September 2017


BUSINESS TRANSFERS V OUTSOURCING: WHO IS LIABLE FOR WHAT AND WHEN? Employment Law - Feature September 2017

Section 197 of the Labour Relations Act (LRA) has been with us for more than 20-years. It essentially ensures the preservation and continuity of employment for employees in circumstances where a business is "transferred as a going concern", by one employer (the old employer) to another employer (the new employer) by providing for the automatic substitution of the new employer, in place of the old employer. This applies by operation of law and cannot be circumvented as between the transferor and the transferee of the business.

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THE IMPACT OF THE ASSIGN OUTCOME ON THE TES SECTOR Employment Law - Feature September 2017

In the case of NUMSA v Assign Services and Others (JA96/15) [2017] ZALAC 45 (10 July 2017), the Labour Appeal Court (LAC) overturned a decision handed down by the Labour Court (LC). This decision stated that, in terms of temporary employment services (TES) workers, both the TES and the employer with whom they are placed are seen to be employers of that particular person. Many writers seem to indicate that this spelled the end of Temporary Employment Services (TES) and that now all TES employees are permanent employees of the client they have been placed with. This, in the writers' view, is not accurate.

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LABOUR BROKERS – WHO ARE THE EMPLOYERS? Employment Law - Feature September 2017

On the 10 July 2017, the Labour Appeal Court (LAC) handed down judgement in in the case Numsa v Assign Services and Others, which dealt with the status of the employment relationship when labour broker employees are deemed to be employees of the client.

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RACISM IN THE WORKPLACE Employment Law - Feature September 2017

"Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question." These were the words of the Labour Appeal Court (LAC) in 2002 in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others.

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HOW THE CITY OF JOHANNESBURG FELL FROM THE FIREMAN'S POLE Employment Law - Feature September 2017

Bekker CJ, Mohamed CJ and Zondo JP long observed that "racist conduct requires a very firm and unapologetic response from the courts, particularly the highest courts. Courts cannot therefore afford to shirk their constitutional obligation or spurn the opportunities they have to contribute meaningfully towards the eradication of racism and its tendencies." (myemphasis)

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"IF ONLY I COULD FEEL, SENSE OR SEE THE DISCRIMINATION" Employment Law - Feature September 2017

Those of us who have pets appreciate too well the feelings of companionship, endearment and unconditional love that comes with having a furry friend by your side. The excitement when you arrive home, the droopy sad eyes when you leave, the sloppy kisses and the warm body next to you on a cold winter's night. Our canine companions are truly man's best friend.

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ENABLE ME A LOOK AT LIFE AS A BLIND EMPLOYEE Employment Law - Feature September 2017

In a country where unemployment is a major issue, gaining employment is a daunting task for anyone. Tick the disabled box on a job application, and you are almost guaranteed to be unsuccessful in obtaining an interview, let alone being successful with your application. This is a reality most disabled South Africans are faced with, and which can be attested to by the fact that in 2014 only 0.9% of the country's economically active people were disabled.

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COPYRIGHT 101 FOR CREATIVES Employment Law - Feature September 2017

Ownership of copyright is one of the more prevalent issues in intellectual property law, particularly in the context of an employment or service relationship. Recently, this has become especially pertinent in creative fields, with the growing trend to outsource work and an increasing number of freelancers who offer their creative services.

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RED CARDING THE REFEREE - DIFFICULTIES IN DEALING WITH ERRANT BEHAVIOUR BY THOSE WHO WATCH OVER US Employment Law - Feature September 2017

You know you're not in Kansas anymore when you read expletive-laden quotes of an employee rant in a Labour Court judgment. Thankfully, the judge censored sensitive eyes from the most colourful language but deciphering what was said is easier than decoding the Springboks' line-out calls. Save for the alarming insight it provides into the machinations of elements of professional refereeing, the judgment in Andre Watson v South African Rugby Unions & Others (delivered 30 June) deals with the interesting conundrum of distinguishing between employee misconduct and incapacity when dealing with alleged incompatibility.

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BEWARE THE CONSEQUENCES Employment Law - Feature September 2017

In 2006 the Supreme Court of Appeal in Denel (Pty) Ltd v Vorster ([2005] 4 BLLR 313 (SCA)) held that an employer's failure to adhere strictly to the terms and conditions of its own disciplinary policy, where that disciplinary policy was expressly incorporated in the employee's contract as a term and condition, was a breach of contract which entitled the employee to seek an order directing the employer to adhere to the terms.

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SOUTH AFRICAN MINING INDUSTRY DIGGING ITSELF DEEPER INTO A HOLE Employment Law - Feature September 2017

It is estimated that, in the past three years, more than 80 000 jobs have been lost in the mining industry. It is generally accepted that there is a high multiplier effect applicable in the mining industry and that, on average, each person directly employed at a mine, provides income to or sustains at least six to eight other people, if not more.

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CAUGHT IN THE CROSS-HAIRS Employment Law - Feature September 2017

The National Union of Mineworkers contended before the Labour Court that the employer of certain of its members, Impala Platinum Ltd, had breached the employment contract by failing to discipline other employees of Implats who were members of the Association of Mineworkers and Construction Union. It was alleged by NUM that the members of AMCU had committed acts of misconduct by threatening or committing acts of violence against the NUM members.

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A MORATORIUM ON A REALITY CHECK? Employment Law - Feature September 2017

"Each instance of sexual harassment has to be judged on its merits. Facts, timing, motives, credibility: all must be considered before we make up our own minds what to believe." – Anna Quidlen

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THE EFFECT OF STRIKE ACTION ON GOVERNMENT INFRASTRUCTURE PROJECTS Employment Law - Feature September 2017

The right to strike is a right extended to employees and has recognition within various quarters in South Africa. These quarters include the Constitution and s64(1) of the Labour Relations Act (66 of 1995). The purpose of strike action has been described in the following terms:

"Strikes, by their nature, are intended to cause the employer economic harm. By withholding their labour, the employees hope to bring production to a halt, causing him to lose business and to sustain overhead expenses without the prospect of income, in the expectation, that should the losses be sufficiently substantial, the employer will accede to their demands." (VNR Steel (Pty) Ltd v NUMSA 1995 7 BLLR 19 (LAC); 1995 ILJ 1483 (LAC)).

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Municipal liability for inadequate public safety Constitutional Law September 2017

The state's constitutional obligation to address conditions which enable violence and the perpetration of rape does not rest solely on the South African Police Service. All organs of state, including local government agencies and municipalities, have a duty to respect and fulfil this constitutional obligation.

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