Category: Labour Law (page 1 of 2)

Racism in the workplace – it’s not always black or white

This article discusses two Constitutional Court judgments which deal with racism, or perceived racism, in the workplace. It briefly outlines the facts surrounding each dispute and then examines the Constitutional Court judgments in greater detail. The article notes that certain parallels exist between the two judgments and concludes by remarking on the importance of rules in the workplace which prohibit racist words and conduct.

Introduction

This article discusses two recent Constitutional Court judgments, which deal with racism, or perceived racism, in the workplace. Although each judgment and respective outcome should be understood in the context of the specific facts, certain parallels are worth noting. Both judgments had to decide whether the language used in the context was racist. In both cases, the employees concerned were dismissed by the employer and the employer’s decision was challenged by way of arbitration proceedings. In both cases, the arbitrator directed that the employees be reinstated. The Constitutional Court, in both cases, applied its well-known Sidumo test to decide whether or not the awards should be upheld. The test determines whether the decision made by the arbitrator is one which a reasonable decision-maker could not reach. The test ensures the constitutional rights to fair labour practices and administrative action which is lawful, reasonable and procedurally fair. The two judgments are now discussed.

Rustenburg Platinum Mine v SAEWA obo Bester and Others

Mr Bester was an employee at Rustenburg Platinum Mine. An incident occurred on 24 April 2013, the details of which were disputed. The Constitutional Court ultimately accepted that Mr Bester interrupted a safety meeting and demanded that a car which was parked next to his own be removed. He pointed his finger at the applicant’s chief safety officer, Mr Sedumedi, and loudly commanded, “Verwyder daardie swart man se voertuig”, in reference to another employee’s 4×4 vehicle, otherwise he would take the matter up with management.

Mr Bester was forthwith suspended pending the outcome of a formal disciplinary enquiry. He was charged with two acts of misconduct, namely: insubordination for disrupting the safety meeting and for making racial remarks, which breached a workplace rule prohibiting abusive and derogatory language. On 28 May 2013, Mr Bester was dismissed by the applicant after being found guilty on both grounds.

Mr Bester referred the dispute to the CCMA for arbitration and the arbitrator’s award was taken on review to the Labour Court, the Labour Appeal Court and ultimately to the Constitutional Court. The arbitrator concluded in his award that the dismissal was both substantively and procedurally unfair and ordered the reinstatement of Mr Bester. However, the arbitrator misdirected himself on the facts and found in favour of Mr Bester that in the context the words “swart man” were used, it was innocuous and for the purpose of identification. This defence had not been raised and was unsupported by evidence. Mr Bester’s defence was to deny making the statement.

In the Constitutional Court, Theron J, in a unanimous judgment, held that to regard the words “swart man” as innocuous in the context, ignores South Africa’s past of institutionally entrenched racism. The objective test had to be applied to the correct facts. On this basis, “swart man” was “racially loaded and derogatorily subordinating”. The arbitrator’s conclusion was one that a reasonable decision-maker could not have reached. The sanction of dismissal was reinstated, due to Mr Bester’s dishonesty in denying making the statement and his lack of remorse.

Duncanmec (Pty) Limited v Gaylard N.O. and Others

In this case, nine employees participated in an unprotected strike and were filmed singing a struggle song which featured lyrics that translate to, “Climb on the rooftop and shout that my mother is rejoicing when we hit the boers”. The employees were found guilty of participating in an unlawful strike action and also for singing a racially offensive song. After being given a final warning for the former offence, they were dismissed on the latter offence. Duncanmec justified its decision by contending that the conduct of the employees irreparably eroded the trust relationship between employer and employees.

Before the Bargaining Council, the arbitrator ordered the reinstatement of the employees, reasoning that the employees showed remorse and that the employment relationship had not broken down irretrievably. In addition, it was necessary to distinguish between singing a song which could cause harm and referring to someone in racist language.

The Constitutional Court, in a unanimous judgment written by Jaftha J, noted that increasing instances of racism in the workplace were becoming worrisome. It held that the use of the word “boer” in isolation was not racist or a racially offensive word, but that in the particular case, its use in the song sung by the employees was inappropriate and racially offensive. The Court, however, in applying the Sidumo test, held that the arbitrator had not acted unreasonably, nor, as contended by Duncanmec, applied her own sense of fairness in determining that the dismissal was substantively unfair. The award was therefore upheld.

Conclusion
In conclusion, in the light of these two recent judgments, it is evident that racism in the workplace is a recurring issue with which courts must deal to hold individuals accountable if their conduct is found to be racially offensive and an infringement of constitutional rights. However, it is unrealistic to expect that courts, or the threat of legal action, can prevent persons in the workplace from persisting with racist behaviour. It is therefore important that employers have adequate rules in place which expressly prohibit racist words and conduct, so that violations can be dealt with expeditiously and effectively. The judgments also indicate that should those found guilty of racism show no remorse, dismissal will be viewed as an appropriate sanction.

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 List:

  • Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29.
  • Rustenburg Platinum Mine v SAEWA obo BESTER and Others [2018] ZACC 13.
  • Sidumo v Rustenburg Platinum Mines Ltd 2008 2 SA 24 (CC).

Prize draw or promotional competition – a promoter’s legal compliance checklist

If one opens almost any newspaper, magazine or website, one is confronted with a myriad of promotional competitions and, especially, competitions conducted using SMS or MMS technology. For this reason, the promoters of such competitions will need to realise that the Consumer Protection Act 68 of 2008 (the “CPA”), which came into effect on 1 April 2011, has certain far-reaching implications which are likely to apply to such competitions and educate themselves as to its specific requirements.

The CPA replaced the repealed Lotteries Act 57 of 1997 and became effective on 1 April 2011. Section 36 of the CPA imposed the stringent definitions of a “promoter” and “promotional competition”, which includes competitions where prizes can be won regardless of whether a participant shows any skill or ability. Given these rather wide definitions and the very low-value threshold of R1.00 prescribed in terms of Regulation 11(4) of the CPA Regulations, it is clear that the vast majority of competitions conducted in South Africa from 31 March 2011 will be governed by the CPA.

Promoters, including promoters of SMS or MMS competitions, will be in contravention of the CPA where:

  • they indicate that a participant has won a competition if no competition has been conducted, the person has, in fact, not won the competition or the person is required to meet a previously undisclosed condition or to pay a further sum of money in order to receive the prize; or
  • a participant is informed that he has a right to a prize when, in fact, he does not have such right, where the prize was generally offered to other similar participants, or where the participant is required to pay a further amount for the prize or to purchase any goods or services.

Crucially, section 36(3) requires that a promoter should “not require any consideration to be paid by… any participant… other than the reasonable costs of posting or… transmitting an entry” and Regulation 11(1) specifies that the “reasonable cost of electronically transmitting an entry shall not exceed R1.50”.

A promoter would similarly fall foul of the CPA, where he requires participants to make payment for the opportunity to participate in the competition or where he requires the purchase of any goods or services and the price charged for those goods or services “is more than the price… ordinarily charged for those or similar goods or services without the opportunity of taking part in (the) competition”.

For the purposes of ensuring fairness, the CPA requires that a promoter may not award a prize to any person who is a director, member, partner, employee or agent of, or consultant to, the promoter or to the supplier of any goods or services in respect of the competition.

Practical Requirements

A promoter should ensure that his invitation for participants to take part in his competition includes details on:

  • how a participant should accept the invitation to participate;
  • how the results will be determined;
  • the competition’s closing date;
  • the means by which the results of the competition will be made public; and
  • the person from whom or the place from where a copy of the competition rules may be obtained.

The promoter will be deemed to have satisfied these requirements if this information is available directly on the medium through which a person participates in the competition, on a document accompanying any medium or in any advertisement which is published, and which draws attention to the promotional competition.

Any provision in the rules of a promotional competition requiring a prize winner to:

  • permit the use of his image in marketing materials;
  • participate in any marketing activity; or
  • be present when the prize draw takes place, or the winners are announced,

without offering him the opportunity to decline such requirement, will be null and void.

The Regulations also require the promoter to ensure that certain specified professional persons oversee and certify the manner in which the competition was conducted and report his/her findings through the promoter’s internal audit reporting or validation and verification procedures. There is also a strict requirement regarding record keeping for a period of 3 years.

Non-compliance by promoters of the provisions of the CPA and its Regulations may result in the competition being declared void and in contravention of the CPA. The imposed offences under the CPA range from a fine or imprisonment (or both) for a period not exceeding 10 years or a fine or imprisonment (or both) for a period not exceeding 12 months or to both, depending on the severity of the contravention. In addition, administrative fines imposed by the Tribunal in respect of prohibited or required conduct is particularly onerous as such fines are set at the greater of 10% of the guilty party’s annual turnover during the preceding financial year or R1 million.

Conclusion

Promoters of promotional competitions and, in particular, competitions conducted using SMS or MMS technology, should ensure that they are aware of the various requirements and obligations placed upon them by the CPA. Great care should be taken when conducting competitions which will fall within the realm of the CPA as and from 31 March 2011, since the Commission and the Tribunal are likely to take a very dim view of promotional competitions which do not comply with the requirements of the CPA and its Regulations.

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 List:

  • The Lotteries Act 57 of 1997
  • The Consumer Protection Act 68 of 2008 and its Regulations
  • Naudé T & Eiselen S, Commentary on the Consumer Protection Act, Juta, 2014

THE ROLE OF A RECOGNITION AGREEMENT AT THE WORKPLACE

I have been approached by a trade union to enter into a Recognition Agreement with them. The trade union is of the opinion that it is entitled to be recognised at my business given that they represent a certain number of employees. Do I have to enter into discussions with the trade union?

A trade union will be successful in gaining recognition at a workplace if it can prove to the employer or to the CCMA that it has sufficient representation amongst the employees. The question is, what constitutes sufficient representation?

The Labour Relations Act (“LRA”) splits “trade union representivity” into two categories:

  1. Full representivity based on a simple majority of members employed at a workplace (50% + 1); and
  2. Partial representivity based on the concept of “sufficient” representation (20% – 50%).

If a trade union can prove that its members at the workplace represent a majority of all the employees employed at the workplace, the union will be legally entitled to recognition. That is, it will be entitled to organisational rights provided for by the LRA.

These rights are:

  • Access to the workplace by a union official to meet with its members and to conduct elections.
  • Deduction and pay over of union subscriptions.
  • Election of trade union representatives (i.e. shop stewards).
  • Leave for trade union activities.
  • Disclosure of information.

If a union does not have a majority but does become merely “sufficiently” representative it only has the right to access to the workplace, deduction of union subscriptions and leave for union activities. The concept of a “sufficiently representative trade union” is not defined by the LRA, which leaves it to the arbitrators at the CCMA to decide whether the union is sufficiently representative or not.

The LRA requires that:

  1. ln order to qualify for sufficient representation, the union must be registered with the Department of Labour.
  2. Arbitrators who are attempting to establish whether a union qualifies as sufficiently representative must, in terms of the LRA, consider:
    1. The need to avoid excessive numbers of trade unions in a workplace.
    2. The need to minimise the financial and administrative burden on the employer.
    3. The nature of the workplace.
    4. The nature of the rights sought.
    5. The nature of the sector (industry) into which the workplace falls.
    6. The organisational history of the workplace or any other workplace of the employer.

If a union approaches an employer for organisational rights, the parties are required to meet to try to conclude a collective agreement. Where such meeting(s) fails to result in an agreement, the union is required to refer the dispute to the CCMA for purposes of conciliation.

It is therefore crucial for employers to be able to assess at the outset whether the trade union concerned is sufficiently representative or not. This is because, if the answer is “yes”, there is no point in refusing recognition.

Why would an employer sign a Recognition Agreement?

The purpose of a Recognition Agreement is to enable the employer to keep a tight control over the activities of the union and of the shop stewards. Without such an agreement the shop stewards can run riot. That is, they can stir up trouble and squander valuable production time dealing with union issues instead of earning the money they are paid.

Shop stewards have several trade union duties that can take them away from their normal production work. These shop steward duties include:

  • Wage negotiations. This may involve the shop steward in leading or assisting with the negotiations and in numerous preparatory and feedback meetings.
  • Hearing employees’ grievances and negotiating in this regard with the employer.
  • Representing employees at disciplinary hearings. This does not only use up time at the hearing itself. It can necessitate the shop steward spending protracted periods of time preparing for the hearing and dealing with appeals.
  • Attending training courses and conferences arranged by the trade union for purposes of developing the shop stewards’ knowledge and skills.
  • Holding meetings with members regarding union issues.
  • Representing members at the CCMA or bargaining council.

The Recognition Agreement must only contain the aforementioned organisational rights and nothing more. Anything else which the union might suggest is subject to negotiation and the employer is not obliged to accept it.

The employer should never include anything that is a management prerogative. The employer should not hand over management to the union.

References:

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)

PROTEST: YOUR RIGHT AND RESPONSIBILITIES

The right to protest is enshrined in the Bill of Rights under Section 17 and reads as follows: “Assembly, demonstration, picket and petition. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The important part of this right is that this right is awarded to “everybody”, not just to citizens of South Africa.

Protesting is not just about government, but also serves as a channel of communication with other South Africans. Three things get unpacked in the South African Transport and Allied Workers Union and Another v Garvas and Others case, also known as the ‘SATAWU’ case.

Firstly, protesting serves as an instrument for democracy and people who are oppressed. Secondly, the foundational relevance of the right to protest was established. The important thing to remember when describing this right is that it affects other rights. The significance of this is that once you reduce the right, you are not only impacting on the right to protest, but rights like freedom of expression, association and other rights like these are impacted or taken away from you as well. Thirdly, self-actualisation; the act of fighting for something you are passionate about helps develop oneself. Everyone has the right to protest, even foreigners. There is a broad interpretation on the word “everyone”, as mentioned above.

The importance of this right is to prevent oppression and advocating for other democratic rights. This is a generous right which aims to stop brutal oppression. In the SATAWU case, the court held that once you have the intention to incite violence, the right falls away but if you don’t have this intention, Section 17 would be the defence to make use of.

If the protest involves more than 15 people, notice in terms of the Regulation of Gatherings Act is a requirement. No notice of a protest of a group of more than 15 people would constitute an illegal gathering and can lead to arrests being made. Section 17 of the Constitution grants one the right to protest. However, Section 12(1)(a) of the Regulation of Gatherings Act states that any person who organises and acts upon the gathering in respect of which no notice or no adequate notice was given, in accordance with Section 3, shall be guilty of an offence or shall be liable to a fine or imprisonment for a period not exceeding 1 year.

There are certain places protesters would require special permission from to be allowed to protest there. These places include protesting within 100 meters of Parliament, the Union Building or a Court Building. This means that one would not only give notice to these institutions but will actually need permission.

The most basic requirement for the limitation of the right is the law of general application, Section 36 of the Constitution. In other words, “people must know the law” and the right must be clear enough, accessible and precise so that the people who are affected by it can understand the extent of their rights and obligations. The second part of the Section 36 limitation is, that the “limitation is reasonable and justifiable in an open and democratic society”. This part can be interpreted in the sense that, even though the right is limited, it should be reasonable and not infringe more rights than what is necessary to achieve its purpose.

Reference List:

  • The Bill of Rights Handbook Fifth Edition by Iaim Currie & Johan de Waal
  • Mlungwana and Others v S and Another (A431/15) [2018] ZAWCHC 3; [2018] 2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC)
  • South African Transport and Allied Workers Union and Another v Garvas and Others (CCT 112/11) [2012] ZACC 13; 2013 (1) SA 83 (CC)
  • The Regulations of Gatherings Act 205 of 1993
  • The Constitution of 1996

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)

ARE FATHERS ENTITLED TO PATERNAL LEAVE?

Fathers could spend up to two weeks with their newborn babies, while adoptive parents and parents-to-be via surrogacy, could get up to 10 weeks of leave. This is due to the latest Labour Laws Amendment Bill 2017 (“amendment bill”), which was passed by the National Assembly in November 2017.

The current labour legislation provides that fathers who want to stay home with their newborn babies have to take family responsibility leave, which is limited to three days per annual cycle, or they must take their own annual leave for this purpose. They are only entitled to family responsibility leave once they have been employed for four months and work for at least four days a week. The current law also makes no provision for paternity leave for adoption parents or fathers-to-be via surrogacy. A mother is entitled to unpaid maternity leave of up to four months and she may also claim from UIF for 17-weeks during this period.

The position regarding paternal leave has, however, drastically changed since the end of last year. On 28 November 2017, the National Assembly passed the Labour Laws Amendment Bill. The amendment bill regulates the rights of fathers in taking paternal leave when their child is born. In terms of the amendment bill, fathers will be entitled to 10 days paternal leave on the birth of a child. In addition, the amendment bill provides for 10 weeks adoption leave for one parent when adopting a child under the age of two and ten weeks “commissioning parent leave” when an employee’s child is born by means of a surrogacy arrangement. The amendment bill also increases unemployment insurance benefits from 238 days to 365 days and increases maternity benefits to 66% of the earnings of the employee at the date of the application for unemployment insurance benefits.

Five things you need to know about the amendment bill:

  1. Fathers’ paternity leave could be up to two weeks

An employee who is a parent and not entitled to maternity leave, will now be entitled to 10 consecutive working days parental leave when that employee’s child is born. The Basic Conditions of Employment Act 75 of 1997 (BCEA) still provides that mothers are entitled to take maternity leave for up to four months.

  1. A father must have his name on the child’s birth certificate to qualify

Fathers must have their names on the newborn child’s birth certificate in order to apply for paternal leave. The purpose for this is to prevent dishonesty and ensure that the amendment bill cannot be used and abused.

  1. Adoptive parents and parents via surrogacy could get up to 10 weeks of parental leave

An employee who is an adoptive parent of a child less than two years old, is entitled to adoption leave of ten weeks consecutively. In the case of two adoptive parents, one of the employees is entitled to adoption leave and the other to parental leave. The same provision applies for parents-to-be via surrogacy.

  1. Family responsibility leave falls away

The father of a newborn may take three days family responsibility leave in terms of the BCEA –– but under the amendment bill, this no longer applies.

  1. The amendment bill might come into effect by June 2018

The amendment bill will be referred to the National Council of Provinces and if passed, will be submitted to the president for assent. This new amendment bill will bring South Africa in line with other countries, many of which offer between one to four weeks’ paternity leave.

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 List:

HOW BINDING ARE BODY CORPORATE FINES?


In an estate or sectional title scheme, it is challenging to ensure that everyone will stick to the conduct rules and to aid this, body corporates often fine the chancers. How far can the body corporates stretch their fining, and are these fines binding?

Each body corporate may choose what to impose formally in their code of conduct unless a rule is already part of the conduct rules in terms of the Sectional Titles Act. This is the only way the fines can be binding as enforceable, and they have to be reasonable and fair.

When fines are imposed, they cannot favour or benefit certain residents while leaving others out of mind. Substantially, they must serve the same purpose. The notification of a fine must be received by the owner or resident through writing. There is a correct way in which fines may be imposed:

  1. Complainants to lodge complaint

This must be lodged in writing or through an incident report to the trustees or the estate’s managing agent.

  1. Notice of particulars of the complaint

The owner and the tenant, or the resident, must be given a notice of the particulars contained in the complained as well as reasonable time to respond to the complaint. The resident/tenant must also be given enough information regarding the incident, including the rules that they may have broken.

  1. Second notice

Should the owner or resident not heed the first notice, a second notice may be issued mentioning the contravention is continuous or has been repeated. The transgressor must then be invited to a trustee meeting where they will be given a platform to present their case or defend themselves.

  1. The hearing before the fine

Before a fine is imposed, a hearing must have taken place. In the meeting, witnesses may be called to testify in favour of the transgressor and the transgressor may state their side of the story. Those who laid the complaint may also be cross-examined.

  1. Discussing evidence

Once the hearing is over, the trustees may then review the evidence presented to them and make a decision on whether or not to impose the fine.

If a fine is imposed, the amount should be reasonable, substantial and be proportionate to the purpose of the penalty.

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 BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

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:

MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani 2005 2 All SA 479 (SCA)

Ivan Israelstam “Disciplinary Hearings: When should external counsel be permitted?” – http://www.labourguide.co.za/most-recent/1295-lawyers-may-be-allowed-at-disciplinary-hearings

Molope v Mbha and Others (JR1950/02) [2005] ZALC 48 (1 February 2005)

The Right to representation – https://www.labourguide.co.za/discipline-dismissal/673-the-right-to-representation

HOW DOES THE PROCESS TO CLAIM UNDER COIDA WORK?

When dealing work related accidents, there still seems to be a lot of uncertainty relating to the correct reporting and recording procedures of work related injuries. The Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993 (“COIDA”) is the governing Act in South Africa that deals with occupational injuries and diseases.

The aim of COIDA is to provide for compensation in the case of disablement caused by occupational injuries or diseases, sustained or contracted by employees in the course of their employment, or death resulting from such injuries or disease; and to provide for matters connected therewith. COIDA prevents employees covered by the Act from suing their employers for damages in terms of common law.

Any employer with one or more employees must register with the Compensation Fund and pay annual assessment fees. Claims for employees employed in the mining and building industries must be referred to the relevant mutual associations. Claims by employees working for individually liable employers such as the state, parliament, the provincial authorities and local authorities – which have been exempted from making payments to the compensation fund – must be referred to the employer. The following steps, as set out below, should be followed when reporting to and claiming from the Compensation Fund in terms of COIDA:

  1. The accident must be reported when an employee injures himself or herself, out of and in the course of employment resulting in a personal injury for which medical treatment is required.

Written or verbal notice of an injury at work is to be given to the employer before the completion of the shift or end of the workday. Good practice on the side of the employer will be to make a list of all witnesses of the accident for the further investigation of the incident. An official form needs to be completed – known as the “W.Cl 2 Form – Notice of Accident and Claim for Compensation”. This form should be completed whenever an employee has an accident out of or in the course of employment leading to personal injury, medical treatment or death. It is the employer’s duty to submit the W.Cl 2 form, within a period of 7 days after the accident to the Compensation Commissioner.

After the completion of the form, the employer must send the form with a certified copy of the employees identity document and the first medical report (“W.Cl 4 form”) to Compensation Commissioner. A medical practitioner should complete the W.Cl 4 form, stating the seriousness of the injury, as well as the time period the employee is likely to be absent from work. Once completed, the medical practitioner sends it to the employer who forwards same to the Commissioner. Employees are not responsible for the payment of medical costs in this regard, however, if an employee requests a second medical practitioner’s opinion, he/she will be liable for the payment of medical costs.

  1. After the Compensation Commissioner receives the abovementioned documents, he/she will then register the claim and forward a postcard (“W.Cl.55”) to the employer. A claim number is provided on the postcard and this number should be used for all paperwork relating to a claim. When the first doctor’s report has been submitted with the accident report, the Compensation Commissioner will consider the claim and make a decision.

After the Compensation Commissioner has considered the claim a postcard (“W.Cl.56”) will be sent to the employer. The W.Cl.56 postcard, will only be used by the Compensation Commissioner when liability is accepted for payment of the claim. Where a W.Cl.56 is not issued, it usually indicates that the Compensation Commissioner has not accepted liability for any payment – in this instance the employee may have a claim against the employer. If the employee, however, disagrees with the decision of the Compensation Commissioner, an appeal may be lodged by the employee within 90 days by submitting form “W929” to the Compensation Commissioners’ office.

  1. If the work-related injury continues for a long time and where the employee is prolonged absent from work, the medical practitioner must send a progress medical report (“W.Cl 5”) to the Compensation Commissioner. The progress report should be submitted monthly until the employee’s condition is fully stabilised. This informs the Compensation Commissioner of the time period the employee is absent work.
  1. Once the medical practitioner handling the case is satisfied that the employee is fit to return to work, the practitioner will issue a final report that the employee is fit to return to work; or that the employee’s injury resulted in him/her being permanently disabled.  The medical practitioner must forward this report to the employer who will sends it to the Compensation Commissioner.
  1. When the employee resumes work, a resumption report (“W.Cl 6”) must be completed and submitted to the Compensation Commissioner. Only after every one of these forms has been submitted to the Compensation Commissioner, will payment be made of all of the medical and related disbursements, where after the case will be closed.

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:

The Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993

The South African Labour Guide

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.

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