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Filter: Labour law
Unfair dismissal? Your rights during business rescue

06 June 2024,  Lesley Mokgoro

Facing dismissal after years of service can be tough, but what happens when the company goes into business rescue before... you can challenge the decision? Find out if you can still refer your unfair dismissal dispute to the CCMA in our latest article.

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Minister issues Code of Practice to manage Covid-19 in the workplace

16 March 2022,  Tata Mokwayi

On the 15th of March 2022, the Minister of Employment and Labour, Thulas Nxesi, issued a Code of Practice to... manage the exposure to SARS-CoV-2, also known as Covid-19 in the workplace. The code shall take effect on the date of the lapsing of the Declaration of a National State of Disaster declared under GN313 of 15 March 2020, and extended in terms of section 27(2) of the Disaster Management Act, 2002 (Act No.57 of 2002). 

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Blog
What if the employee working from home, does not work at home?

08 February 2022

If your business has employees working from home, you may be concerned about whether your employees are in fact working... their required hours, or if they may instead be “stealing time” from your business. Should companies merely accept this as the new world of work due to the pandemic, or can a company act against such employees?

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Article
Increase in minimum wages for farm and domestic workers

20 May 2021

I’m a farm owner and was wondering what the new minimum wages announced by Government will mean for my farming... business? 

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Article
What does the new minimum earnings threshold mean for employers?

16 April 2021,  Tata Mokwayi

I noted recent media reports that indicated that a new minimum earnings threshold for employees has been promulgated. Is this... correct and what does this mean for business owners?

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Article
Dismissed for refusing the Covid-19 vaccine - is that fair?

17 March 2021

With the words “I have been vaccinated!” being common among our healthcare workers these days, it is natural to start... wondering whether your job may be at risk for refusing to receive the COVID-19 vaccine. Right now there is no law in South Africa that obligates an employee to receive the Covid-19 vaccine.  In fact, there is no legislation which regulates the circumstances under which an employer may force an employee to undergo medical treatment as opposed to medical testing. Medical testing is defined by the Employment Equity Act to mean a test, inquiry or other means designed to establish an employee’s medical condition.Medical testing of an employee is prohibited unless legislation permits or requires the testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. The Constitution of the Republic of South Africa guarantees our rights to bodily integrity, privacy and security over one’s body. However, it is common knowledge that our constitutional rights are not absolute and may be limited under certain circumstances. An employee may refuse to take the vaccination over concerns of possible adverse reaction to the vaccine, religious and cultural beliefs and the employer may not unfairly discriminate against an employee who refuses to receive the Covid-19 vaccine for whatever personal and/or medical reasons.  Notwithstanding the above, an employee may be compelled to receive the Covid-19 vaccine where failure to do so may create a greater risk to the public health. This may be in instances where the employee’s duties call for heightened levels of contact with the general public. In this regard, employees must be aware that employers are obligated to provide and maintain a safety working environment in so far as it is reasonably practicable to do so.  Consent remains essential in matters involving the personal affairs of the employee, and the employee must have given informed consent before any medical treatment is administered. An employer who therefore dismisses an employee for refusing to receive the Covid-19 vaccination may be under a strenuous duty to prove that the instruction to the employee was a reasonable one and that the failure by the employee to follow such an instruction constituted insubordination which warranted the dismissal. The consequence of this act of insubordination needs to be that it creates a greater risk to the health of other employees and renders it nearly impossible for the employer to maintain a safe working environment as required by law.While there is a lacuna in our employment legislation for the compulsory administration of the Covid-19 vaccine, such treatment may be permitted by the employment conditions, social policy or the inherent requirements of a job. This requires that a thorough balancing of the employer’s obligations in terms of maintaining safety in the working place must be done against the conflicting rights of the employees not to be unfairly discriminated against or victimised for exercising their rights in terms of the applicable legislation.In this, instance if the Employer can prove on the specific facts of this case that dismissal was an appropriate and fair sanction, then the dismissal would be fair. Generally though, discipline ought to be imposed in a corrective and progressive manner which means that dismissal would only be reserved for the gravest of offences.

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Can my employee refuse to come to work because of Covid-19?

16 March 2021

Although we are nearing the tail-end of the Covid-pandemic, I still have a number of my employees that are refusing... to come to work because of Covid-19. I’ve tolerated them being at home, but my problem is that there is very little work they can do from home, yet I have to pay them. Can I force them to come back?

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Article
Effects of Covid-19: Public Servants’ annual salary increments dealt a blow

08 January 2021

I have seen media reports that the State will not be obligated to pay employees their annual salary increments this... year due to the scarce financial resources of the State. Is this correct?   

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Article
Constitutional Court rules domestic workers can claim for injuries at work

25 November 2020

2020 has truly been a year which will be cast in the books of history and with the many challenges... we have had to overcome this year, the Constitutional Court could not have chosen a better time to give South African Domestic Workers some early Christmas cheer. The decision of the Constitutional Court in Mahlangu v Minister of Labour and Others handed down last week, has confirmed the declaration of constitutional invalidity of Section 1 (xix)(v)of the Compensation for Occupational Injuries and Diseases Act (COIDA) in so far as it excludes domestic workers from the definition of an “employee” who are entitled to claim under the COIDA if they suffer injuries or diseases in the course of their employment.Ms Mahlangu had been employed as a domestic worker in a private home. On one unfortunate day, Ms Mahlangu drowned in the swimming pool of her employer whilst executing her duties. Ms Mahlangu’s daughter, who had been financially dependent on her mother at the time of her death, approached the Department of Employment and Labour to establish the possibility of being compensated for her mother’s death. She was informed that she could neither receive any compensation nor any unemployment insurance benefits from COIDA as her mother was not covered by COIDA. She launched an application in the High Court of South Africa, Gauteng Division, to have section 1(xix)(v) of COIDA declared unconstitutional to the extent that it excludes domestic workers employed in private households from the definition of “employee”. The High Court declared the impugned section invalid to the extent that it excluded domestic workers from claiming under COIDA. The Constitutional Court was therefore confronted with an application to confirm the declaration of constitutional invalidity. The Court noted that COIDA does not offer protection for our domestic workers even with it being 26 years into our democracy.  The Court further noted that the domestic workers who are mostly black women experience discrimination on a number of intersecting grounds – which intensifies the burden on this disadvantaged group.  The main aspiration of our Constitution is to achieve substantive equality and rectify the imbalances of the past.  The right to equality is the right that Sections 1 (xix)(v) of COIDA has violated, a which violation serves no legitimate purpose. As a result thereof, the Court confirmed the constitutional invalidity.  The Court further held that such an order is to have immediate and retrospective effect from 27 April 1994. This ground-breaking judgment essentially entails that domestic workers can now claim for injuries sustained or diseases contracted during the course of their employment and may do so even for occupational injuries that were sustained as far back as 27 April 1994. The Court hopes that this judgment will contribute towards repairing the pain and indignity suffered by domestic workers, and have a transformative effect in other areas of their lives.

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Service provider or labour broker?

10 November 2020,  Tata Mokwayi

Our company wants to help out one of our oldest clients by allowing some of our labourers to work for... a few months for the client on a project at the client’s site. The client has had to layoff staff during Covid-19 and we would temporarily help him out with our labourers. We would continue to pay our staff with the client paying us a service fee for the labourers and other support services. Our human resources manager however is concerned that we could be seen as labour brokers should we move forward with this arrangement. Would this be the case?

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Leave and work from home in the time of Covid-19

08 October 2020

South Africa’s move to Alert Level 1 came to the aid of most employees who were compelled to stay at... home due to the lockdown regulations promulgated to reduce the spread of Covid-19.  However, despite the easing of the lockdown restrictions,  there are employees who may still be unable to return to work due to their higher risk of complications or death should they contract Covid-19. The nature of the work performed by these employees may further prevent or limit them from working remotely. In instances where an employee is unable to return to work due to an existing medical condition and their high risk of exposure to Covid-19 in the workplace cannot be limited, the employer may place such an employee on annual leave. From the inception of lockdown, the Department of Employment and Labour encouraged employers to allow and/or enable their employees to work from home and to continue paying their employees without placing them on annual leave, subject to the condition that the employer is able to do so. An employer who offers his/her employees the minimum annual leave days as prescribed in the Basic Condition of Employment Act (“BCEA”) may not require or permit such employees to tender their services to the employer during days on which they are on annual leave. An employee may therefore be placed on annual leave under circumstances where they are unable to return to work and are further unable to work from home due to the nature of the work performed by that employee. Employees who are able to work remotely must not be treated less favourably than those who are able to return to the workplace and must be considered as if they are tendering their services physically in the premises of the employer. Employers may also consider placing employees who are unable to return to work on special leave if their annual leave days have been exhausted. However, the period of special leave cannot be limitless and employees must be aware of the fact that this may, in future and subject to the period of their absence from the workplace, result in retrenchments and/or dismissal due to incapacity. It is important to note that the BCEA currently makes no provision for the handling of annual leave during a national state of disaster or periods of extensive lockdowns which prevent employees from reporting for work. Therefore, employers are advised to implement changes and/or decisions taking into consideration our existing employment law legislation and through consultations with their employees.

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An employer’s liability should an employee contract Covid-19 in the workplace

06 July 2020

The unfortunate reality is that most of our country’s population will become infected with Covid-19 and with the gradual lifting... of the lockdown restrictions, such risk arises rapidly as more businesses are being permitted to resume their operations. Despite this eventuality, employers must implement reasonable measures that will alleviate the risk of its employees contracting Covid-19 while at the workplace. The Occupational Health and Safety Act (OHSA) requires every employer to maintain a safe working environment that will not only protect the health and safety of their workers but that will further ensure, as far as it is reasonably practicable, that people who are involved in the activities of the business (such as clients) are not exposed to health-related perils while at the employer’s premises. On 4 June 2020, the Department of Employment and Labour issued a consolidated directive dictating measures in certain workplaces, to replace the direction issued on 29 April 2020, that employers must adopt in minimising the risk of exposure to Covid-19. Subject to exclusions, this directive applies to employers and workers in workplaces permitted to continue or commence operations under Alert Level 3 Regulations. The measures that must be adopted by employers in terms of this directive include supplying workers with facial cloth masks, hand sanitisers and symptom screening facilities. The directives are silent on the duties of an employer for employees working from the comfort of their homes, despite the fact that this has become the new normal for most employers and employees. The liability of an employer has been extinguished in circumstances where an employee contracts Covid-19 at the workplace or within the scope and course of his or her employment, and the employee may therefore lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA). Although there may be a number of conflicting views on an employer’s positive duty to provide a reasonable working environment for employees working from their homes, it is advisable to direct employees to maintain strict adherence to the company’s Covid-19 measures especially during office hours - such as maintaining social distancing, disinfection of work surfaces and sanitising. Employers should reasonably ensure that the home environments of their employees are safe for working which may include providing employees with safety working equipment they may require, inspection of employees’ homes, and providing necessary instructions, training and supervision where necessary. Employees are also required by the OHSA to take reasonable steps in ensuring their health and safety, therefore an employer may request its employees to confirm the safety of their homes by signing indemnity forms that will indemnify an employer against any possible claims for contracting the virus while working from home.  Where an employee, including an employee working remotely, has tested positive for Covid-19 and the Compensation Commissioner has accepted liability (generally after the employee adduces proof that he/she contracted Covid-19 while at the workplace or during his/her course of employment which has resulted in temporary or permanent total disablement),  the temporary total disablement shall be paid from the date of diagnosis up to 30 days. An employee will therefore not be able to directly institute a claim against his/her employer should they contract Covid-19 in their place of work or during the course of employment. The Department of Labour continues to monitor and enforce compliance with all laws and regulations. Employers who do not comply therewith may not only be subjected to the payment of fines but may be ordered to close their businesses until they comply with the prescribed Regulations and/or directives. Despite the protection offered by COIDA, employers are advised to comply with issued Regulations and directives not only to mitigate the risk of exposure to Covid-1.9 but to ensure the efficient running of their operations during these difficult times. 

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