at least one full-time employee and from rented premises) selling biltong over weekends. She had not only kept that fact from her employer but had positively stated in a letter to it that she had no source of income other than her salary and maintenance from her divorce.
• Found guilty of dishonesty because she failed to advise her employer of her side-line business, she was dismissed.
• She referred an unfair dismissal dispute to the CCMA (Commission for Conciliation, Mediation and Arbitration) and, long story short, she ended up before the Labour Appeal Court which confirmed her dismissal, finding that –
  • “[She] failed to disclose an essential and important fact that she was running ‘a side-line business’ in the market for the sale of meat products, albeit that they might not have been identical to the meat products which were sold by [her employer]”.   
  • “That she was able to discharge her duties to [her employer]” does not take her case any further.”   
  • The CCMA’s conclusion that “employees act in bad faith if conflict of interest may arise even though no real competition actually results” was, held the Court, unassailable.
  • “She was employed as a sales representative in a business that was involved in the sale of meat products. As a side-line business, she conducted a business which involved the sale of biltong, namely a meat product. She failed to disclose these obviously material activities to her employer and was therefore manifestly acting in violation of her duty of good faith to her employer.” (Emphasis supplied).

A note for employers…

Avoid any doubt in your workplace with a clear, balanced and fair policy on the question of employees holding second jobs or running “side-hustles” and include a clause to that effect in your employment contracts. Professional advice is vital given the stakes in any labour law dispute.

And a note for employees…

Many employers will be very understanding if you are totally honest with them about any moonlighting you get involved in, whether it’s through economic necessity or just a desire to pursue something you are passionate about.

Disclose everything in writing (keep proof!), whether or not you will be impinging on your working hours. You risk dismissal even if there is “no real competition” with your main job, and even if your work performance is not impacted – it’s the “bad faith” element of secreting your side business that will sink your case.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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