July 2016

The road to broad based black economic empowerment Employment Law - Feature July 2016

During apartheid, Black people (Africans, Coloured and Indians) were systematically excluded from having any meaningful participation in the mainstream economy. After the first democratic elections in 1994, words such as "redress", "affirmative action" and "black economic empowerment" became buzz words in South Africa. It became clear that the first order of the day for the government of the African National Congress would be to try to redress the inequalities caused by the apartheid system. Chief among these was the creation of an environment conducive to participation by black people in the economy.

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Along Colour Lines Employment Law - Feature July 2016

Earlier this year the Minister of Sports and Recreation banned four of South Africa's major sporting federations from hosting or bidding for international tournaments based on their alleged failure to meet transformation targets. Civil rights group AfriForum and trade union Solidarity claim that the Minister's decision is contrary to law. They cite the Employment Equity Act, 1995 (EEA) and the National Sports and Recreation Act, 1998 in support of their argument.

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Racism in the workplace: more prevalence or less tolerance? Employment Law - Feature July 2016

No one needs any reminder of the events of December 2015 where racism in South Africa once again became the subject of local and international news headlines. Twenty-two years into our democracy, South Africa is clearly still working towards changing attitudes and mind sets in order to achieve the rights enshrined in our Constitution.

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Bad Judgement Employment Law - Feature July 2016

"....Words are like leaves; and where they most abound, Much fruit of sense beneath is rarely found....

...Be silent always when you doubt your sense...

...For Fools Rush in Where Angels Fear to Tread"*

*Extracts from Alexander Pope's poem Essay on Criticism (1711)

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Disclosing price sensitive information in the age of social media Employment Law - Feature July 2016

Public companies are using social media with increasing frequency to disseminate information to stakeholders and the public in general.

In 2013, the US Securities and Exchange Commission issued a report following an investigation into a Facebook post written by the CEO of Netflix. The post read ""Congrats to [TS], and his content licensing team. Netflix monthly viewing exceeded 1 billion hours for the first time ever in June. When [HC] and [AD] debut, we'll blow these records away. Keep going [T], we need even more".

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Just another uber-employer in SA? Employment Law - Feature July 2016

In late April, less than two months before trial, two class-action law suits in the United States were settled by Uber Technologies Incorporated, to the value of $100 million, in which thousands of drivers alleged that they were misclassified as independent contractors, as opposed to employees. Clearly, the motivation for such a fundamental contention had a direct bearing on those drivers being entitled to various employment benefits as provided for by law.

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Employee's rights in an acquisition Employment Law - Feature July 2016

Section 23 of the Constitution affords everyone the right to fair labour practices. It was under the umbrella of this right that the Labour Relations Act (66 of 1995) was born.

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Protecting the interests of employees in mergers Employment Law - Feature July 2016

On 26 April, the Competition Tribunal gave its reasons for decisions to conditionally approve two acquisitions:

  • The acquisition of Aquarius Platinum Mine Limited by Sibanye Platinum Bermuda (Pty) Ltd (BidCo), a wholly owned subsidiary of Sibanye Gold Limited (the Aquarius Merger); and
  • The acquisition of the Rustenburg Mines (a Division of Rustenburg Platinum Mines Limited) (Rustenburg Mines) by Sibanye Rustenburg Platinum Mines (Pty) Limited (the Rustenburg Mines Merger).

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Business rescue in the employment context: what do the courts have to say? Employment Law - Feature July 2016

One of the innovations introduced by the Companies Act, 2008 was the mechanism of business rescue. In particular, chapter 6 of the Companies Act was inserted to "provide for the efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders".

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Blurred lines pave the way to placement: are you running an employment agency? Employment Law - Feature July 2016

The growing demand for hard to find skill sets, coupled with the looming talent crisis, has been a boon for the Recruitment Process Outsourcing (RPO) industry. RPO is a rapidly growing segment of the Human Resources Outsourcing industry, which in turn is a subset of the Business Process Outsourcing industry. Essentially, RPO is where an employer transfers all, or part, of its recruitment process to the external service provider.

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Pay discrimination justified by length of service? Employment Law - Feature July 2016

In one of the first appeals decided in terms of the recently enacted s10(8) of the Employment Equity Act, 1998 (the EEA), the Labour Court had to interpret the interaction between s10(8) and s6(4) relating to disputes about equal pay for work of equal value.

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You should have promoted me Employment Law - Feature July 2016

"You should have promoted me." These words often echo the feelings of a frustrated employee, who feels that they deserved to be promoted or appointed to a vacant post, either because they have worked for the employer for a long time or because they possess the required qualifications. It is within this context that we consider the legal position in relation to promotions in terms of the Labour Relations Act (66 of 1995) (LRA).

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Snitch...or you could lose your job Employment Law - Feature July 2016

A striking employee can be guilty of derivative misconduct and fairly dismissed by their employer if the employee fails to come forward and assist the employer to identify the perpetrators of misconduct during a strike.

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Not another memorandum of demand Employment Law - Feature July 2016

"The lady doth protest too much, methinks," Shakespeare writes in Hamlet. Protests then had a very different meaning to protests today in South Africa. They have become almost the only method the majority identify as a real means of communication with the levers of power (whether in state or in the workplace). This article examines the right of assembly and protest in the employment sphere.

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Strikes here, strikes there, strikes everywhere Employment Law - Feature July 2016

History has demonstrated that the second half of each year brings with it increased industrial action and labour unrest. But what does this mean for companies that use Temporary Employment Services (TES), or as they are more commonly referred to, Labour Brokers?

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