Category: Labour Law

THE RIGHT TO PROTEST: WHAT EMPLOYEES SHOULD KNOW

The right to protest is an integral part of South Africa’s constitution and has recently come to the forefront with mass protest being organised across the country in response to President Jacob Zuma’s reshuffling of cabinet, and the subsequent downgrade of South Africa to junk status. It is also something which often comes under inspection by the people being protested against, as well as employers who raise questions regarding their employees’ right to protest during normal working hours.

Section 17 of the Bill of Rights in the Constitution entrenches the right of everyone, “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

Can employees protest during normal working hours?

If an employee of a private company wants to join a protest march during regular working hours, it is necessary that they clear it with their superior first.

  • Any absence from work that is not authorised by the employer constitutes misconduct and gives the employer the right to take disciplinary action against the employee.
  • The type of disciplinary action depends on the circumstances, but can include dismissal if the employer is able to show significant inconvenience caused as a result of the employee’s absence and/or if the absence was in defiance of an express instruction to attend work.

Despite this, the Labour Relations Act does give every employee who is not engaged in an essential service‚ the right to take part in protest action for the purpose of promoting or defending the socio- economic interests of workers.

Conclusion

It is also not a crime to attend a protest unless it has been prohibited and protests can only be prohibited in very specific circumstances. However, employees should confirm with their employers about taking time off to protest and employers should be reasonable about letting their employees protest, considering it is within their right to do so. However, all things that are otherwise illegal, such as violence, vandalism, arson or hate speech, are also illegal during a protest.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE) 

References:

http://www.timeslive.co.za/consumerlive/2017/04/05/Planning-to-skip-work-for-the-protests-on-Friday-Read-this-first

https://www.dailymaverick.co.za/article/2017-04-06-groundup-dont-fall-for-illegal-protest-nonsense/#.WOd7JIiGPIU

GOVERNMENT ADMINISTRATORS MAKING WRONG DECISIONS

Occasionally, government administrations make decisions that people don’t understand or agree with. In cases such as these there are procedures to follow that ensures administrative justice. The Promotion of Administrative Justice Act allows you to have a say in matters that affect your rights.

The Promotion of Administrative Justice Act of 2000 (PAJA) gives people the right to fair, lawful and reasonable administrative action. Furthermore, it gives the right for individuals to be provided with reasons for any administrative actions that affect them negatively.

Administrative action?

If a person applies for an ID, for example, home affairs has to decide on whether or not the person should get one. They could perhaps decide that an ID should not be granted. This process is an example of an administrative action.

Government departments, the police, the army and parastatals such as ESKOM all make up the administration. PAJA applies when a decision made by the administration has a negative effect on someone’s rights. Maybe someone has been denied a work permit, for example, and the administrator did not give specific or good reasons why. PAJA gives them right to know what the reasons were and why they were made.

What does PAJA do?

PAJA requires that administrative decisions follow fair procedures and it allows you to have a say before a decision is made with possible negative implications to your rights. Those who make administrative decisions also have to clearly explain their decisions and tell you about any internal appeals within their department. You are also allowed to ask a court to review their decision when it’s made. An important benefit of PAJA is that you can request the reasons for their decisions.

Know your rights

Administrators are not allowed to simply make decisions without consulting you in several ways first. First, they have to tell you what decisions they are planning to make and how they will affect you. They also have to give you enough time to respond to their plan.

When a decision has been taken and it has negatively affected your rights, administrators must give you a clear statement of what they decided and a notice of your right to review the decision. They also have to give you notice that you can request written reasons for their decision, which you should pursue if you believe an administrators decision was unreasonable or unlawful.

These are some reasons that would make an administrative decision unlawful:

  • There was no good reason for the decision.
  • The decision-maker was not authorised to do so by legislation.
  • The person who took the action applied the law incorrectly.

What can you do?

If a decision has been made that you believe contravenes your rights, you can request that the particular department provide reasons for the decision, if reasons have not already been given. The request should be in submitted in writing and within 90 days of the decision having been made. If you don’t agree with the decision or reasons, you can go through an internal appeal. This step must be taken before you can take further action. Government administrations will usually have their own internal appeals process, which they should notify you about. If you’re still not happy you can complain directly to the department involved or go to a court to take the matter further. Going to court is expensive so it’s advisable to settle the matter through internal appeals, if possible.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) Department of Justice and Constitutional Development. Accessed: http://www.justice.gov.za/paja. 09/05/2016.

CAN I STILL GO TO THE CCMA AFTER I SETTLED?

If an employee has been demoted after a fair process and has accepted the demotion, could they still go to the CCMA for unfair labour practice. It’s important to first take into account the circumstances.

A case involving Builders Warehouse

The facts in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] can be summarised as follows: The employee worked as an Administrative Manager at Builders Warehouse (Pty) Ltd. She was informed by doctors that she was very ill and would most likely have to go to hospital frequently and take various types of medication. Over the next three years her absenteeism increased significantly and her employers became concerned as she was no longer able to do her job effectively, even when she was not absent, due to the side effects of her medication.

Builders Warehouse, after having discussions with the employee, suspended her pending an investigation into her capacity to undertake the functions of an administrative manager, taking into account her health and performance. Builders Warehouse held an incapacity hearing and the external chairperson ruled that, due to the employee’s excessive and increasing absenteeism, dismissal was the appropriate sanction. The chairperson, however, offered her a demotion instead of a dismissal. The employee accepted this demotion in writing.

After this agreement between Builders Warehouse and the employee was concluded, she obtained legal assistance and subsequently complained to the CCMA that Builders Warehouse had committed an unfair labour practice by demoting her.

The question here is whether the employee was entitled to refer an unfair labour practice dispute concerning the demotion to the CCMA.[2]

The arbitrator in the CCMA decided that because there was consent to the demotion, the CCMA did not have jurisdiction to hear the dispute. The employee then appealed to the Labour Court and once again to the Labour Appeal Court, of which the outcomes are set out below.

Outcomes of the case

The Labour Court and the Labour Appeal Court looked at Section 186(2)(a) of the Labour Relations Act[3] in this regard, which states:

“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits.”

The Labour Appeal Court upheld the judgement in the Labour Court and found that although a binding contract comes into existence when employers and employees settle their differences by agreement, such an agreement does not mean that the CCMA does not have jurisdiction to hear the dispute. The fact that the parties have agreed that the employee accepted demotion is not a complete defence for the employer because the ambit of this unfair labour practice is wide enough to include the implementation of an agreement to accept demotion.[4] The Labour Appeal Court confirmed that the determination of whether a demotion took place, unlike the determination of dismissal, does not require an arbitrator to determine if there was consent or not.[5]

Conclusion

Although consent is a relevant issue in regard to the merits of a dispute regarding an unfair labour practice, it is not a jurisdictional prerequisite. This means that the CCMA does have the power to hear a matter relating to a demotion even though there was consent thereto.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC

Labour Relations Act 66 of 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 13.

Basic Conditions of Employment

A1_B There are basic standards which are set out in the Basic Conditions of Employment Act 75 of 1997 which regulate, amongst other, the working hours that employees are permitted to work. Whether these conditions are enforced in practice, however, is uncertain.

The Basic Conditions of Employment Act 75 of 1997 (BCEA) sets certain minimum standards of working conditions for employees. In Section 1 and 3 the BCEA sets out that it does not apply to independent contractors, as well as certain others such as unpaid volunteers, members of the South African National Defence Force and South African National Secret Service. Conditions regulating working hours are included in the BCEA which, in addition to the general exclusions mentioned above, exclude the following persons:

  • Senior managers;
  • Sales staff who travel to the premises of customers and who regulate their own work hours;
  • Employees who work less than 24 hours a month for an employer;
  • Employees earning in excess of R 205 433.30 per annum.

If you do not fall into one of the abovementioned categories then the conditions in the BCEA (Sections 9 to 15) regulating working hours will apply to you.

The maximum amount of working hours per week are 45 hours. Those who work five days a week may work for 9 hours a day and those working six or seven days a week may work for 8 hours a day. These hours may be extended by agreement between an employee and employer but this extension is limited to a maximum of an extra 15 minutes per day or, alternatively, an extra 60 minutes per week.

A meal interval of at least 1 hour is due to an employee who works continuously for more than 5 hours and at this time the employee may only be asked to perform tasks that cannot be left undone or that cannot be entrusted to another employee. If the employee is required to work during a work interval, or if they are required to be available for work, that employee must be remunerated for being available during that time.

Overtime is limited to 10 hours per week if it is arranged per agreement between an employer and employee. This can, however, be increased to 15 hours a week by means of a collective agreement but this agreement is limited in duration in that it may not apply for more than 2 months in a 12 month period. The rate at which remuneration is calculated for overtime is at 1.5 times the employee’s normal remuneration.

These are some of the basic conditions regulating working hours, and further conditions and exceptions thereto can be found in Section 9 – 18 of the BCEA. Although the abovementioned conditions seem to provide protection to employees many employees will merely take note of them and continue to work overtime continuously without pay and without complaining. Unfortunately we live in a country where there are far more people to fill jobs than jobs available and therefore the only time that this Act is properly utilised is through collective bargaining and trade unions; therefore it offers little comfort to individual employees not belonging to trade unions.

Bibliography:

  • A C Basson, M A Christianson, A Dekker, C Gerbers, P A K Le Roux, C Mischke, E M L Strydom: Essential Labour Law 5th ed. (2009)
  • Basic Conditions of Employment Act 75 of 1997

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What constitutes fair dismissal?

A2_BLabour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he does renew the contract, but on less favourable terms than the employee had reasonably expected.

Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can I still make a case of unfair labour practice if I have settled?

A4_BIn this article we will discuss whether, in the face of an agreement between an employer and an employee in terms of which an employee accepts a demotion to a lower position, the employee is nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.

 

The facts in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] can be summarised as follows: The employee worked as an Administrative Manager at Builders Warehouse (Pty) Ltd. She was informed by doctors that she was very ill and would most likely have to go to hospital frequently and take various types of medication. Over the next three years her absenteeism increased significantly and her employers became concerned as she was no longer able to do her job effectively, even when she was not absent, due to the side effects of her medication. Builders Warehouse (Pty) Ltd, after having discussions with the employee, suspended her pending an investigation into her capacity to undertake the functions of an Administrative Manager, taking into account her health and performance. Builders Warehouse (Pty) Ltd held an incapacity hearing and the external Chairperson ruled that, due to the employee’s excessive and increasing absenteeism, dismissal was the appropriate sanction. The Chairperson, however, offered her a demotion instead of a dismissal. The employee accepted this demotion in writing.

After this agreement between Builders Warehouse (Pty) Ltd and the employee was concluded, she obtained legal assistance and subsequently complained to the CCMA that Builders Warehouse (Pty) Ltd had committed an unfair labour practice by demoting her.

The question here is whether, in the face of an agreement between Builders Warehouse (Pty) Ltd in terms of which the employee accepted demotion to a lower position, she was nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.[2]

The arbitrator in the CCMA decided that because there was consent to the demotion, the CCMA did not have jurisdiction to hear the dispute. The employee then appealed to the Labour Court and once again to the Labour Appeal Court, of which the outcomes are set out below.

The Labour Court and the Labour Appeal Court looked at Section 186(2)(a) of the Labour Relations Act[3] in this regard, which states the following:

“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits.”

The Labour Appeal Court upheld the judgement in the Labour Court and found that although a binding contract comes into existence when employers and employees settle their differences by agreement, such an agreement does not mean that the CCMA does not have jurisdiction to hear the dispute. The fact that the parties have agreed that the employee accepts demotion is not a complete defence for the employer because the ambit of this unfair labour practice is wide enough to include the implementation of an agreement to accept demotion.[4] The Labour Appeal Court confirmed that the determination of whether a demotion took place, unlike the determination of dismissal, does not require an arbitrator to determine if there was consent or not.[5]

In conclusion, it is clear from the Builders Warehouse case that, although consent is a relevant issue in regard to the merits of a dispute regarding an unfair labour practice, it is not a jurisdictional prerequisite. This means that the CCMA does have the power to hear a matter relating to a demotion even though there was consent thereto.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Bibliography

  • Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC
  • Labour Relations Act 66 of 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 13.

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