Since the travesty that befell the country in 2012 with the Marikana incident, South Africa has been described as an extremely strike-prone country with many attendant losses. For example, insurer Sasria recorded claims of nearly R900 million most of which were as a result of the violent #FeesMustFall protests. What is government doing about strike violence? The National Economic Development and Labour Council (NEDLAC) has introduced two documents to address the issue of strike violence: The Accord on Collective Bargaining and Industrial Action, and The Draft Code of Good Practice: Collective Bargaining, Industrial Action and Picketing. The parties to the Accord are the Commission for Conciliation, Mediation and Arbitration (CCMA), Bargaining Councils, NEDLAC as well as employers’ organisations and trade unions. These parties have undertaken to ensure that - should violence, intimidation or the threat of harm occur in strikes - they will do everything in their power that the strike is solved as promptly as possible. The Accord also looks at the role of the South African Police Services (SAPS) during industrial action. It expressly states that during strike action, SAPS must have a sufficient presence visible to monitor the activities. Private security companies near the strike action are not to be armed. The Code details the practical application of the Accord. It will provide practical guidance on collective bargaining and dispute resolution among others. What is the legal effect of these? Anyone who is interpreting the Labour Relations Act (LRA) must take the Code into account as well. It has been argued that the Code has been drafted very vaguely – intentionally. Thus, it may be interpreted in a number of ways if it does not conflict with the LRA. CLICK HERE to submit your press release to MyPR.co.za. . . .
The beauty about the law is that – for the most part – it is very cut and dried. The law is a set of rules that need to be followed. Should this not be done, there are consequences that are metered out. There is a set manner in which these rules need to be interpreted. However, sometimes people try to get a little creative with how this interpretation happens. This happens especially with new aspects of law that are introduced into our law. A good example of this is the Equal Pay for Work of Equal Value provision which was introduced into the Employment Equity Act (EEA) a couple of years ago. The case of Zvigo v Society of Jesus in South Africa (2017) 26 CCMA 6.12.17 illustrates this. Facts of the case An employee alleged that he performed the same, or similar, work to that which a colleague (who received higher remuneration) did. The employer stated that the two employees’ jobs were not similar in the slightest. It was discovered that the prior employee was in fact merely dissatisfied with his work and, he admitted, he did not perform work that was the same or similar to that of his higher-paid colleague. Accordingly, the case was dismissed. Thus, if you find yourself faced with a dispute regarding Equal Pay for Work of Equal Value, ensure that you are on top of what this provision entails. CLICK HERE to submit your press release to MyPR.co.za. . . .
Earlier this year, we wrote about how social media can become a veritable minefield for you the employer. We also advised that you need to have a social media policy in place in addition to instituting training sessions about social media with your staff. Cantamessa v Edcon Group – (2017) 26 CCMA 8.37.2 also reported at  4 BALR 359 (CCMA) is another such case. Facts of the case An employee had made an allegedly racist comment on her Facebook feed regarding President Zuma and the current South African government. Several employees had liked it. After a complaint by another employee of the company, the employee who made the comment was dismissed under the social media policy. The employer informed her that had she not indicated on her Facebook profile that she was employed by the company, she would not have been dismissed. The employees who had liked the comment were given final written warnings. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) noted that the social media policy only applied while the employees were at work. It was also noted that the employer had acted inconsistently regarding the allocating of punishment to the various employees. Consequently, the Commissioner awarded 12 month’s compensation to the employee. However, in the ruling the Commissioner disregarded the Penny Sparrow decision in which Sparrow was dismissed from her employer even though she had made the racist comments she had while on holiday and using her own device. To be kept up to date with the latest happenings in labour law, HR and IR join our expert mailer database. Follow this link to join: http://eepurl.com/gLm75. If it is not clickable, please copy and paste it into your browser. CLICK HERE to submit your press release to MyPR.co.za. . . .
If you’re a designated employer and, as such, you need to present an employment equity plan, you need to be very aware of what the term “economically active population” means. What is meant by “economically active population”? According to the Organisation for Economic Co-operation and Development (OECD), the “economically active population” consists of: “… all persons of either sex who furnish the supply of labour for the production of economic goods and services as defined by the United Nations System of National Accounts during a specified time-reference period.” Section 15 of the Employment Equity Act (EEA) requires that all designated employers provide preferential employment for designated employee groups: “Affirmative action measures are measures designated to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.” In order to work out how – numerically – these employers must comply with section 15 of the Act, it is necessary to use both the National and Local Figures of each different race who are employed in each of the different provinces. These numbers will be found in the Quarterly Labour Force Survey. At Global Business Solutions, one of our specialties is employment equity training and consulting. We are very fortunate to have extremely qualified consultants in the field of employment equity who are on hand to assist. Contact us today to see how we can help you. CLICK HERE to submit your press release to MyPR.co.za. . . .
For a dismissal to be valid, it needs to be both procedurally and substantively fair. Temporary Employment Services (TES) have been in the news recently with regard to who their actual employer is: the TES or the TES client. The answer to this question is extremely relevant in dismissal cases. The case of Botes and others / LSC Masakhe (Pty) Ltd and another - (2017)26 NBCRFLI 8.28.1 also reported at  10 BALR 1037 (NBCRFLI) illustrates this. Facts of the case The applicants were posted at Imperial Express by LSC Masakhe (Pty) Ltd. They were then transferred to another company in the Imperial Group to render the same services on the same terms and conditions. (They were drivers and general workers.) After a period of two years, the work of the applicants was reduced and ultimately it ceased altogether. The reason for this diminution was that the company was investigating charges of alleged misconduct against them. As such, they did not want to use their services until the charges had been thoroughly investigated. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) brought up the fact that section 198A of the Labour Relations Act (LRA) indicates that TES employees who have been with a TES client for more than three months are in fact deemed to be employees of the TES client. (In fact, a dual employment relationship over the TES employees exists between the TES and the TES client.) LSC Masakhe (Pty) Ltd argued that the TES employees could not be deemed to be their employees as said employees were employed on call-off contracts by IDC, according to which the TES employees were obligated to provide labour to the IDC as and when needed. It was not determined by a fixed time. The Commissioner noted that under deeming provision of section 198A(3)(b) of the LRA, the TES employees could pursue claims against the TES as well as the TES client or both. Thus, the Commissioner declared that the TES employees were . . .