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Panel Discussion: Decoding the 2025 Budget Speech

Date: 26 February 2025 | Location: Online webinar – link will be sent to registrants

Join us for our annual online panel discussion as our expert panellists set to work decoding the 2025 national budget from a legal, tax, accounting, fiduciary, and compliance perspective and discuss the implications it holds for individuals, trusts, and companies. 

Event Details
Date: 26 February 2025
Start Time: 26 February 2025 03:00 PM
End Time: 26 February 2025 04:00 PM

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Panel Discussion: Decoding the 2025 Budget Speech

Date: 26 February 2025 | Location: Online webinar – link will be sent to registrants

Join us for our annual online panel discussion as our expert panellists set to work decoding the 2025 national budget from a legal, tax, accounting, fiduciary, and compliance perspective and discuss the implications it holds for individuals, trusts, and companies. 

Event Details
Date: 26 February 2025
Start Time: 26 February 2025 03:00 PM
End Time: 26 February 2025 04:00 PM

VIEW
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Filter: Labour Relations Act
Employee rights in business transfers

03 February 2025

An often-overlooked aspect of a sale of business, is the treatment of staff, with the financial objectives of the sale... taking precedence. In this article, we look at the rights of employees and the importance of these rights being upheld during and post the transfer process to limit the employer’s liability to claims of unfair conduct.

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Article
Can Covid-19 vaccinations be made compulsory by employers?

10 August 2021,  Sinenhlanhla Khoza

I work in a large retail store, and rumours are that my employer is going to require all employees to... be vaccinated for Covid-19. I don’t have a problem with anyone getting the vaccine, but I haven’t made up my mind yet as to whether I want to get vaccinated. What are my rights in this regard, and can my employer force me to get vaccinated?

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

17 March 2021,  Sinenhlanhla Khoza

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,  Sinenhlanhla Khoza

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
Constitutional Court rules domestic workers can claim for injuries at work

25 November 2020,  Sinenhlanhla Khoza

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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Article
Zoom-zoom, and the labour landscape is transformed!

28 July 2020,  Tata Mokwayi

This is certainly not an advert for a popular motor vehicle, nor to popularise the recent upsurge of the use... of the Zoom video communication/conferencing application.  In fact, Zoom as a virtual communication platform preceded the outbreak of Covid-19. Yet despite it's existence before the onset of the pandemic, Zoom meetings are only now becoming “a thing” in the employment sphere. As we are now all realising and experiencing daily, the means of communication between employers and employees are taking on a new form. We are living in unprecedented times and the new normal seems to have slowly settled into our employment relationships. Employers, employees, trade unions and dispute resolution forums such as the CCMA, Bargaining Councils and the Labour Court have had to catch up with the times by swiftly introducing platforms such as Zoom or Microsoft Teams as a means of communication, or as a platform for the adjudication of disputes. In fact, the Labour Court recently held that a retrenchment exercise in terms of section 189 or 189A of the Labour Relations Act 66 of 1995 (‘”LRA”) may be conducted via Zoom or some other form of video conferencing. In terms of the LRA, a dismissal must be procedurally and substantively fair. The Court found that there was no procedural unfairness by conducting retrenchment consultations through the use of Zoom. This form of consultation accords with the new normal and has been found to be fair. Due to the current circumstances and the unfortunate increase of Covid-19 cases, this decision will have a far-reaching impact on retrenchment exercises and will provide justification for the use of technological platforms such as Zoom, whenever it is reasonably practicable to do so. That said, the convenience of Zoom and many other similar virtual communication platforms, have enabled businesses to continue running in the midst of the current turmoil - and they have also provided what is now regarded as an acceptable platform to allow for the expeditious resolution of disputes in the above-mentioned forums.

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Labour Court lays down retrenchment rules when a business is under business rescue

15 July 2020,  Sinenhlanhla Khoza

During these difficult economic times, many businesses are experiencing financial distress and have responded thereto by, among other things, getting... retrenchment processes underway. In terms of the Labour Relations Act (LRA), an employer who ‘contemplates retrenchments’ due to his or her operational requirements may issue a notice inviting all affected employees to a consultation. The purpose of the consultation is for parties to attempt to reach consensus on a number of prescribed factors prior to any final decision being taken on retrenchments. The LRA does not prescribe any precondition to be met by such an employer prior to the issue of retrenchment notices. The employer merely has to be contemplating retrenchments due to his economic, structural or other needs of his or her business and must issue retrenchment notices as soon as possible thereafter. This therefore means that the employer has the exclusive prerogative to decide on when to issue retrenchment notices.  This position has, however, recently been changed when it comes to an employer under business rescue as contemplated by the Companies Act. During business rescue proceedings, the business rescuer assumes management control of the company and subsequently ‘steps into the shoes’ of the employer with regards to all rights and obligations the latter had prior to the start of this process. In the largely publicised court-battle between South African Airways (SOC) Ltd and Others v National Union of Metalworkers of South Africa ( NUMSA) obo Members and Another the Labour Court was faced with a question of when a business rescue practitioner may commence with retrenchments in terms of the Labour Relations Act.  In interpreting the Companies Act, the Court ultimately held that the need to retrench must be entrenched in the business rescue plan itself and the business rescue practitioner is not empowered to retrench employees in the absence of a business rescue plan - and that doing so, was procedurally unfair. This judgment, which has been confirmed by the Labour Appeal Court, means that an employer who has been placed under business rescue must address the issue of retrenchment in the business rescue plan itself and only issue notices to the affected employees after the business rescue plan has been approved. In practice, prior to issue of retrenchment notices, employers offer voluntary severance packages to employees who are likely to be affected by retrenchments. In the aforementioned case, NUMSA argued that the offer of voluntary severance packages entails that the employer is contemplating retrenchments which is subject to a consultation process in terms of the LRA. The Courts, however dissented from this view and held that the provisions of the LRA do not prohibit an employer from offering his/her employees voluntary severance packages as a measure to prevent retrenchments and should such an offer be accepted, the employment relationship is terminated by mutual agreement. The Labour Court plays a supervisory role in all retrenchment processes instituted by employers. Therefore, should an employer fail to follow any procedure prescribed by the LRA, any party to the consultation process may approach the Labour Court for an appropriate order which may include compelling the employer to comply therewith, interdicting the employer from dismissing the employee until the former has complied with the procedure or awarding compensation to the employee. Such an employee must approach the Labour Court within 30 days of the employer giving notice of termination of employment or if no notice is given, the date on which the employee is dismissed.Consequently, a business rescuer can only commence with retrenchment process after the business rescue plan has been approved.

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Implementing fair retrenchments in the time of Covid-19

25 June 2020,  Sinenhlanhla Khoza

The COVID -19 pandemic has resulted in the financial distress of many businesses nationwide. This has unavoidably resulted in retrenchment... having to be considered. It is however important to first determine the fair procedure for implementing retrenchments during the nationwide lockdown.  The duration of the Covid-19 lockdown is unknown to everyone, but we know it is temporary so employers must not be too quick to consider retrenchments when they have not exhausted other alternatives, which may include temporary lay-offs and unpaid leave.The declaration of Covid-19 as a national disaster and the subsequent regulations promulgated in terms of the Disaster Management Act have had little to no effect on the obligations of employers who want to conduct retrenchments and they may therefore not circumvent any of the retrenchments processes that are strictly defined in section 189 of the Labour Relations Act (LRA). Failing to follow the procedures set out by the LRA, an employer could be exposed to a claim of unfair dismissal being referred to the CCMA or Labour Court. Section 189 of the LRA is restrictive and an employer who is contemplating retrenchments due to his/her operational requirements is required to first consult with a trade union, a workplace forum or employees who are more likely to be affected by the contemplated retrenchments. If there is a collective agreement in place, an employer may only consult with those parties required to be consulted in terms of such collective agreement. The Constitutional Court in Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others recently held that section 189(1) of the LRA did not limit the right to fair labour practices by allowing for the exclusion of the minority union and non-unionised employees in the consultation process.  The consultation process must be genuine and must be aimed at reaching some level of consensus with the employees, which may include issues like changing the timing of the dismissals or mitigating the adverse effects thereof. An employer must consider and respond to the representations made by employees during the consultation process.Employers must further select employees who are likely to be retrenched according to a criterion that is objective and fair. Employers and employees may agree to use a selection criteria and record this in writing to prevent any future disputes regarding the fairness of the criteria adopted by the employer. If the business will not be in a financial position to pay severance packages at the time of implementing retrenchments, affected employees must be informed of this during the consultation process in order for both parties to attempt to reach an agreement regarding payment thereof. A retrenched employee is entitled to at least one week’s salary for every completed year of service with an employer. Parties in the consultation process may agree for severance pay to be divided into monthly payments, or defer payment thereof to a later date as agreed to by the consulting parties. Despite the Covid-19 pandemic and the difficulties that may be associated with the retrenchment procedures, employers remain bound to follow the retrenchment process as contained in the LRA and to pay employees all statutory amounts due because the regulations of the lockdown will not excuse employers who circumvent this process. We therefore advise that you consult with a labour law specialist who will offer guidance on the fair implementation of retrenchments. 

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