May employees picket in support of a protected strike?

In terms of section 69 of the Labour Relations Act 66 of 1995 as amended (LRA), only a registered trade union has the right to authorise a picket (as provided for by the LRA) by its members and supporters for purposes of demonstrating peacefully:

• in support of any protected strike; or
• in opposition to any lock-out.

Where can an authorised picket be held?

An authorised picket may be held:

1. in any place to which the public has access, but outside the premises of the employer; or
2. inside the premises of an employer, with the permission of the employer.

An employer may not unreasonably refuse permission for lawfully striking employees to picket inside its premises and/or use facilities such as toilets.

 

Picketing rules

Picketing rules regulate the conduct of those engaged in the picket and set out the details of where and when the picket may be held, who will be appointed to control the picket, etc.

Where picketing rules have not been established, the parties may either request the Commission to help them to reach an agreement on the picketing rules, or in the absence of such rules or application, the Commission must establish the picketing rules.

Where the Commission establishes the picketing rules, the rules may also provide for picketing in a place which is owned or controlled by a person who is not the employer, provided that such person has had an opportunity to make representation to the conciliator before the rules are determined, for example, a shopping mall.

 

Urgent application for picketing rules
The LRA recognises two situations where a registered trade union may make an urgent and direct application to the CCMA (not a bargaining council) to determine picketing rules. These are as follows:

1. where the employer has not complied with an application to restore terms and conditions of employment that the trade union alleges have been changed unilaterally (section 64(4) of the LRA); and
2. where the employer has given notice of an intention to commence or has already commenced an unprotected lock-out.

 

What if there is a dispute about the right to picket or the content of picketing rules?
A dispute about any breach of the right to picket or that the content of the picketing rules is not being followed, may be referred to the CCMA for conciliation. If the dispute remains unresolved, it may be referred to the Labour Court.

Can employees take part in protest action to promote or defend socio-economic interests of workers?

 

Employees (other than those employed in essential or maintenance services) may take part in protest action to promote or defend socio-economic interests of workers during work hours provided certain legal conditions have been met.

Section 77 of the Labour Relations Act 66 of 1995 (LRA) provides for employees to take part in these protests and protects them from dismissal, on condition that:

• A registered union or trade union federation calls the protest action;
• The registered union or trade union federation has served notice on the National Economic Development and Labour Council (NEDLAC) providing the reasons and the nature of the protest action;
• NEDLAC regards the matter as one of socio-economic interest, and suitable for consideration;
• NEDLAC has had an opportunity to consider the matter;
• At least 14 days before the protest action is scheduled to commence, the registered trade union or trade union federation notifies NEDLAC of its intention to proceed with the protest action.

 

The provisions that apply to employees who embark on a protected strike will apply to employees who take part in protest action, namely:

• They are protected from dismissal;
• If an employer dismisses an employee for participating in lawful protest action, such a dismissal is automatically unfair and the employee may refer the dismissal to the Labour Court after conciliation by CCMA or bargaining council;
• All the usual rules for misconduct still apply and are actionable during protest action;
• An employer is entitled to employ replacement or “scab workers” during a protest action (unless part or the whole of the employer’s services has been designated as a maintenance service);
• An employer does not have to pay an employee his/her wages, salary or benefits during a protected strike; and
• If the employee’s accommodation and food form part of his/her wages (this is known as payment in kind), the employer may continue to provide the employee with accommodation and food, if this is requested by the employee, but may reclaim the cost of this after the protest action.

What are organisational rights?

 

What to do when a union wants to organise in your business

 

Organisational rights are rights that a registered trade union may exercise in a workplace. The purpose of organisational rights is to enable unions to organise and represent workers at their workplaces.

 

The Constitution of the Republic of South Africa, 1996 gives every worker the right to form and join a trade union and to participate in its activities. Organisational rights support a system of collective bargaining which is where a union (or unions) engage or negotiate with the employer (or employers) over terms and conditions of employment and other matters of mutual interest.

 

What are the different organisational rights?

 

The Labour Relations Act 66 of 1995 (LRA) identifies the following five organisational rights that may be agreed or granted under different circumstances:

• Trade union access to the workplace (section 12)
  An office-bearer or official has the right to enter the employer’s premises in order to recruit members and serve their interests, and for members to vote at the employer’s premises in any election or ballot.

• Deduction of trade union subscriptions or levies (section 13)
  The union may require an employer to make authorised deductions of union subscription or levies from employees’ wages and pay them over to the trade union. This is sometimes known as ‘union stop orders’.

• Trade union representatives (section 14)
  Members of a registered trade union may elect representatives (shop stewards) at the workplace, and those elected may:
  • represent employees in grievance and disciplinary hearings;
  • monitor employer compliance with employment law and collective agreements and report any contraventions; and
  • take reasonable time off, with pay, to perform or to be trained in their functions.

Note, a trade union representative or shop steward is an employee of the employer. The right to elect trade union representatives only applies to a registered trade union, or two or more unions acting jointly, that have as members the majority of employees employed by the employer in the workplace (known as ‘majority rights’).

• Leave for trade union activities (section 15)
  An employee who is an office-bearer of the union, has the right to take reasonable leave during working hours in order to perform the functions of that office.
• Disclosure of information (section 16)
  This is an example of a ‘majority right’ as discussed above. The union may require the employer to disclose all relevant information for the union to engage effectively with the employer in consultation or collective bargaining.

 

 

What is required for trade union representativeness?

 

Representativeness is the degree of representation a union has in a workplace. The Labour Relations Act identifies:

• Majority representativeness is easy to define: it is where the union has 50 plus 1 per cent of the employees in the workplace as members. Majority representativeness is needed for exercise of the right to elect trade union representatives and the right to seek disclosure of information.
• Sufficient representativeness is harder to identify. The number of members is relevant and the union must have sufficient presence in the workplace to warrant the granting of organisational rights. Sufficient representativeness is needed for access, stop order deductions and leave for trade union activities.

 

The LRA does not define the term “sufficient representivity”, but lists a number of factors that are taken into account to determine whether a union is sufficiently representative. These factors are:

• the nature of the workplace;
• the nature of the organisational rights that the union seeks to exercise;
• the nature of the sector in which the workplace operates;
• the organisational history at the workplace; and
• the composition of the workplace taking into account the extent to which there are employees assigned to temporary employment services, employees employed on fixed term contracts, part time employees or employees in other categories of non-standard employment.

 

Most representative: a commissioner in arbitration proceedings may grant a registered trade union that does not have majority representation at the workplace, similar rights conferred to a majority union, provided that it is sufficiently representative and that certain rights (in respect of trade union representatives and to disclosure of information) have not been granted to any other union in that workplace.

 

Significant interest: a commissioner in arbitration proceedings may grant a registered trade union or two or more registered trade unions acting jointly, who do not have the required number of members as set out in a collective agreement the same rights as a sufficiently representative union, irrespective of the threshold requirements of a collective agreement, provided they represent a significant interest (e.g. rock drillers in a mining company or pilots working for an airline) or a substantial number of employees in the workplace and the commissioner has applied his/her mind to the legal provisions concerning the granting of organisational rights.

 

How does a union get organisational rights?

 

Often, employees employed by large employers are unionised. However, it is not unusual for a smaller business to be approached by a union demanding union or organisational rights.

The procedure to get organisational rights requires that the registered trade union notifies the employer in writing that it seeks to exercise one or more of the organisational rights in a workplace. This notice must be accompanied by the union’s certificate of registration and must specify:

• The workplace in respect of which trade union seeks to exercise these rights;
• The representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative union, and
• The rights that the trade union seeks to exercise, and the manner in which it seeks to exercise these rights.

 

Within 30 days of receiving the notice the employer must meet the registered trade union and try to conclude a collective agreement on how the trade union will exercise its rights. A collective agreement is simply a written agreement between one or more registered trade unions on the one hand and one or more employers on the other. If there is agreement on the rights to be granted, a collective agreement on organisational rights should be entered into in writing.

 

If a collective agreement is not concluded either the union or the employer may refer an organisational rights dispute to the CCMA. The CCMA will attempt to resolve the dispute through conciliation.

 

What happens if conciliation at the CCMA fails to resolve an organisational rights dispute?

 

If the dispute remains unresolved between the employer and the registered trade union, either party may request arbitration or, if the dispute concerns section 12 to 15 rights, the employees have the option of exercising the right to strike provided the proper procedures are followed.

If the union has given notice of the proposed strike, it may not exercise the right to refer the matter to arbitration for a period of 12 months from the date of that notice.

 

What happens at the arbitration of an organisational rights dispute?

 

The commissioner will hear evidence and argument to determine the level of representativeness of the union in the workplace. In particular, the commissioner will consider the completed stop order deduction forms. In order to determine the membership or support for the union the commissioner may –

• Make any necessary enquiries;
• Where appropriate, conduct a ballot of the relevant employees; and
• Take into account all other relevant information.

 

The employer must cooperate with the commissioner and make available all information and facilities necessary for this purpose.

 

Before ordering organisational rights, the commissioner must take into account the need to minimise the number of unions in a single workplace and the need to minimise the financial and administrative burden on the employer, as well as all the factors identified above. These are particularly important in small business, where the employer’s administrative capacity is limited.

 

Sometimes there is a dispute about what constitutes the workplace, in which case the commissioner will need to determine this, taking into account whether the workplaces are independent of each other in terms of their size, function and organisation.

 

What if a union wants to exercise organisational rights where another union controls access?

 

If the union wants to exercise organisational rights at a workplace where another union controls access to the workplace, that holder of the organisational right must be given an opportunity to participate in the arbitration proceedings.

 

Where a union does not have a majority in the workplace, it may be granted section 14 and section 16 rights if it is the most representative and it already enjoys sections 12, 13 and 15 rights.

 

Note: Registered trade unions who are parties to a bargaining council automatically have the rights contemplated in sections 12 and 13 in all workplaces within the registered scope of the council regardless of their representativeness in any particular workplace.

 

An employer who alleges that a trade union is no longer representative may apply to the CCMA to withdraw any organisational rights conferred by the Act.

 

How should organisational rights be exercised?

 

Not one of the organisational rights is absolute. Each is qualified by what is reasonable in the circumstances, particularly taking into account what is reasonable for a smaller business given its limited capacity and resources. The qualifications are as follows:

 

• Trade union access to the workplace
  Meetings between the union and its members at the employer’s premises should take place outside the employer’s working hours, unless agreed to otherwise. The time and place must be reasonable to safeguard life or property and to prevent the undue disruption of work.
• Deduction of trade union subscriptions or levies
  • Deductions should be paid over to the union within seven days.
  • An employee may revoke authorisation of deductions by giving the employer and the trade union one month’s written notice.
  • The employer is entitled to manage administration in a practical manner and implement a reasonable notice period, or restrict multiple changes within a certain period.
• Trade union representatives
  The number of trade union representatives is governed by the following formula:
  • if there are 10 members of the trade union employed in the workplace, one trade union representative;
  • if there are between 11 and 50 members of the trade union employed at the workplace, two trade union representatives.

 

Shop stewards are entitled to take time off with pay to perform or to be trained in their functions provided there is proper notice and minimum disruption to work. In a smaller business this will need to be limited based on the business’ ability to carry on operations in the absence of the person.

• Leave for trade union activities
  • The union and the employer may agree to the number of days leave, the number of paid days leave and the conditions attached to the leave.
  • The amount of leave must be reasonable relative to the capacity of the employer to grant leave.
  • Paid and unpaid leave may be considered, as well as working in time if practical.
• Disclosure of information
  An employer is not required to disclose information:
  • that is legally privileged;
  • that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of court;
  • that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
  • that is private or personal relating to an employee, unless that employee consents to the disclosure of that information.

 

Disputes about disclosure of information can be referred to the CCMA for arbitration. If at arbitration a commissioner decides that the information is relevant, but that it is confidential the commissioner must balance the harm that disclosure is likely to cause to an employee or employer against the harm that failure to disclose is likely to cause to the union.

What is an Unfair Labour Practice?

Section 23 of the Constitution of the Republic of South Africa, 1996 states that everyone has the right to fair labour practices.

Not everything that an employer does that seems unfair to an employee will constitute an “unfair labour practice” as specifically defined in the Labour Relations Act 66 of 1995 (the LRA). There is a “closed list” of unfair labour practices and any unfair conduct of an employer which does not expressly and specifically feature in that list cannot be classified as an “unfair labour practice”.

In terms of section 186 (2) (a) – (d) of the LRA, an unfair labour practice can only be any unfair conduct of an employer concerning:

• Promotion;
• Demotion;
• Probation;
• Training;
• The provision of benefits;
• Unfair suspension;
• Unfair disciplinary action other than dismissal;
• A failure to reinstate / re-employ a former employee in terms of any agreement to do so;
• An occupational detriment other than dismissal, in contravention of the Protected Disclosures Act 26 of 2000.

 

In addition, section 4(8) of the National Minimum Wage Act 9 of 2018 states that it is an unfair labour practice for an employer to unilaterally alter hours of work or other conditions of employment in connection with the implementation of the national minimum wage.

An unfair dismissal can never be an unfair labour practice.

Unfair labour practices focus on what the employer does in respect of the employee’s working life, during the course of the employment relationship. It is not enough that the employee alleges an intention on the part of the employer to do something – the unfair act must already have taken place. If the employment relationship ended (for whatever reason) before the alleged unfair act took place, the employee cannot claim that he or she has been subjected to an unfair labour practice.

An employee cannot commit an “unfair labour practice” against an employer.

In terms of section 191 of the LRA, if there is a dispute at the workplace regarding an unfair labour practice, an employee may lodge a dispute with the CCMA or the relevant bargaining council. The employee should first attempt to deal with the matter at the workplace by lodging a grievance but bearing in mind the time limit of 90 days from the date of commencement of the unfair labour practice, for referral to the CCMA or bargaining council.

Unfair Labour Practice: Promotion

As a general rule, an employer may appoint or promote employees as it deems fit.

In deciding whether a dispute involves a promotion one has to compare the employee’s current job with the job or post applied for to determine whether promotion (or in some cases demotion), is involved. Some of the factors that should be taken into account are-

a) differences in remuneration levels;
b) differences in fringe benefits;
c) differences in status;
d) differences in levels of responsibilities;
e) differences in levels of authority and power; and
f) differences in the level of job security.

A promotion will only be unfair if the employer acted unreasonably, in a discriminatory manner or by following an unfair procedure in exercising its discretion to promote an employee.

The managerial prerogative to promote is generally respected unless bad faith or an improper motive such as discrimination is present. The employer must come to a decision to promote based on fair criteria and in a fair manner.

Examples of unfairness in promotion are: The employee was unfairly denied an opportunity to compete for the post; the discretion to promote was exercised arbitrarily, unjustifiably, unreasonably or in a biased manner.

Examples of situations which do not amount to unfair labour practices (promotion):

• A transfer (at the same level) from one department to another is not a promotion;
• job-grading disputes;
• disputes about notch increases;
• acting in a higher position does not automatically create a right to be promoted to that position; and
• appointing an outsider to a position and not promoting a current employee.

Unfair Labour Practice: Demotion                                  

A demotion occurs if the change to the employee’s terms or conditions of employment is such that they result in a material reduction of the employee’s remuneration, responsibilities or status. A demotion does not occur merely because the employee is placed in a post involving slightly different work, especially when that work falls within the scope of the employee’s duties. The mere fact that an employee’s title is changed, is not necessarily proof of a demotion; something more is required. The change in the employee’s position in the organisation must also entail a loss of benefits or a lowering of the employee’s status.

An employer may demote an employee, provided that this is done fairly and after consultation with the employee concerned, for a valid reason.

Unfair Labour Practice: Probation

An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The period of probation must be determined in advance and it must be for reasonable period. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment. An unreasonably long period of probation may constitute an unfair labour practice.

An employer may extend the period of probation for a reason that relates to the purpose of probation. The period of extension should not be longer than necessary to achieve its purpose. Before extending the probationary period the employer must give the employee an opportunity to make representation, with the assistance of a representative if required.

Unfair Labour Practice: Training                                                             

This type of unfair labour practice relates to inconsistency, arbitrariness or lack of due process which alienates or infringes the rights of the employees, in respect of training to which employees have a right based on a contract. It does not relate to a mere wish or demand to be trained; however, an employee may
claim unfair treatment if not given access to training that is made available to other employees, thus preventing him/her from qualifying for advancement..

Unfair Labour Practice: Provision of benefits

Falling within the scope of this term is unfair conduct of an employer related to the provision of benefits, for example, discretionary bonuses, housing allowances, medical aid, retirement benefits and other allowances.

What is a benefit?

A benefit must be of a material nature, have monetary value for the employee and must constitute a cost to the employer. A benefit is therefore an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. It refers to existing advantages or privileges to which an employee is or should be entitled.

The Labour Appeal Court in Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2013] 5 BLLR 434 (LAC), explains that a benefit includes a right or entitlement to which the employee is entitled (ex contractu or ex lege [through contract or by law] including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion.

Some examples of benefits recognised by the Labour Courts, to be read within the context of particular cases, include:

• A discretionary bonus / discretionary performance bonus;
• A travel allowance (other than if it is paid out only to reimburse the employee for expenses incurred during the course of carrying out his or her duties);
• An early retirement scheme;
• The practice of giving an employee a full day’s leave in exchange for overtime worked for a lesser period.

 

What is not a benefit?

 

The following are examples of what is not considered to be a benefit:

 

• Wages;
• remuneration;
• a standby allowance;
• accumulated leave;
• a claim for an increase in salary;
• an acting allowance.

 

Generally, where an employer has exercised its discretion in refusing the employee access to a benefit, the fairness of that decision could be questioned and a dispute declared relating to an unfair labour practice concerning the provision of the benefit.

A dispute of interest (where an employee does not have a right to something in terms of a contract, legislation or a collective agreement) where employees simply want to improve existing benefits or acquire a new benefit, should be dealt with in terms of the collective bargaining structures and negotiation and cannot be viewed as unfair labour practices relating to provision of benefits.

An employee cannot use the unfair labour practice route to establish new contractual terms.

A subsistence and / or travel allowance does not constitute a benefit, if it is paid out only to reimburse the employee for expenses incurred during the course of carrying out their duties.

Generally, where an employer has exercised its discretion in refusing the employee access to a benefit, the fairness of that decision could be questioned and a dispute declared relating to an unfair labour practice concerning the provision of the benefit.

A dispute of interest (where an employee does not have a right to something in terms of a contract, legislation or a collective agreement) where employees simply want to improve existing benefits or acquire a new benefit, should be dealt with in terms of the collective bargaining structures and negotiation and cannot be viewed as unfair labour practices relating to provision of benefits.

An employee cannot use the unfair labour practice route to establish new contractual terms.

 

Unfair Labour Practice: The unfair suspension of an employee

Suspension envisaged under this type of unfair labour practice is where it has been used as a preventative, precautionary measure, pending an investigation. Suspension without pay as a disciplinary measure falls under the heading of disciplinary action short of dismissal.

The precautionary suspension of an employee on full pay pending a disciplinary enquiry is not meant to be punitive. No misconduct has been proved. The suspension is normally imposed to conduct an investigation and to ensure that the investigation is not compromised and that it is completed in time. An employee should not be suspended unless there are grounds for believing that the employee has committed serious misconduct and there is good reason for excluding the employee from the workplace. Employers should refrain from hastily resorting to suspending employees when there is no valid reason to do so. Suspensions have a negative impact on the affected employee and may prejudice his/her personal and/or professional reputation, advancement and job security. Valid reasons for suspension include a reasonable apprehension that the employee will prejudice the investigation, for example by attempting to influence potential witnesses, or where there is a concern that the employee may cause harm to the employer’s business.

There is no legal obligation, unless so stated in a contract of employment, collective agreement or official employer policy, that an employee is entitled to be heard before s/he is suspended in such circumstances.

An employee is entitled to a speedy and effective resolution of a dispute. An employer must not abuse the process of precautionary suspension. The investigation must be concluded within a reasonable time, taking all the relevant factors into consideration and the employee must be informed without undue delay about the process that the employer is initiating. The disciplinary hearing must be initiated within a reasonable time of the employee being suspended.

An employee is entitled to full pay during the period of this type of suspension.

Unfair Labour Practice: Any other unfair disciplinary action short of dismissal

Examples of unfair disciplinary actions short of dismissal are unfair warnings, unfair suspension without pay (imposed as a disciplinary sanction) and unfairly imposing short time on an employee as a disciplinary measure and not based on operational requirements.

Suspension without pay is a permissible penalty where dismissal would have been justified, were it not for mitigating factors. If the employee does not accept the sanction as an alternative to dismissal, the employer may proceed with the dismissal of the employee.

Unfair Labour Practice: A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement

This form of unfair labour practice requires the existence of an agreement that imposes an obligation on the employer to re-employ an employee. Such agreement usually requires the employer to rehire a dismissed employee if and when “suitable” vacancies arise. Whether a vacancy is “suitable” depends on the facts of each case. It may be unfair to hire a new employee instead of rehiring a previous employee in terms of an agreement.

 

Unfair Labour Practice: An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act 26 of 2000 (PDA), on account of the employee having made a protected disclosure defined in that Act.

This form of unfair labour practice is designed to protect “whistle-blowers” who disclose information which show the employer’s involvement in, for example, a criminal offence, failure to comply with the law, endangering an employee’s safety or the environment, or discriminatory practices.

It deals with actions taken by an employer against an employee, amounting to an “occupational detriment”, other than dismissal, in circumstances where the employee believes that in disclosing the information, s/he deserves protection and the employer should not have taken action against him/her.

Note that the protection extends to individuals who currently or previously worked for the employer; also independent contractors, consultants, agents and those rendering services to a client whilst being employed by a temporary employment service (labour broker).

An ‘occupational detriment’ occurs where an employee makes a protected disclosure and the disclosure results in that employee:

• being subjected to any disciplinary action;
• being dismissed, suspended, demoted, harassed or intimidated;
• being transferred against his or her will;
• being refused a transfer or promotion;
• being subjected to a term or condition of employment or retirement which is altered or kept altered to his/her disadvantage;
• being refused a reference, or being provided with an adverse reference, from his/ her employer;
• being denied appointment to any employment, profession or office;
• being threatened with any of the actions referred to above; or
• being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

 

NOTE: In the amendments to the PDA on 2 August 2017, two new administrative obligations were created:

1.    Employers must formulate and document internal whistle-blowing procedures, and must bring this to the attention of all employees; and
2. employers are required to respond in writing to a disclosure within 21 days and keep the employee informed of steps being taken in relation to investigating the matter.

What is the nature and purpose of severance pay?

 

• Retrenchment is a “no-fault” type of dismissal arising from the economic, technological, structural or other similar needs of the employer rather than the conduct or performance of the employee. It is therefore fair that the employer compensates the employee for the loss of employment.
• Severance pay can be described as “bridging finance” to assist a retrenched employee while seeking alternative work.
• Severance pay is linked to an employee’s rate of remuneration and length of service.
• Section 41 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) prescribes that the minimum amount of severance pay that an employer is obliged to pay is the equivalent of one week’s remuneration for each completed year of continuous service.
• An employer may agree to increase it to two weeks or three weeks’ severance pay. Such an agreement is often found in a collective agreement, contract of employment, or may be agreed between the consulting parties during the retrenchment consultation process.

 

Entitlement to severance pay

 

• Every retrenched employee has a right to be paid severance pay by the employer if s/he has completed at least one year of continuous service with the employer prior to retrenchment.
• An employee who unreasonably refuses an offer of alternative work by the employer instead of retrenchment, loses his/her entitlement to claim severance pay.
• The BCEA also permits an employee who had a break in service of less than 12 months with the same employer, to claim severance pay including the years of service before the break. The claim is good as long as the break was not longer than 12 months and provided the employee has not already received severance pay for the period of service before the break.
• Employees cannot insist that they be retrenched to claim severance pay if the employer offers them reasonable alternative jobs to avoid their retrenchment. Similarly, employees who accept alternative employment cannot claim severance pay on the basis that the new position is less favourable than the previous one.

 

Entitlement to payment on the expiry of a fixed-term contract contemplated by section 198B(4)(d) of the Labour Relations Act exceeding 24 months where the employer employs 10 or more employees

 

• Section 198B of the Labour Relations Act 66 of 1996 (LRA) provides that an employee that earns below the threshold as set out in section 6 of the BCEA, employed on a fixed-term contract on a specific project for a period exceeding 24 months, depending on the terms of any applicable collective agreement, will be entitled to severance pay in an amount equal to at least 1 week’s remuneration for each completed year of continuous service on expiry of the fixed-term contract.
• Employees will not be entitled to any severance pay should the employer offer or secure reasonable alternative employment with a different employer, before the expiry date of the fixed-term contracts, if that new employment commences at the expiry date of the contracts and is on the same or similar terms.
• Should a collective agreement provide that employees employed on fixed-term contracts for more than 24 months will not be entitled to any severance pay, such clause will supersede the provisions of section 198B of the LRA.

 

What is remuneration?

 

• The BCEA uses the word “remuneration”, not pay, wage or salary because the payment is more than simply the normal take-home wage of an employee.
• The Minister of Employment and Labour has defined the word “remuneration” for the purpose of calculating leave pay, notice pay and severance pay.
• The definition includes the value of any benefits the employee received, such as accommodation, payments in kind – g. free canteen lunches, the employer’s contribution to any medical aid, pension, provident fund, death or funeral benefit schemes or similar schemes, shift allowances, car allowances, but excludes any payment to enable the employee to travel to and from work, relocation allowances, tips, gifts, entertainment allowances or education/schooling allowances, etc.

 

How is severance pay calculated?

 

• The one week’s severance pay per completed year of continuous service is the minimum amount the employer must pay by law. This is based on the gross (before tax) remuneration of the employee.
• To calculate one week’s remuneration, the following formula is applied: monthly remuneration divided by 4.33 equals the weekly remuneration.
• Where an employee’s remuneration or wage changes significantly from time to time, such as when an employee earns commission, payment to that employee must be calculated by reference to the remuneration received during the preceding 13 weeks (section 35(4)(a) of the BCEA).
• Special tax rates apply to severance benefits (see sars.gov.za). To qualify for this, the employer must apply to the South African Revenue Services (SARS) for a tax directive before the severance benefit is paid to the employee.

Who may issue and sign medical certificates?

 

Section 23 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) deals with proof of incapacity and states:

 

“(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

 

(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”

 

From this section of the BCEA it is clear that there are two requirements in order for a medical certificate to be a valid medical certificate:

• It must state that the employee was unable to perform his/her normal duties as a result of illness (or an injury) and must be based on the professional opinion of the medical practitioner.
• The second requirement is that the certificate must be issued by a medical practitioner.

 

In other words, a certificate that states that the practitioner “saw the patient” or “was informed by the patient” is not considered to be a valid medical certificate since the practitioner did not declare in his/her professional opinion that the employee was unable to perform his/her normal duties as a result of illness (or an injury). Such certificates are merely an indication that the practitioner saw the patient, for example a check-up, or that s/he was informed that the patient was unfit for duty.

 

Some contracts of employment or specific conditions may also require that an employee produce a medical certificate in certain circumstances, for example, if the employee has been warned about the abuse of sick leave.

 

What is the definition of a medical practitioner?

 

A medical practitioner is described in the definitions of the Basic Conditions of Employment Act as:

 ‘‘. . . . a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974”

 

In terms of this Act, the following professionals are considered to be medical practitioners:

• Medical practitioners (doctors) that are registered with the Health Professions Council of South Africa;
• Dentists that are registered with the Health Professions Council of South Africa;
• Psychologists with a master’s degree in educational, counselling or clinical psychology that are registered with the Health Professions Council of South Africa.

 

The above mentioned Act makes reference to the Allied Health Service Professions Act 63 of 1982.

 

Practitioners mentioned in this Act must be registered with the Allied Health Service Professions Council in order to issue medical certificates. Employers must accept medical certificates from such practitioners as proof of incapacity in terms of the Basic Conditions of Employment Act.

 

A practitioner is defined in terms of the aforementioned Act as a person registered as an:

• Acupuncturist;
• Ayurveda practitioner;
• Chinese medicine practitioner;
• Chiropractor;
• Homeopath;
• Naturopath;
• Osteopath;
• Phytotherapist; or
• Unani-tib practitioner.

 

Proof or registration may be requested by the employer.

 

In terms of case law, a certificate from a traditional healer may also be acceptable. The World Health Organisation defines traditional medicine as follows: “It is the sum total of the knowledge, skill, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not,
used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.” (https://www.who.int/health-topics/traditional-complementary-and-integrativemedicine#tab=tab_1 Date of access: 28 March 2021).

The Supreme Court of Appeal (SCA) in Kivietz Kroon Country Estate (Pty) Ltd v Mmoledi & others [2014] 3 BLLR 207 (SCA); [2014] 35 ILJ 209 (SCA) (29 November 2013), stated that courts (also applicable to employers) should evaluate the sincerity of the person’s belief in religious doctrine or cultural practices as opposed to that employee using such beliefs, cultural practice, or religious doctrine for ulterior motives. It is not the role of the Courts or of employers to “evaluate the acceptability, logic, consistency or comprehensibility of the belief.” Thus, employers are called to manage situations where employees rely on
alternative forms of treatment such as that provided by Traditional Healers with sensitivity and to rather seek advice when unsure of how to manage situations purportedly arising from a religious doctrine or cultural practice or belief.

What is the difference between managing conduct and capacity at the workplace?

 

The main distinction between managing misconduct and capacity at the workplace is that while both entail a breach on the part of the employee with regard to the fulfilling of their employment obligations, misconduct involves an element of culpability or blameworthiness where the employee intentionally or negligently broke a workplace rule. With incapacity, culpability and blameworthiness are not alleged, but there is a lack of ability on the part of the employee.

 

The Schedule 8 to the Labour Relations Act 66 of 1995, the Code of Good Practice: Dismissal (the Code), deals with two broad types of incapacity – poor work performance and illness or ill health. Incapacity, implies that the employee’s poor work performance is due to conduct which is neither intentional nor negligent. Incompatibility is a third category of incapacity that is not referred to in the Code.

 

In some instances, employers may feel that an employee failed to reach the expected performance standard precisely due to some sort of intentional or negligent behaviour on his or her part.  This is where misconduct and incapacity may become a bit blurred and it is important for employers to be very clear on the perceived cause of the problem at hand so as to follow the correct path towards managing the problem.

 

Incapacity

 

A good example of incapacity (poor performance) is a salesperson that may have a perfectly clean disciplinary record: s/he is always on time and does his/her work diligently. Despite their best efforts, the salesperson just does not reach his/her monthly sales targets due to their target sales audience having cut its spending patterns because of the depressed state of the economy. Quite simply, the employee may be a poor salesperson, but they may be an excellent administrator.

 

The lack of fault on the part of the employee is perhaps the main reason why employees are not disciplined for poor work performance – an employee cannot be disciplined for something he or she cannot be blamed for. However, that inability to perform remains a ground upon which the employment relationship may be terminated as the employee is unable to do the job.

 

Incapacity due to poor performance requires a corrective, performance managed approach (a poor performance procedure) prior to dismissal. Prior to dismissing an employee for ill health or injury, a separate procedure must be followed to determine the extent of the ill health or injury and the extent to which the employer is able accommodate the employee.

 

Misconduct

 

An example of misconduct is when the salesperson fails to meet the sales targets due to persistent late coming and non-attendance at work without a valid reason.

 

The essence of misconduct lies in the fact that the employee breached a rule or standard governing conduct in the workplace (or conduct relevant to the workplace). The employee is held to blame for his/her wrongful conduct and may be disciplined by the employer.

 

Misconduct includes deliberate or negligent conduct. Negligence, in the context of the workplace, means that the employee failed to do what a reasonable employee in his or her position should have done. The employee’s acts (or, more usually, omissions) are measured against an objective standard – to see if the employee’s conduct differs from the standard expected from another employee in the same position.

 

How does an employer distinguish between the misconduct and incapacity?

 

According to the Labour Court, the distinction between poor performance and misconduct (in the form of negligence) can be determined by asking two simple questions:

 

• Did the employee try, but could not?
• Could the employee do the work, but did not?

 

If the answer to the first question is ‘yes’ then one is probably dealing with a case of incapacity or poor performance, because an employee that honestly seeks to achieve what is expected of him/her, but is unable to do so is incapacitated and is not behaving wilfully or indifferently.

 

If the answer to the second question is ‘yes’, then it is probably a case of misconduct, as this would be a situation where the employee is fully able to do what is required, but failed to do so. Such failure could therefore only be because of indifference or wilfulness or failure to care (negligence).Note however that it is always important to gain a proper understanding of why the employee failed to do what was required of him/her.

Sources of law that govern the employment relationship

 

There are a variety of sources of law in South Africa that impact on the world of work.

The legal principles applicable to the employment relationship in this country come from a variety of sources. These include, the common law, international, law labour legislation, workplace level collective agreements, bargaining council collective agreements and the contract of employment. All of these are subject to the principles contained in the Constitution.

 

If one has to create a hierarchy of the sources (an order of the most important) referred to above, it would be as follows:

1. Constitution;
2. Labour legislation, including determinations made by the Minister of Employment and Labour;
3. Collective agreements concluded in bargaining councils;
4. Collective agreements concluded outside of bargaining councils;
5. Contract of employment; and
6. The Common Law.

 

The Constitution

 

• The Constitution of South Africa is the supreme law in this country.
• It provides the framework against which all other law (legislation and the common law) must be measured.
• All laws must be in line with the requirements of the Constitution or run the risk of being cancelled for being seen to be unconstitutional.
• All laws must also be interpreted and applied in a way that is in the line with the Constitution. For example, if there are two possible interpretations of the law, one giving effect to constitutional rights and one not, the interpretation giving effect to the Constitution must be adopted.

 

Conventions of the International Labour Organisation (ILO)

 

• South Africa is a member of the ILO.
• The main instruments of the ILO are Conventions, which reflect the agreements reached by consensus among the member states of the ILO.
• The Conventions of the ILO have a role to play in determining the content of the labour rights in the Bill of Rights and the proper interpretation of our labour legislation.
• South Africa has ratified several ILO conventions and by doing so, it undertakes binding legal obligations relating to a wide variety of matters.
• Labour legislation enacted since 1995 for example, the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1995 (EEA) reflect ratification or adoption of core ILO Conventions.

 

Labour Legislation

 

• The main source of labour law is legislation or statutes.
• These are Acts of Parliament which regulate specific matters of labour law.
• Laws generally contain broad provisions setting out rights and duties, establishing processes and procedures and imposing obligations on parties.
• Obvious examples would be the Labour Relations Act (LRA) or Basic Conditions of employment Act (BCEA).

Regulations

 

• Broader provisions contained in legislation are often regulated in more detail by means of regulations.
• The regulations focus how to practically implement aspects of legislation. For example, in 2006 the Minister of Labour issued General Administrative Regulations in terms of the Employment Equity Act (EEA), which set out in detail how employment equity plans must be drawn up. Regulations are a form of subordinate legislation, but are binding in the same way as statutes.

 

Codes of Good Practice

 

• Certain pieces of legislation (the LRA, BCEA and EEA) make provision for the issuing of Codes of Good Practice.
• Codes of Good Practice are guidelines and any person interpreting or applying legislation must take the relevant code into account.
• Codes of Good Practice provide employers with information that may assist them with implementing various pieces of legislation.
• Codes of Good Practice are prepared and issues by NEDLAC in terms of the law.
• Employers should be guided by a particular Code of Good Practice unless they have a good reason to depart from it.

 

Some of the more well-known Codes of Good Practice are:

• Code of Good Practice: Dismissal;
• Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace;
• Code of Good Practice on the Employment of People with Disabilities.

 

Sectoral Determinations

 

• Chapter 8 of the BCEA allows the Minister of Labour to issue sectoral and ministerial determinations which set basic conditions of employment for employees working in a particular sector.
• For example, determinations have been issued for domestic workers and the cleaning services sector. Where the issues dealt with in a sectoral determination are also dealt with by the BCEA, the determination shall be accepted.

 

The Minister has made sectoral determinations for the following sectors:

The Contract Cleaning Sector	(Sectoral Determination 1)
Learnerships	(Sectoral Determination 5)
The Domestic Workers Sector	(Sectoral Determination 7)
The Wholesale and Retail Sector	(Sectoral Determination 9)
Children in the Performance of Advertising Artistic and Cultural Activities	(Sectoral Determination 10)
The Taxi Sector	(Sectoral Determination 11)
The Farm Workers Sector	(Sectoral Determination 13)
The Forestry Sector	(Sectoral Determination 12)
The Hospitality Sector	(Sectoral Determination 14)

 

It is important that all employers familiarise themselves with the contents of sectoral and ministerial determinations and keep abreast with the changes to the minimum rates of pay.

Collective agreements

 

• Collective agreements are written agreements between trade unions and employers or employers’ organisations, concerning terms and conditions of employment or any other matter of mutual interest.
• Collective agreements are a form of ‘collective contract’.
• A collective agreement can amend, replace or change some basic conditions of employment to the extent it is allowed by the BCEA.
• That agreement is then the instrument that regulates the minimum conditions of employment for the employees covered by it.

 

Collective agreements concluded in bargaining councils

 

• A bargaining council is a voluntary institution made up of one or more registered employers’ organisations and one or more registered trade unions, which is set up for particular sectors and which regulates terms and conditions of employment or any other matter of mutual interest in that sector.
• Bargaining council collective agreements are also important because they regulate dispute resolution processes (conciliation and arbitration) applicable in the sector and area for which the council has been established.
• With some exceptions, bargaining council agreements can set aside or change even the minimum standards set out in the BCEA.
• If certain requirements are met, an agreement concluded in a bargaining council by employers and trade unions that represent the majority of employees in a sector may be extended to cover employers and employees who are not a party to the council at, provided that they fall within the area of jurisdiction of the council.

 

Collective agreements concluded outside of bargaining councils

 

• Collective agreements concluded between employers and trade unions outside of bargaining councils are also an important source of rules governing the employment relationship between an employer and its employees.
• Such agreements might regulate any matter of mutual interest, terms and conditions of employment and contain disciplinary codes and procedures.

 

Contract of employment

 

• A contract of employment still has an important role to play in our labour law. It creates and regulates the employment relationship.
• A contract comes into existence when an employer and employee intend to create binding obligations and agree on the content of the agreement.
• A contract of employment may be indefinite or for a fixed term.
• An indefinite contract of employment may be oral or in writing, but a fixed-term contract must be in writing and must state the reason for entering into a fixed-term contract.
• An employer and employee are free to agree to the terms of the employment relationship in the contract of employment, but they may not contract out of the minimum conditions of employment set out in the BCEA.

The Common Law

 

• The Common Law is a body of law, a set of principles, that has been developed by South African Courts over decades, initially drawing on Roman-Dutch and English law.
• It is unwritten, but its contents became clear as the courts consistently applied the same legal principles to the cases that came before them. For example, most of the South African law of contract is to be found in the common law.
• Even though the common law is unwritten, it remains an important and a binding source of law.
• The common law can be relied on unless it has been overridden or excluded by legislation.

Labour legislation that regulates the employment relationship

The employment relationship is based on the common law contract of employment. The common law covers basic contractual rights.  It does not give an employee rights to sick leave, maternity leave, minimum standards of safety, etc.

 

As a result of the gaps in common law, various pieces of labour legislation have been enacted to address the imbalance.

 

Labour legislation uses a wide range of techniques to achieve its objectives. These include:

• establishing regulatory standards with sanctions in respect of occupational health and safety;
• establishing a floor of minimum rights regulating conditions at work; and
• promoting workplace organisation through registered trade unions and collective bargaining.

 

The Constitution of South Africa

The Constitution is the supreme law of the Republic providing a framework and standards that other laws must follow. All laws that are made by the government must be in line with the provisions of the Constitution and if they are not, they have to be amended.

Labour legislation seeks to give effect to the basic rights in the Constitution, ensuring that everyone has the right to fair labour practices, that employers and trade unions can engage in collective bargaining and that workplaces are free from discrimination.

Each piece of labour legislation has its own focus or theme. Each of these “themes” can be traced back to a basic right contained in Chapter II of the Constitution (the Bill of Rights).

Legislation must be interpreted with reference to the Bill of Rights in the Constitution and international labour standards established by the International Labour Organisation. These are the Conventions which South Africa has approved and which are binding upon it.

Section 23 of the Constitution which is of fundamental importance in shaping labour law in South Africa reads as follows:

Employers are advised to display summaries of the main pieces of legislation at their workplaces in order for employees and employers to familiarise themselves with the legislation.

The following are some of the main labour statutes.

 

• Labour Relations Act 66 of 1995 (LRA)
• Employment Equity Act 55 of 1998 (EEA)
• Basic Conditions of Employment Act 75 of 1997 (BCEA)
• Mine Health and Safety Act 29 of 1996 (MHSA)
• Occupational Health and Safety Act 85 of 1993 (OHSA)
• Unemployment Insurance Act 63 of 2001 (UIA)
• Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)

 

1. The Labour Relations Act No 66 of 1995 (LRA)

 

The purpose of the LRA is to advance economic development, social justice, labour peace and the democratisation of the workplace by promoting collective bargaining, to provide a framework for unions and employers’ organisations to establish terms and conditions of work at sectoral and enterprise level; to facilitate employee participation in decision-making in the workplace and the effective resolution of labour disputes. The LRA codifies the law of unfair dismissals and unfair labour practices.

2. The Basic Conditions of Employment Act No 75 of 1997 (BCEA)

 

The purpose of the BCEA is to advance economic development and social justice by giving effect to the constitutional right to fair labour practices, by establishing and enforcing basic or minimum conditions of employment, such as hours of work, leave, sick leave, notice of termination of employment and setting limits to the variation of these minimum conditions (by ministerial determination, collective and individual agreements).

3. The Employment Equity Act No 55 of 1998 (EEA)

 

The purpose of the EEA is to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment by the elimination of unfair discrimination and implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels of the workforce.

4.The Mine Health and Safety Act No 29 of 1996 (MHSA)

 

The purpose of the MHSA is to provide for the protection of the health and safety of employees and other persons at mines. The MHSA requires employers and employees to identify hazards and to eliminate control and minimize health and safety risks. To enhance this function; greater employee participation is encouraged by the creation of health and safety representatives and committees. Health and safety conditions will be monitored, measures enforced, improvements made, risks investigated and training provided, so as to promote the development of a culture of health and safety in the mining industry.

5. Occupational Health and Safety Act 85 of 1993 (as amended) (OHSA)

 

The OHSA provides for the health and safety of persons at work and in connection with the use of plant and machinery. The OHSA also provides for the protection of other persons (not at work) against hazards arising out of or in connection with the activities of persons at work. The OHSA proposes to achieve its objectives by the establishment of an advisory council for occupational health and safety.

6. Unemployment Insurance Act 63 of 2001 (UIA)

 

The purpose of the UIA is to establish a system to provide temporary and limited relief for workers who have become unemployed. The UIA establishes an unemployment insurance fund to which employers and employees contribute. From this fund, employees who become unemployed, or their beneficiaries, are entitled to receive short term benefits (for up to six months) and limited to no more than 45% of the contributor’s remuneration.

The UIA creates the following benefits, which a contributor or the dependants of the contributor, are entitled to claim:

• Unemployment benefits;
• Illness benefits;
• Maternity benefits;
• Adoption benefits;
• Dependant benefits.

7. Compensation for Injury and Occupational Diseases Act 130 of 1993 (COIDA)

The purpose of COIDA is to provide for compensation for disablement (inability to work) caused by occupational diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases.