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 2022.

The National Minimum Wage increase

The National Minimum Wage (NMW) for each ordinary hour worked has been increased by 6.9% from R21,69 to R23.19.

To quote from Minister of Employment and Labour Thulas Nxesi’s announcement –

“As in previous years, the adjustment provides exceptions for several worker groups, including:

• Farmworkers are entitled to a minimum wage of R23.19 per hour.
• Domestic workers are entitled to a minimum wage of R23.19 per hour.
• Workers employed on an expanded public works programme are entitled to a minimum wage of R12.75 per hour.
• Workers who have concluded learnership agreements contemplated in section 17 of the Skills Development Act, 1998 (Act No 97 of 1998), are entitled to allowances contained in schedule 2.

It is illegal and unfair labour practice for an employer to unilaterally change working hours or other employment conditions in order to implement the NMW. The NMW is the amount payable for ordinary hours of work and excludes payment of allowances (such as transportation, tools, food, or lodging), payments in kind (board or lodging), tips, bonuses, and gifts.”

Domestic workers

For the first time domestic workers have been brought into line with the NMW via a 21.5% increase from 2021’s R19.09 per hour. Assuming a work month of 21 days x 8 hours per day, R23.19 per hour equates to R3,895.92 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”.

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 from R211,596.30 p.a. to R224,080.48 p.a.

“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”.

To quote again from the Minister’s announcement: “These sections protect vulnerable employees by regulating, among other things, working hours, overtime,… compressed schedules, working time, average hours of work, meals interval, daily and weekly rest periods, pay for work on Sundays, night work, and work on public holidays.”

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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“This is dishonest conduct of a kind which clearly negatively impairs upon a relationship of trust between an employer and employee.” (Extract from judgment below)

An all-too-common complaint in workplaces comes from employers who notice a sudden surge in employees calling in sick on the day of a major sports fixture, or perhaps just on a “good beach day”.

So as an employer what can you do about it if your “sick” employee is captured on TV enthusiastically waving a patriotic flag in the stands at a test match, or is recognised by another beachgoer frolicking in the waves at Muizenberg?

A recent Labour Appeal Court decision dealt with a case where the employee’s dishonesty about a “sick day” had clearly led to a breakdown in trust, which goes to the heart of any employer/employee relationship.

The sick leave claim, the rugby match and the dismissal

• A “relatively senior” supermarket employee advised a manager that he had been taken ill and would not be attending work that day.
• In fact it turned out that he had travelled to watch a rugby match in support of his local team. On his return to work he made no secret of this fact, openly telling his manager about it.
• He was found guilty at a disciplinary enquiry on a charge of gross misconduct, and dismissed.
• He had on previous occasions been disciplined for absence and for late arrival at work and although most of the warnings had expired, one was still in force at the date of his disciplinary hearing.
• The employee took the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration) which ordered his reinstatement, but eventually the matter ended up before the Labour Appeal Court, which, having noted that the case turned on the answer to the question “When does attendance at a rugby match trigger a dismissal from employment?”, confirmed the dismissal as being “clearly the appropriate sanction”.
• The employer was justified, said the Court, in adopting the approach that the employee “was required to act with integrity and abide by the [employer]’s policies, procedures and codes”. The CCMA’s order of reinstatement was a “… lenient approach to dishonesty [which] cannot be countenanced.” As a mark of how seriously the Court viewed the employee’s dishonest conduct, it very nearly granted a costs order against him (which is rare, and reserved for cases of “egregious conduct”).
• Critically, the Court found that the employer/employee relationship of trust had broken down as a result of the employee’s “initial unreliability and now dishonest conduct”. “He was palpably dishonest, even on his own version. He expected to get away with the enjoyment of attendance at a rugby match on the basis of claiming sick leave and then enjoying the benefits thereof. This is dishonest conduct of a kind which clearly negatively impairs upon a relationship of trust between an employer and employee.” (Emphasis supplied).

The bottom line for employers is to act firmly in cases of employee dishonesty (as always, the intricacies of this area of law are such that specialist professional advice is essential) and for employees this case is yet another warning shot from our courts to the effect that dishonesty affecting the employer/employee trust relationship could well cost you your job.

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 seriousness and gravity of offences involving racism and racial hatred cannot be over-emphasised. Employers are under a duty to provide a safe working environment and to protect all employees from harm, whether physical or emotional, whether they are black or white. An employer can be held liable for failure to take any action against its employees who are guilty of such conduct. South Africa is a country plagued by a history of racism and violence and social media plays a significant role in the incitement of racial hatred and violence. The power of such posts on social media inciting racial hatred cannot be undermined.” (Extract from judgment below)

Here’s yet another warning from our courts to tread with extreme care when posting anything online. Social media channels (particularly it seems Facebook) are favourite arenas for insults, threats and incitements to hatred and violence.

“Think before you post” is the only safe option here. Misusing social media unlawfully is dangerous for anyone and at any time – a damages claim for defamation or a subpoena from the Equality Court could be the least of an offender’s worries.

When it comes to employees, the spectre of summary dismissal will always loom large if any form of racism or other serious misconduct is involved.

A recent Labour Court decision illustrates –

Off duty, but still dismissed for a racist Facebook comment

• A “general worker” with 10 years’ service in a high-profile company with a multicultural workforce posted a comment on the Eyewitness News Facebook page that all white people must be killed (“Whites mz b all killed”) and was charged at a disciplinary enquiry with two offences –
  • Making a racist comment on social media, and
  • Thereby acting contrary to the interests of his employer.
• At the disciplinary enquiry, the employee denied that he had posted the Facebook comment and claimed that his Facebook page had been hacked.
• Found guilty on both charges, he referred a dispute to the CCMA (Commission for Conciliation, Mediation and Arbitration), alleging unfair dismissal. It was at this stage that he changed his story to admit that he had in fact made the offending Facebook post.
• The commissioner ultimately upheld the dismissal as both substantively and procedurally fair, a decision taken on review by the employee to the Labour Court.
• The Labour Court dismissed the review application, finding firstly that even if the employer had had no disciplinary code in place “any employee would know that it was an extremely serious offence for a member of one race group to call for the killing of all members of another race group.” In any event, the employee had in fact been trained in the employer’s disciplinary code, and that prescribed dismissal for the offence of racism.
• The employer had a duty to protect its employees from racist misconduct and had “consistently charged people for offences involving racism. The last employee that had been dismissed for racism was charged and dismissed for using the “K” word.”
• It was irrelevant that the employee had made the Facebook post outside his workplace and outside his working hours as “it is the attitude that persists which, when on duty, affects the employment relationship.”
• He had also exposed his employer to a risk of reputational damage and had acted contrary to its interests as per the second disciplinary charge.
• The employee’s dismissal stands.

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 should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds” (Ministry of Employment and Labour)

As the Covid-19 pandemic continues to wreak havoc around the world, an increasing number of businesses find themselves walking a tightrope between their obligations to, on the one hand, both protect the public and provide a safe and healthy workplace, and on the other hand to respect the individual constitutional rights of employees to make their own choices in matters of bodily and psychological integrity, religion, belief and opinion.

These deeply conflicting rights and obligations have left employers asking themselves questions like: “Must we insist on our employees having the vaccination to protect their colleagues, our visitors, our customers and the public at large?” and “If so, can we actually force unwilling employees to get jabbed or are we in for unfair practice or wrongful dismissal claims?”

The Minister’s “Amended Consolidated Direction”

On 11 June 2021 the Minister of Employment and Labour issued an “Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces” under the National Disaster Regulations in an attempt to address those questions.

The Direction is long, detailed and complex, setting out a host of “minimum measure” requirements for workplace safety during the pandemic, so specific professional advice is essential here. But in a nutshell there is now an official guideline for employers wanting to make vaccination compulsory or partially compulsory. At a minimum, comply with all these specified obligations –

1. Undertake a risk assessment
   This risk assessment (supposed to have been completed by 2 July 2021) was to determine (a) whether vaccinations were to be made mandatory considering the “operational requirements of the workplace” and if so (b) who was to be compulsorily vaccinated, taking into account the risk of transmission to employees through their work and their risk for severe Covid-19 disease or death due to their age or co-morbidities.In assessing whether or not your particular workplace needs a mandatory vaccination policy, include factors such as the ongoing requirement to enable employees to work from home where possible (still applicable even under Adjusted Level 1), the nature of the work in question, whether adequate ventilation is possible, whether adequate social distancing measures are possible and so on – the list is endless.As regards that 2 July deadline, it seems likely that many (perhaps most) employers missed it. If you are in that boat, what should you do now? There is no clear guidance on that, but the consensus of expert opinion seems to be that you should still comply, as soon as possible.
2. Develop or adjust a vaccination and protective measures plan
   Based on the risk assessment, this plan must outline both what protective measures you have in place, and what vaccination measures you intend to implement.
3. Consult on the risk assessment and plan
   Consultation must be with any representative trade union and any health and safety committee or representative. We should discuss under this heading also the questions of communication, education and training. We all know that together with some rational and valid concerns, there is an avalanche of fake news around Covid-19 and vaccinations. Inform your employees fully of their rights, help them to distinguish fact from fake, address their individual fears and concerns, explain the benefits of your plan to everyone, and strive for consensus.
4. Make the plan available
   The plan must be available to an Occupational Health and Safety Act inspector and to the person/s listed in point 3 above.
5. Other requirements and factors
   No list of this nature can ever be comprehensive but consider factors such as paid time off and transport to vaccination sites, sick leave for employees who suffer side-effects, counselling for “vaccine hesitant” employees and the like. There are also defined procedures to be followed when employees raise medical or ethical objections to being vaccinated (for example, the employer may need to try to find an alternative position in the business for such an employee).And of course every workplace will be different, which leads us to …

The bottom line

There is talk of workplace vaccination being officially made compulsory either across the board or in certain sectors, whilst media reports suggest that an increasing number of large employers are already implementing compulsory vaccination policies on the basis of legal advice received. There is also much speculation that our courts will support dismissal of employees who refuse vaccination in appropriate cases, and there is even a report of a High Court Judge insisting on either proofs of vaccination or negative PCR tests “for the general well-being of all parties in attendance at court”.

Bear in mind however that every situation, every workplace, and every employee will be unique – and with the high stakes involved, tread with extreme care and only after taking 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.

© LawDotNews

“Retirement is for people who don’t like their jobs” (Paul McCartney)

Many employees reaching “retirement age” (often set at 60 or 65) are not ready to retire. Perhaps they need to carry on earning an income, often they are fit and healthy and want to remain engaged and productive. Increasingly, both factors are at play.

Regardless, the concepts of an aging workforce and “65 is the new 50” are here to stay, and employers and employees alike need to tackle the changing realities that come with them.

Agree a retirement date upfront!

Firstly, do not as an employer make the mistake of not specifying an agreed retirement age in your contracts of employment. Without such a clause you run the risk of being found guilty of “age discrimination” if in due course you force an unwilling employee to retire. As that is a class of “automatically unfair” dismissal, you are likely to pay dearly for your mistake.

Let’s consider however a recent case where an agreed retirement age was in place, but it came and went unnoticed (or perhaps noticed but ignored) …

The engineer who carried on as usual after 65

• An engineer’s 1985 written contract of employment provided that his employment would terminate at the end of the month when he reached the age of 65 unless the parties agreed otherwise in writing. It also had a standard “no-variation-except-in-writing” clause.
• He turned 65 in 2013 but continued working as normal, uninterruptedly, until he accepted a voluntary retrenchment in 2017. He had shortly before retrenchment been offered a two-year fixed-term contract which provided that he would not receive “any discharge or severance benefits” upon its termination – wisely, as it turned out, he had rejected that offer.
• When the business thereafter offered all employees a voluntary retrenchment package of one week’s compensation for every year of service, the engineer accepted. So far so good, but the problem arose at payout time. He was offered only 4 weeks’ compensation and was told that he had officially retired at 65 so only his post-retirement pay was taken into account in calculating his severance package.
• The employee was having none of that and demanded a recalculation based on his service since 1985. He took the dispute to the CCMA (Commission for Conciliation, Mediation and Arbitration), claiming for 29 weeks as the balance due after he had accepted the 4 weeks as part payment only. The CCMA awarded him the full amount (R1,010,625) and the Labour Appeal Court in due course confirmed the award.

Learning from the employer’s R1m lesson

The Court based its decision on its conclusion that although the 1985 employment contract had terminated when the employee had turned 65, he had carried on working “seamlessly” thereafter.

In terms of the Basic Conditions of Employment Act, length of service must take into account previous employment with the same employer if the break between the periods of employment is less than one year. In this case, said the Court, there was no break at all and the engineer’s “employment with the respondent was ‘continuous’, in the true sense of that term.”

The employer’s mistake seems therefore to have been that it had done nothing when its employee approached the agreed retirement age. The reason for it doing nothing is unclear, but one wonders how many employers ever bother to diarise all retirement dates with a note to take action before they arrive.

Regardless, through its lack of action the employer effectively landed itself with an open-ended contract of employment (i.e. with no agreed retirement or termination date). If it had been more alert it could perhaps have simply said “remember you retire soon, enjoy your retirement” – that would not have been a retrenchment, and no severance pay would have been payable. Perhaps it could then have safely offered the employee a new fixed-term contract for a specified period (a “clean break” would have been essential i.e. no untaken leave or the like carried forward from the original contract). Perhaps it could even have structured an agreement to extend the contract on terms that would have made it unnecessary to give the employee a retrenchment package at all. Every case will be different and there are grey areas in the applicable law, so specific professional advice is essential here.

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.

© LawDotNews

Employee looting and/or violence can take place during strike action or it can occur during non-workplace incidents such as the recent looting and public disorder sprees. In both cases employers need to take action, but with care.

Addressing firstly the “strike” scenario, employees have strongly entrenched rights when it comes to taking industrial action. But strikers who indulge in, or associate themselves with, any form of violence or intimidation can expect little sympathy from our courts.

Two Labour Appeal Court decisions illustrate –

Dismissed for associating with a crowd assault

“Within a labour law context the requisite intention exists where it is proved that an employee intended that misconduct would result or must have foreseen the possibility that it would occur and yet, despite this, actively associated himself or herself reckless as to whether such misconduct would ensue” (extract from the judgment below)

First up is the case of 148 workers dismissed for misconduct during a strike.

• When the employer’s Human Resources Manager left his office to engage with the strikers they surrounded and seriously assaulted him. He was pushed out of a glass window, had rocks thrown at him and was punched and kicked while he lay on the ground. He feared for his life and was left with injuries to his face, arm, and body. Video footage showed striking employees celebrating and chanting after the assault was over.
• At a disciplinary hearing 12 employees were found to have participated directly in the assault, and the others were found to have participated by association and thus to have acted with “common purpose”. All were summarily dismissed.
• The Labour Court confirmed all 148 dismissals. 41 of the employees appealed to the Labour Appeal Court on the grounds that common purpose in the assault had not been proved because there was no evidence that they had been on the scene of the assault, nor that they had been aware of the assault, had intended to make common cause with it, or that they had performed an act of association with it.
• Quoting from the Constitutional Court that “it was unnecessary to place each employee on the scene to prove common purpose which can be established by inferential reasoning having regard to the conduct of the workers before, during and after the incident of violence” and commenting that “…the inference drawn that all employees were involved in or associated themselves with the assault became the most probable and plausible”, the Court held that the 41 had been present at the scene and had associated themselves with the actions of the group before, during or after the misconduct. The Court accordingly confirmed the dismissals.

Dismissed for carrying sticks, piping, and a sjambok in a picket line

“The constitutionally protected right to strike does not encompass a right to carry dangerous weapons on a picket line which, by their nature, not only expose others to the very real risk of injury, but also serve to threaten and intimidate” (extract from the judgment below)

The second case saw a group of employees dismissed after taking part in a national strike which turned violent.

• Three of the employees each carried a stick while picketing with a group of other strikers, another carried a length of PVC pipe and the fifth carried both a stick and a sjambok. Others in the crowd carried a golf club and an axe respectively. At least two people sustained severe injuries during the course of the strike.
• The employees were charged with “brandishing or wielding of dangerous weapons during [the] strike” and following disciplinary hearings they were dismissed.
• When the matter eventually came before the Labour Appeal Court, it upheld the dismissals, finding that the strikers were aware of a workplace picketing rule barring weapons of any kind being “carried or wielded” by picketers and that they “knew or could reasonably have been expected to have known that disciplinary action could result if the picketing rules were breached.”
• The end result is yet another warning to employees that whilst their right to strike is strongly protected by constitutional principles, strikes and picketing become unlawful if they are not peaceful, non-violent, and free of dangerous weapons.

What about off-duty employees who took part in the recent public looting?

Published images and videos of the recent orgy of public looting and destruction show criminal behaviour so blatant and shameless that many of the perpetrators will no doubt be readily identifiable by their employers.

You may feel justified in proceeding immediately against any of your employees so implicated, even though they happened to be off-duty and nowhere near your workplace at the time. After all, who wants a looter or arsonist working for them?

But whilst our laws may well entitle you to take action against some or all of such employees, that will generally be so only when their provable criminality is in some way linked to, and relevant to, their employment. The law in this regard is unfortunately too complex, and too full of grey areas, for any advice beyond the general observation that you should certainly consider immediate disciplinary action, with the strong caution that specific professional advice is essential beforehand.

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 stance adopted by the Municipality at the trial demonstrated a disturbing lack of appreciation of its legal obligation to have provided E[….] with a safe working environment.” (Extract from judgment below)

Our courts do not tolerate any form of sexual assault or harassment in the workplace and a recent High Court decision confirms the danger to both employees of engaging in this form of misconduct, and to employers of failing to address it.

The sexual assault and the damages claim

• In 2009 a “vibrant 23 year old woman” employed by a municipality as a clerk was sexually assaulted by her immediate superior, a Corporate Services Manager.
• The assault was described as follows: “As she looked up he bent down with his head over hers and, putting his mouth over hers, attempted to force his tongue into her mouth.She clenched her teeth and tried unsuccessfully to push him away.After a minute or so he desisted, leaving her with a mouthful of his saliva.She immediately wiped the saliva off her mouth. He then also tried to wipe her mouth with his hand but she knocked it away.” Importantly, the Court noted that that this was in no way just an attempt to “kiss” the victim; it was very far removed from a “kiss” and was instead a sexual assault.
• The victim subsequently resigned from her job “after her employer had made her employment intolerable compelling her to resign” and then for a variety of reasons decided to sue for damages for unlawful dismissal in the High Court rather than claim for unfair constructive dismissal via the CCMA (Commission for Conciliation, Mediation and Arbitration). Both avenues are available to any victim of such misconduct, and many factors will determine the best choice in any particular case.
• Thus began what proved to be the start of a long and gruelling saga, leading firstly to a 2016 High Court finding in the victim’s favour that her employer and the manager were both liable to her for “such damages as she may be able to prove she has suffered in consequence of the sexual assault upon her”.
• Back to the High Court went the victim to prove her damages. She had, held the Court after hearing all the evidence, been “deeply traumatized, she suffered from post traumatic stress disorder requiring extensive psychotherapy and “the course of the life of the deeply traumatised 34 year old woman who testified at the trial on quantum in late July 2020 had been much changed as a result of the assault.”

The employer’s “supine approach of bovine resignation”

• The Court hauled the employer over the coals as it “took no responsibility for its conduct and denied liability at the trial. At no stage did it apologize for the tremendous suffering it had caused E[…]. … It exhausted every avenue open to it to avoid having to compensate E[…] for the wrong which she had suffered at its hands.”
• Although the manager was found guilty of gross misconduct at a disciplinary enquiry, his sanction was a two-week suspension without pay rather than dismissal, an outcome described by the Court as “mindboggling given the character of the offence, the circumstance that [the manager] had abused his position of authority by assaulting a female subordinate who was in a particularly vulnerable position in that she was a temporary employee at the time that the assault occurred. Furthermore [the manager] did not demonstrate any remorse, remaining defiant to the end. Where an employee has been found guilty of gross misconduct and fails to take the first step towards rehabilitation by acknowledging his wrongdoing, there can be little scope for corrective or progressive discipline.” (Also relevant – the manager had received a suspended sentence of imprisonment after the victim laid charges against him, and he was already on a final written warning for theft from his employer.)
• The employer’s “approach of washing its hands of the matter, á la Pontius Pilate, fell woefully short of what was required of an employer in the circumstances. The Municipality abdicated its responsibilities to protect E[…] and adopted a supine approach of bovine resignation” (emphasis supplied).
• There was much more from the Court in the same vein – the employer had, “through protracted litigation, made her wait so long for justice, thereby adding to her suffering …On a human level, the defence which was put up by the Municipality was devoid of introspection, humility or compassion … it had lengthened and intensified the trauma suffered by E[…] … there was no, as it were, corporate repentance … The Municipality was quick to defend the litigation and slow to listen to E[…]”.

The end result – the employer and the manager must “jointly and severally” pay to the victim a total of R3,998,955.02 in damages for loss of earnings, psychological/medical expenses, and general damages. They are also in for (doubtless substantial) legal costs, including the costs of four expert witnesses.

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.

© LawDotNews

“The facts of this case are indeed extraordinary. They are indicative of the need for more to be done at both the workplace and in our communities, in ensuring that employers, employees, and the general populace are sensitised to the realities of this pandemic, and to further reinforce the obligations of employers and employees in the face of, or event of an exposure to COVID-19” (extract from judgment below)

The COVID-19 pandemic has exposed both employers and their employees to a whole new slew of risks. One of the more serious is the danger of infected employees coming to work and by doing so endangering the lives of not just their colleagues, but also customers and anyone else unfortunate enough to come into contact with them.

A new Labour Court decision confirms that our courts will not hesitate to act decisively where employees disregard health and safety protocols.

The butcher who tested positive but went to work

• An Assistant Butchery Manager employed by a national butchery business, despite testing positive for COVID-19, reported for duty for three days, walked around the workplace without a mask, and even hugged a colleague with a heart condition.
• He was charged with gross misconduct and negligence, firstly for not disclosing that he had been tested for COVID-19 and was awaiting the results, and thereafter for endangering the lives of his colleagues by failing, after receiving a positive test result, to self-isolate, to follow the workplace health and safety protocols, and to adhere to social distancing.
• The employer had constantly reminded all employees of its COVID-19 policies, procedures, rules, and protocols. Moreover the employee was a member of his workplace’s “Coronavirus Site Committee” responsible for putting up posters throughout the workplace, informing all employees what and what not to do in the event of exposure or even if they suspected that they may have been exposed to COVID-19, and the symptoms they must look out for.
• Dismissed, the employee approached the CCMA (Commission for Conciliation, Mediation and Arbitration) which although finding him guilty held that the dismissal was substantively unfair and that the employee should instead be reinstated retrospectively, without back-pay, and a final written warning placed on his record.
• On review to the Labour Court it upheld the dismissal as being substantively fair, commenting that “[his] conduct was not only irresponsible and reckless, but was also inconsiderate and nonchalant in the extreme. He had ignored all health and safety warnings, advice, protocols, policies and procedures put in place at the workplace related to COVID-19, of which he was fairly aware of given his status not only as a manager but also part of the ‘Coronavirus Site Committee’.”
• He had acted dishonestly, had caused “monumental harm, anxiety and strain” to his co-employees and their immediate families, as well as to his employer’s operations, he had shown no contrition, and his conduct had rendered unsustainable the trust and working relationship with both his employer and his fellow employees.

The Court’s warning to employers

The Court also rapped the employer over the knuckles for allowing business to continue as usual in a deadly pandemic without social distancing, allowing “mask-less ‘huggers’” to walk around on the shop floor, despite “having all of these fancy COVID-19 policies, procedures and protocols in place”.

As the Court put it “…the facts of this case in my view clearly compels the need for serious introspection by the applicant and all other employers in the light of the above questions posed, in regard to whether existing health and safety measures and protocols in place are being taken seriously by everyone affected. It is one thing to have all the health and safety protocols in place and on paper. These are however meaningless if no one, including employers, takes them seriously.” (Emphasis supplied).

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.

© LawDotNews

Employees in South Africa enjoy strong protections under a raft of laws such as the Basic Conditions of Employment Act (BCEA), the Labour Relations Act (LRA) and the Employment Equity Act (EEA).

Failure to comply with these Acts, whilst perhaps tempting to many employers struggling financially in these hard times, is not only unfair to employees (many of whom are in equally dire straits), but also an extremely risky business from a legal perspective. The CCMA (Commission for Conciliation, Mediation and Arbitration) and our courts take a dim view of employers flouting these laws, and offenders will pay heavily for doing so.

So, what is a “casual worker”?

A commonly held and dangerous myth is that you don’t have to worry about these laws when employing “casual workers”. That is perhaps a hangover from the pre-1997 definition of “casual labourers” as those who worked for 3 days or less per week. 

However, that definition fell away with amendments to the BCEA in 1997, since when we have had no defined concept of “casual worker” or “casual employee”. What counts now is that employees who work for you for less than 24 hours per month are excluded from core BCEA protections – those relating to contracts, hours of work, overtime pay, leave, sick leave, termination and so on (the prohibitions against employment of children and forced labour still apply). 

There is nothing to stop you using terms like “casual employee” or “casual worker” but bear in mind that they have no legal effect – what counts is that anyone working for you for 24 hours or more per month, no matter how you refer to them, falls under the BCEA’s provisions.

What about independent contractors and excluded employees?

Turning now to anyone working for you for more than 24 hours per month (outside the strict ambit of this article perhaps but relevant for context and comparison) –

• The BCEA’s protections are limited in the cases of certain employees, such as those earning over a specified threshold, senior management, some sales staff, employees of smaller businesses, specific employees like National Defence Force members and so on, with Ministerial “sectoral determinations” also applying in some sectors.
• “Independent contractors” have no employee protections (they are explicitly excluded from the definitions of “employee” in the BCEA, the LRA and the EEA), with the vital qualification that they must genuinely be non-employees. As far as labour law considerations are concerned, there are presumptions to overcome, criteria to consider and requirements to meet, and you cannot get away with disguising an employer/employee relationship as an employer/contractor one (no matter what your contract says). A related but separate issue is that SARS will hold you liable to withhold PAYE unless the relationship meets its own specified criteria. This is a complex subject on its own, with many grey areas and pitfalls, so specific professional advice is essential in any doubt.

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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