November 2015


Editor's Note - November 2015 Editor's Note November 2015

Gauteng is experiencing a heatwave. The pressure is on Eskom as people switch on their cooling systems, and the brief respite the utility had between heating and cooling is just a memory.

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Live on “fresh air” Employment Law November 2015

The tragic incidents at the Lonmin Mine in Marikana during August 2012 focused the minds of many employers on the reasons for the labour unrest. During the course of the leading of evidence before the Farlam Commission it became clear that some of the contributory factors conducive to the creation of labour unrest were the poor living conditions of the workers at the mines and their over indebtedness.

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No Disclosure, No Dismissal Employment Law November 2015

Section 189 of the Labour Relations Act, 1995 regulates the dismissal of employees based on operational requirements. The s189 retrenchment procedure was designed as a problem solving process. This is because the need to retrench is usually not the employee's fault or within his or her control.

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Pregnancy and the conception of inequality Employment Law November 2015

Employment of women is not without its challenges. In the words of Chief Justice Dickson in the Canadian Supreme Court judgement of Brooks v Canada Safeway Limited [1989] 1 S.C.R 1219 "Combining paid work with motherhood and accommodating the childbearing needs of working women are ever increasing imperatives. That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious. It is only women who bear children; no man can become pregnant...".

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The “invisible” illness challenge Employment Law November 2015

"Managing an employee who suffers from a "visible" illness or injury (for example a damaged or lost limb or back injury) is difficult enough. Managing a situation involving an invisible illness, such as depression, can be even more challenging, as the employer in discovered in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland ILJ (2009) BLLR 1181 LAC." (Maserumule Consulting "Dealing with Invisible Illness")

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An additional cause of action? Employment Law November 2015

Section 9 of the Constitution, 1996, prohibits unfair discrimination while s23 provides for the right to fair labour practices. Section 9 requires that "[n]ational legislation be enacted to prevent or prohibit unfair discrimination." In addition, South Africa has ratified the International Labour Organizations (ILO) Discrimination (Employment and Occupation) Convention, 1958, which in Article 3 enjoins its members to "declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof".

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Fair or lawful: which is paramount? Employment Law November 2015

Any employment lawyer in South Africa will tell you that fairness, and not the terms of the contractual relationship between the employer and the employee, is the yardstick. Was the dismissal fair? Although an employer did not follow its disciplinary policy, did it act fairly? Is it fair to both parties to permit a party to have legal representation at a disciplinary hearing?

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When a restraint of trade isn’t fair Employment Law November 2015

The vast majority of employees will be required, at some stage in their working lives, to conclude covenants of restraint of trade in favour of their employers. These covenants have drawn significant attention from South African courts due to the interplay between the principles and objects of labour law on the one hand, and the principles and objects of the law of contract on the other.

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IP developed by employees – who owns what? Employment Law November 2015

Employees often develop intellectual property (IP) whilst they are working for an employer and many assumptions may be made about who owns this IP. The employer believes that he pays the employee and, therefore, he owns the work product, whilst the employee believes that he applied his own ingenuity therefore surely he should own it.

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A source of frustration Employment Law November 2015

A natural check and balance in litigation comes from the deterrent of being saddled with your opponent's costs if the court dismisses your claim. Whilst you may be able to live with losing your case and paying your own legal costs, the possibility of having to pay your opponent's legal costs has been shown to focus the mind of many a would-be litigant. It has, therefore, been a source of frustration for employers and practitioners that our employment tribunal appears to be reluctant to award costs against unsuccessful applicants.

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The CCMA’s jurisdiction beyond SA’s borders Employment Law November 2015

In MECS Africa (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 745 (LC), the Labour Court was tasked with a jurisdictional ruling in which the CCMA had found that it had jurisdiction over an alleged unfair dismissal dispute where the employee had been working in Africa.

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Who is the employer? Employment Law November 2015

The relationship between a temporary employment service (TES), an employee and a client was substantially amended by the Labour Relations Amendment Act (6 of 2014) (the LRAA) with the introduction of s198A.

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A deterrent to foreign investment and a cause of unemployment? Employment Law November 2015

One of the purposes of the Labour Relations Act (LRA), as expressly espoused in Chapter 1, is to advance economic development. It is trite that foreign investors are key in contributing to economic development. However, the recent amendments to the LRA arguably impose further restrictions on South Africa's already rigid employment arena, which may result in foreign investors shying away from the country.

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Easier access to the workplace for trade unions Employment Law November 2015

The recent amendments to the Labour Relations Act, 1995 (the LRA) have made recruiting and organising members an easier process for trade unions.

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Majoritarianism in the context of organisational rights Employment Law November 2015

One of the policy assumptions reflected in the Labour Relations Act (66 of 1995) (LRA) is majoritarianism. This was described by the Labour Appeal Court in Kem-Lin Fashions CC v Brunton & another [2001] 1 BLLR 25 (LAC) as:

"The legislature has ... made certain policy choices in the Act ... One policy choice is that the will of the majority should prevail over that of the minority. This is good for orderly collective bargaining as well as for the democratisation of the workplace and sectors. A situation where the minority dictates to the majority is, quite obviously, untenable. But also a proliferation of trade unions in one workplace or in a sector should be discouraged. There are various provisions in the Act which support the legislative policy choice of majoritarianism."

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