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South African labour law
South African labour law regulates the relationship
between employers, employees and trade unions in the
Republic of South Africa.
1 History
Main article:History of South African labour law
The Native Labour Regulations Act 1911 prohibitedstrikes by trade unions, introduced wage ceilings and a
pass system for moving around jobs. Over 70,000 Chi-
nese labourers were brought in, and used by landowners
to undercut the wages of other workers. Among white
workers, there was significant unrest, and major strikes
took place in 1907, 1913, 1914 and 1922
For a period of sixteen years, from 1979 to 1995, several
critical developments occurred in the field of labour law
in South Africa, beginning with a radical change in the
first of these years, when a significant Commission of En-
quiry was held, resulting in the establishment of an Indus-
trial Court, which was given extensive powers to mould,change, shape and develop the law. Prior to 1995, most
labour relations were based on contracts. In 1995, much
of the law developed by the Commission and the Indus-
trial Court was put together in theLabour Relations Act
1995(LRA). Since then, most labour law has been based
on statute.
Prior to 1995, an employee could be dismissed in terms
of the contract of employment, which could permit any
reason for dismissal. Since 1995, an employee may be
dismissed only for misconduct, operational reasons and
incapacity. The Labour Relations Act 1995 is a pivotal
piece of legislation, as it recognises the need for fast andeasy access to justice in labour disputes. The Industrial
Court had the status of a High Court, and therefore was
not accessible to all labourers.
1995 also saw the introduction of the Commission for
Conciliation, Mediation and Arbitration(CCMA) which
is an administrative tribunal. The Commission for Con-
ciliation, Mediation and Arbitration endeavours first and
foremost to conciliate between the parties. If it is unsuc-
cessful in this, the matter moves on to arbitration. The
entire process is very informal, and at no charge, and is
therefore very accessible to labourers, who often utilise
it: About 300 new cases are brought before the Commis-sion for Conciliation, Mediation and Arbitration daily. In
addition to the Commission for Conciliation, Mediation
and Arbitration, 1995 saw the introduction of bargain-
ing councils, which allow for communication across the
industry. A bargaining council is organised collectively
and voluntarily, and must be registered. In order to be
registered, an alternative-dispute-resolution mechanism,
similar to the Commission for Conciliation, Mediation
and Arbitration, must be put in place.
TheLabour Relations Act 1995 also regulated the issue of
fairness, not only in termination but during employment,
too. In 1998, however, most of the law on unfair labour
practices was removed from the Labour Relations Act1995 and put into the Employment Equity Act (EEA).
The EEA also deals with issues such as fairness regarding
a workers human immunodeficiency virus (HIV) status
or disability, as well as the issue of affirmative action.
TheBasic Conditions of Employment Act(BCEA), the
Health and Safety Actsand theSkills Development Act,
must be read with the EEA. The Skills Development Act
provides that a small percentage of a labourers salary
must be contributed to the Department of Labour, en-
abling certain workshops to be run which are designed to
develop skills.
2 Constitution
Chapter 2 of the Constitution contains several provisions
of relevance to employment and labour law:
the right to equality;
protection of dignity;
protection against servitude, forced labour and dis-
crimination;
the right to pursue a livelihood; and
protection for children against exploitative labour
practices and work that is hazardous to their well-
being.
It is important to interpret all labour legislation in light of
the Constitution.
Section 23 of the Constitution deals specifically with
labour relations, providing that everyone has the right to
fair labour practices,[1]
and specifically the right
to form and join a trade union;
1
https://en.wikipedia.org/wiki/Skills_Development_Acthttps://en.wikipedia.org/wiki/Health_and_Safety_Actshttps://en.wikipedia.org/wiki/Basic_Conditions_of_Employment_Acthttps://en.wikipedia.org/wiki/Commission_for_Conciliation,_Mediation_and_Arbitrationhttps://en.wikipedia.org/wiki/Commission_for_Conciliation,_Mediation_and_Arbitrationhttps://en.wikipedia.org/wiki/Labour_Relations_Act_1995https://en.wikipedia.org/wiki/Labour_Relations_Act_1995https://en.wikipedia.org/wiki/Native_Labour_Regulations_Act_1911https://en.wikipedia.org/wiki/History_of_South_African_labour_lawhttps://en.wikipedia.org/wiki/Republic_of_South_Africa8/9/2019 South African Labour Law
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2 3 EMPLOYMENT CONTRACT
to participate in the activities and programmes of a
trade union; and
to strike
Every employer, meanwhile, has the right
to form and join an employers organisation; and
to participate in the activities and programmes of an
employers organisation.
Every trade union and every employers organisation has
the right
to determine its own administration, programmes
and activities;
to organise; and
to form and join a federation
Finally, every trade union, employers organisation and
employer has the right to engage in collective bargaining.
Section 23(1) is an unusual provisiononly South Africa
and Malawi expressly protect the right to fair labour prac-
tices as it is so broad and overarching. An exact def-
inition of fair labour practices is impossible, since this
is a dynamic field of the law, rooted in socioeconomic
rights. Section 23(1) refers to everyone, encompassing
far more than merely employees and workers; it also in-
cludes would-be workers, employers and juristic persons.Section 23 is not entirely universal, however, as soldiers
are excluded from its ambit insofar as they may not strike
at a time of war.
The Labour Relations Act was promulgated as the na-
tional legislation referred to in subsections 23(5) and
23(6), which provide respectively that national legisla-
tion may be enacted to regulate collective bargaining,
and that national legislation may recognise union secu-
rity arrangements contained in collective agreements.
Both subsections stipulate that, to the extent that such leg-
islation may limit one of the rights in section 23, the lim-
itation must comply with section 36(1), the limitationsclause of the Constitution.
The currentBasic Conditions of Employment Actis also
designed to give effect to the right to fair labour practices.
Both Acts are bolstered by the EEA, which replicates the
equality clause in the Constitution in its totality, adding
that one may not discriminate on the basis of human im-
munodeficiency virus (HIV) status.
The general guarantee of fair labour practices has far-
reaching effects on the civil courts approach to the inter-
pretation of the rights of parties to employment contracts.
All courts are enjoined, when applying and developingthe common law, to have due regard to the spirit, pur-
port and objects of the Bill of Rights. This calls for a
reconsideration of some of the assumptions underlying
the common-law contract of employment, in particular
the employers power of command and unfettered rights
in respect of promotion and dismissal.
Furthermore, the labour courts judgments on such con-
tentious issues as the dismissal of striking workers aresubject to review by the Constitutional Court, so long as
the applicants have exhausted the procedures available to
them under the labour legislation.
InNUMSA v Bader Bop,[2] the Constitutional Court over-
turned a decision of the Labour Appeal Court which
restrictively interpreted the Labour Relations Act 1995.
The court recognised the necessity of collective bargain-
ing and bargaining councils which facilitate the establish-
ment of trade unions. The court held that minority unions
may not strike in support of demands for organisational
rights reserved in the Act for majority unions.
InNEHAWU v University of Cape Town,[3] the Constitu-tional Court overturned another decision of the Labour
Appeal Court which restrictively interpreted the Labour
Relations Act 1995. It had been argued that the term ev-
eryone did not include a university or a company, but the
court held otherwise. Furthermore, the court ruled that,
under the original section 197 of the Labour Relations
Act 1995, contracts of employment transferred automat-
ically when businesses were transferred, irrespective of
the wishes of the employers.
SANDU v Minister of Defence,[4] another Constitutional
Court, case Judge OReagan dealt with the concept of a
worker, and held that, although the Labour RelationsAct 1995 does not apply to South African National De-
fense Force (SANDF) members, they are still workers
in terms of the Constitution, which protects the rights of
every person in South Africa.
3 Employment contract
3.1 Parties
3.1.1 Identification
The first question to be asked, when seeking to resolve
any labour law problem, is whether the parties are indeed
employees and employers within the meaning of the
applicable statute or the common law.
This has long been a difficult task in South Africa, as it is
not always immediately apparent whether the parties have
entered into the locatio conductio operarum(contract of
employment) or merely thelocatio conductio operis(con-
tract of work).
Distinguishing between these two kinds of contracts is
critically important, as different legal consequences flowfrom the various forms of contract. Most important is that
South African labour legislation applies only in respect
https://en.wikipedia.org/wiki/Locatio_conductio_operishttps://en.wikipedia.org/wiki/Locatio_conductio_operarumhttps://en.wikipedia.org/wiki/SANDU_v_Minister_of_Defence_(1999)https://en.wikipedia.org/wiki/NEHAWU_v_University_of_Cape_Townhttps://en.wikipedia.org/wiki/NUMSA_v_Bader_Bophttps://en.wikipedia.org/wiki/Basic_Conditions_of_Employment_Act8/9/2019 South African Labour Law
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3.1 Parties 3
of employees, who are entitled to social security bene-
fits and have access to the statutory mechanisms if they
wish to seek remedies for violations of their employment
rights. Similarly, only employers are bound by the labour
statutes, and are vicariously liable for the delicts of their
employees.
3.1.2 Common law
The first source to be examined, when seeking to deter-
mine whether parties to a work relationship are employ-
ers and employees, is the contract into which they have
entered.
A contract of employment comes into existence when the
parties conclude an agreement that conforms to the re-
quirements of the locatio conductio operarum. The con-
tract of employment is traditionally defined as a contract
between two persons, the master (employer) and the ser-vant (employee), for the letting and hiring of the latters
services for reward, the master being able to supervise
and control the servants work.
This, however, begs the question of how much supervi-
sion or control is required to distinguish between employ-
ees and independent contractors.
Reported judgments have indicated that the task of dis-
tinguishing employees and employers from parties to
other contractual relationships entailing the provision of
work, or the rendering of services, is not a matter of defi-
nition; classification of such contracts is a matter of sub-stance, not merely of form.
The true nature of the contract, therefore, is determined
from the relationship between the parties, not merely the
label the parties have given their contract.
3.1.3 Statutes
Statutory definitions do not resolve the problem. Em-
ployee is defined
in section 213 of the Labour Relations Act 1995 as
any person excluding an independent con-
tractor, who works for another person or for
the State, and who receives, or is entitled to
receive, any remuneration; and
any other person who in any manner assists
in carrying on or conducting the business of
an employer;"
in section 1 of the Basic Conditions of Employment
Act in exactly the same words; but
in section 1 of the EEA as any person other than an
independent contractor who
works for another person or for the State and
who receives, or is entitled to receive, any re-
muneration; and
in any manner assists in carrying on or con-
ducting the business of an employer.
The difference between the Labour Relations Act 1995and the EEA is that the Labour Relations Act 1995 ex-
cludes independent contractors only in section 213(a),
while the EEA excludes independent contractors in both
subsections. It is safe, however, to assume that even from
the second part of the definition of an employee, as it
appears in the Labour Relations Act 1995 or the Basic
Conditions of Employment Act, independent contractors
are implicitly excluded.
At the core of subsection (a) of both definitions lies a ref-
erence to the contract of employment: one person work-
ing for another in exchange for some form of remunera-
tion.
The basic idea behind subsection (b) of both definitions is
that employees are those people who place their capacity
to work at the disposal of others. This is the essence of
employment.
The case of Liberty Life Association of Africa v Niselow
reiterates the law set out above and the interpretation of
the definition of employee.
3.1.4 Courts
Labour legislation does not define contract of service orthe concept of work at all.
This means that it is necessary to look outside the legis-
lation to determine the meaning of these terms, in order
to distinguish between an employee and an independent
contractor.
The courts have formulated a number of tests for drawing
the distinction.
Control test The control test focuses on the element of
control exercised by the employer over the employee.
The power to control has traditionally been regarded as
the hallmark of the employment contract. With the ad-
vent of highly skilled employees who are given free rein
in performing their duties, the courts no longer insist on
de facto control, as once they did, but recognise that a
rightto control is sufficient.
The courts initially applied the requirement of a right to
control rather strictly, as in R v AMCA Services, where the
presiding officer spoke of a right to control, not only the
end to be achieved by the others labour and the general
lines to be followed, but the detailed manner in which the
work is to be performed.
It is now clear, however, that the courts have in mind,
a right to control only in principle. The employer not
https://en.wikipedia.org/wiki/R_v_AMCA_Serviceshttps://en.wikipedia.org/wiki/Liberty_Life_Association_of_Africa_v_Niselowhttps://en.wikipedia.org/wiki/Locatio_conductio_operarum8/9/2019 South African Labour Law
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4 3 EMPLOYMENT CONTRACT
choosing to exercise that right does not render the con-
tract something other than one of employment.
The application of the control test in isolation is entirely
inadequate, as certain employees have a wide discretion
as to how to perform their work. Such discretion does not
alone render them independent contractors.The ultimate difference between an employee and an in-
dependent contractor is that the principal has no legal
right to prescribe the manner in which the independent
contractor brings about the desired result, but may pre-
scribe methods by which the employee works. In Colonial
Mutual Life Assurance Society v MacDonald, the court
held that the employee was subject to the control of the
employer in the sense that the latter had the right to pre-
scribe not only what work had to be done, but also the
manner in which that work had to be done. The indepen-
dent contractor, on the other hand, could be directed only
as to what work must be done, nothow
it was to be done.In any event, to define a contract in terms of one of its
characteristics is tautological.
Organisation test The organisation test was devel-
oped in French law and adopted by South African law in
R v AMCA Services and Another. It is based upon the as-
sumption that whether or not one is an employment does
not rest on submission to orders; it depends on whether
the person is part and parcel of the organisation.
In other words, one looks at the extent to which a per-
son (the worker) is integrated into the organisation of theother person (the employer), or whether the person is per-
forming work inside the organisation of another.
Thework of an independent contractor, although done for
the business, is not integrated into it; it is only accessory
to it.[5]
If a person is incorporated into or related sufficiently to
the organisation, that person will be regarded as an em-
ployee or a worker even though the employer might exer-
cise little actual control over him.
One of the problems with this test is that it is not always
possible to measure the extent of integration, or to deter-mine what degree of integration is sufficient for someone
to qualify as an employee.
The test was rejected by the Appellate Division in S v
AMCA Serviceson the basis of its being too vague.
Multiple or dominant-impression test The deficien-
cies of the control and organisation tests led the courts to
approach the question in the same way that they approach
so many other problems: The relationship is viewed as a
whole; a conclusion is drawn from the entire picture.
In Ongevallekommissaris v Onderlinge Verseker-ingsgenootskap AV-BOB, although the court did not spell
out exactly what may be included in the general picture,
guidance may be derived from the English case ofReady
Mixed Concrete v Minister of Pensions and National
Insurance, in which the presiding officer set out three
possible components:
1. The servant agrees that, in consideration of a wage
or other remuneration, he will provide his own work
and skill in the performance of some service for his
master.
2. He agrees, expressly or impliedly, that in the per-
formance of that service he will be subject to the
others control in a sufficient degree to make that
other master.
3. The other provisions of the contract are consistent
with its being a contract of service.
When courts examine the other provisions of the con-
tract, they will consider all relevant aspects of the rela-
tionship. These include:
the form of the contract;
the right to supervision (in other words, whether the
employer has the right to supervise the person);
the extent to which the worker depends on the em-
ployer in the performance of his duties;
whether the employee is not allowed to work for
another;[6]
whether the worker is required to devote a specific
amount of time to his work;
whether the worker is obliged to perform his duties
personally;[7]
whether the worker is paid according to a fixed rate
or by commission;
whether the worker provides his own tools and
equipment; and
whether the employer has the right to discipline, sus-
pend and dismiss the worker.[8]
The decisive difference between the control test and the
dominant-impression test is that, in the latter, the exis-
tence or absence of control is only one of the factors to
be taken into account.
In Smit v Workmens Compensation Commissioner, the
court had to decide whether Smit, who had been em-
ployed as an agent for an insurance company, was an
employee or not. He had been
remunerated on a commission-basis;
forbidden to perform certain acts (such as pledging
the companys credit) without written authority;
https://en.wikipedia.org/wiki/Smit_v_Workmen%2527s_Compensation_Commissionerhttps://en.wikipedia.org/wiki/Ready_Mixed_Concrete_v_Minister_of_Pensions_and_National_Insurancehttps://en.wikipedia.org/wiki/Ready_Mixed_Concrete_v_Minister_of_Pensions_and_National_Insurancehttps://en.wikipedia.org/wiki/Ready_Mixed_Concrete_v_Minister_of_Pensions_and_National_Insurancehttps://en.wikipedia.org/wiki/Ongevallekommissaris_v_Onderlinge_Versekeringsgenootskap_AV-BOBhttps://en.wikipedia.org/wiki/Ongevallekommissaris_v_Onderlinge_Versekeringsgenootskap_AV-BOBhttps://en.wikipedia.org/wiki/S_v_AMCA_Serviceshttps://en.wikipedia.org/wiki/S_v_AMCA_Serviceshttps://en.wikipedia.org/wiki/Colonial_Mutual_Life_Assurance_Society_v_MacDonaldhttps://en.wikipedia.org/wiki/Colonial_Mutual_Life_Assurance_Society_v_MacDonald8/9/2019 South African Labour Law
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3.1 Parties 5
forbidden from working for another company at the
same time, but was not required to work full-time
and could do other work at different times;
given the use of a company motor-car, but had to
pay of out of his own pocket for fuel and servicing;
working closely with a manager, but there was a total
absence of any right of supervision and control of
Smit by the insurance company; and
able to obtain assistance from others in performing
his duties.
The dominant-impression test was followed in this case,
and Smit was held to not be an employee of the insurance
company.
InMedical Association of SA v Minister of Health, several
district surgeons challenged the decision of the provincial
MEC for Health for the Free State to terminate their con-tracts summarily as part of the restructuring of the district
health service. The multiple or dominant impression test
was followed, and the court used the factors discussed in
Smitto assist it in obtaining the dominant impression that
part-time district surgeons were in fact employees of the
State.
The court held that the dominant-impression tests entails
that one should have regard to all those considerations or
indicawhich would contribute towards a determination
of whether the contract is one of service or of work, and
react to the impression one gets upon a consideration of
all such indica. The Labour Court based its decision onthe following factors:
The doctors rendered personal services.
The doctors were expected to be at the beck and
call of the employer 24 hours a day, and to give
preference to official duties over those in their pri-
vate practices.
The employer was obliged to pay a contractual
salary to the doctors even in the absence of any ac-
tual work being performed, as long as the doctors
made themselves available to do the work.
Even though the doctors were professionals, the
provincial administration did have some control over
the way in which services were rendered.
The test has been subjected to severe criticism. Etienne
Mureinik has said that it test
offers no guidance in answering the (legal)
question whether the facts are of such a nature
that the individual may be held to be servant
within the meaning of the common law in dif-ficult (penumbral) cases. Indeed, it is no test
at all. To say that an employment contract is
a contract which looks like one of employment
sheds no light whatsoever on the legal nature of
the relationship.
This criticism is based on the idea that it is not helpful to
say a particular relationship exists because it looks like it
does.
Productive capacity test In other decisions, the courts
appear to have resorted to what may be described as the
productive capacity test.
This test was formulated in Martin Brasseys article The
Nature of Employment in the following terms:
The independent contractor sells the job
whereas the employee sells his hands [...
E]mployment is a relationship in which one
person is obliged, by contract or otherwise, to
place his or her capacity to work at the disposal
of another [... A]n employee is to be distin-
guished from an independent contractor, who
undertakes to deliver, not his or her capacity to
produce, but the product of that capacity, the
completed work.
Differences between employees and independent con-
tractors InSA Broadcasting Corporation v McKenzie,
the Labour Appeal Court summarised the main differ-
ences between the contract of employment proper andwhat is called the contract of work (locatio conductio
operis):
In the first, the object is the rendering of personal
services between employer and employee; in the
second, the object is the production of a certain
specified service or the production of a certain spec-
ified result.
The employee renders theservice at thebehest of the
employer; the independent contractor is not obliged
to perform his work personally, unless otherwise
agreed.
The employer may decide whether it wishes to have
employee render service; the independent contrac-
tor is bound to perform specified work or produce a
specified result within a specified or reasonable time.
The employee is obliged to obey lawful, reasonable
instructions regarding work to be done, and the man-
ner in which it is to be done; the independent con-
tractor is not obliged to obey instructions regarding
the manner in which a task is to be performed.
A contract of employment proper is terminated bythe death of the employee; the contract of work is
not terminated by the death of the contractor.
https://en.wikipedia.org/wiki/SA_Broadcasting_Corporation_v_McKenziehttps://en.wikipedia.org/wiki/Medical_Association_of_SA_v_Minister_of_Health8/9/2019 South African Labour Law
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6 3 EMPLOYMENT CONTRACT
A contract of employment terminates on comple-
tion of the agreed period; the contract of work ter-
minates on completion of the specified work, or on
production of the specified result.
Labour Relations Act 1995 s 200A There is very lit-tle work that cannot be outsourced. Outsourcing is gener-
ally not supported by trade unions, who represent employ-
ees. If work is outsourced, the worker is an independent
contractor. Political pressure was placed on government
to move away from outsourcing and more towards em-
ployment.
In 2002, accordingly, a new presumption was added to
the Labour Relations Act 1995, providing guidelines on
whenit has to be ascertained whether or not someone is an
employee. This presumption was introduced as a part of
significant amendments to the Labour Relations Act 1995
and the Basic Conditions of Employment Act in 2002.[9]
The effect of this rebuttable presumption is that, if one
or more of the list of factors is present, the person is pre-
sumed to be an employee unless and until the contrary is
proven. Many of the factors and issues discussed by the
courts in the cases above resurface again: The presump-
tion is thus created
if the manner in which the person works is subject
to the control or direction of another person;
if the persons hours of work are subject to the con-
trol or direction of another person;
if, in the case of a person who works for an organi-
sation, the person forms part of that organisation;
if the person has worked for that other person for
an average of at least forty hours per month over the
last three months;
if the person is economically dependent on the per-
son for whom he works or renders services;
if the person is provided with tools of trade or work
equipment by the other person; and
if the person only works for or renders services to
one person.
The legislative provision has been taken by some to be
merely a restatement or summary of the principles laid
down by the courts with the passing of time.
Although this presumption is useful in determining
whether a person is an employee or not, as it is closely
linked to the principles and approaches developed by the
courts, the Labour Court held, in Catlin v CCMA, that
section 200A does not do away with the principle that the
true nature of the relationship between the parties must be
gathered from the contract between them. Section 200A
is not the starting point, therefore; the court held that itis necessary to consider the provisions of the contract be-
fore applying the presumptions.
3.1.5 Essentials
The common-law concept of employment sets the scene
for the interpretation of the Labour Relations Act 1995.
The contract of employment is the foundation of the rela-
tionship between an employee and his employer. It links
the two parties in an employment relationship, irrespec-
tive of the form the contract takes.
The existence of an employment relationship is the start-
ing point for the application of all labour law rules. With-
out an employment relationship between the parties, the
rules of labour law do not apply.
The origin of South Africas modern contract of employ-
ment lie in Roman law, where a distinction was made be-
tween the two types of contracts discussed above:locatio
conductio operisand locatio conductio operarum.
In terms of the common law, one does not have to have
a written contract; therefore, not having the contract in
written form is not a fatal flaw, as the contract can be
verbal. There are, however, a number of statutes which
require specific contracts of employment to be in writ-
ing. Section 29 of the Basic Conditions of Employment
Act, for example, states that the employer must supply
the employee with certain written particulars concerning
specific things, like hours worked and remuneration.
Like any contract, the locatio conductio operarum com-
mences when the parties have agreed to its essential
terms, unless both parties have agreed to suspend its op-
eration for a particular period. If the contracts operation
is suspended, the employer is obliged to allow the em-
ployee to commence work on the specified date. Failure
to do so, without good cause, constitutes a breach of con-
tract at common law and a dismissal under the Labour
Relations Act 1995. It is important, therefore, to deter-
mine what the essentials of the contract of employment
are.
Stripped to its essence, the contract of employment today
may be defined as an agreement between two parties, in
terms of which one party (the employee) works for an-
other (the employer) in exchange for remuneration. Al-
though this definition appears to be simple, it contains a
number of important principles, aspects and implications.
When they are taken into account below, the definition of
the employment contract may be expanded as follows:
The contract of employment is a voluntary
agreement between two legal personae (the
parties) in terms of which one party (the em-
ployee) places his or her personal servicesor
labour potential at the disposal of the other
party (the employer) for an indefinite or de-
termined period in exchange for some form
of fixed or ascertainable remuneration, which
may include money and/or payments in kind.This entitles the employer to define the em-
ployees duties and to control the manner in
https://en.wikipedia.org/wiki/South_African_labour_law#Remunerationhttps://en.wikipedia.org/wiki/South_African_labour_law#Reciprocityhttps://en.wikipedia.org/wiki/South_African_labour_law#Workhttps://en.wikipedia.org/wiki/South_African_labour_law#Agreementhttps://en.wikipedia.org/wiki/Catlin_v_CCMA8/9/2019 South African Labour Law
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3.1 Parties 7
which the employee discharges them.
Agreement Firstly, it must be noted that the employ-
ment contract is based on agreement; the parties must en-
ter into it voluntarily. This idea finds expression in section
13 of the Constitution, which provides that no one maybe subjected to slavery, servitude or forced labour, and
section 48 of the Basic Conditions of Employment Act,
which states that all forced labour is prohibited.
Another implication of the fact that the employment con-
tract is based on agreement is that it is a contract, and
therefore must comply with the requirements of our law
for a valid contract. If it does not comply with these re-
quirements, it will not be regarded as binding and en-
forceable.
Consensus between the parties means that both must have
a serious intention to create mutual rights and duties towhich they will be legally bound. They must have each
been fully aware of the nature of the duties, and that the
other had this intention.
At common law, the parties are not required to observe
any formalities. There is no requirement that the con-
tract be in writing, but certain employment contracts are
required by statute to be in writing, like those of merchant
seamen and learners under the Skills Development Act.
In addition, those of apprentices and candidate attorneys
must also be registered with the appropriate authorities.
Lastly, where parties wish to alter provisions of the Ba-
sic Conditions of Employment Act, this must be done inwriting.
Work Secondly, one of the pivotal concepts in the ini-
tial definition is that of work. Generally, to work means
to place ones labour potential at the disposal and under
the control of another. This means that, when we work,
we offer our services to another person, and agree that
the other person will be able to tell us what to do, when
to do it, how to do it and where to do it.
To place your labour potential at the disposal of another
means to offer your ability to perform certain tasks to an-other person, and to offer, at the same time to follow that
persons instructions.
Remuneration Remuneration normally takes the form
of payment of money, or the provision of another benefit.
(According to the common law, payment may be made in
kind.)
Payment may be made monthly, weekly, daily or even
in irregular cash payments. The common law does not
prescribe what form payment must take.
The Labour Relations Act 1995 contains a statutory def-inition of remuneration in section 213: any payment in
money or in kind, or both in money and in kind, made or
owing to any person in return for that person working for
any other person, including the State.
The contract may state that remuneration is the normal
going rate for a specific type of work, or state a specific
amount or merely minimum wage.
The common law does not indicate minimum wages;these are usually set by collective-bargaining councils and
are industry specific.
Reciprocity The contract of employment is a recip-
rocal contract. This means that one promise is made
in exchange for another, and one obligation is incurred
in exchange for the other. The employee works in ex-
change for remuneration; the employer remunerates the
employee in exchange for the employee offering to place
his labour potential at the disposal and under the control
of the employer.
Summary To summarise, the essential elements of the
employment contract are as follows:
It is a voluntary agreement.
There are two legal personae.
The employee agrees to perform certain specified or
implied duties for the employer.
There is an indefinite or specified period.
The employer agrees to pay a fixed or ascertainable
remuneration to the employee.
The employer gains a (qualified) right to command
the employee as to the manner in which he carries
out his duties.
3.1.6 Duties
An employment relationship commences only when the
parties conclude a contract of service. Prior to this, nei-
ther party has any rights against the other; they are merely
a prospective employee and a prospective employer.
There are, however, two statutory exceptions to the prin-
ciple that employers have no obligations to applicants for
employment:
1. The EEA prohibits direct or indirect unfair discrim-
ination against an employee or applicant for employ-
ment on the basis of race, colour, gender, sex, reli-
gion, political opinion, ethnic or social origin, sexual
orientation, age, disability, religion, conscience, be-lief, culture, language, family responsibility, marital
status or any other arbitrary ground.
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8 3 EMPLOYMENT CONTRACT
2. The Labour Relations Act 1995 and the Basic Con-
ditions of Employment Act protect both employ-
ees and persons seeking employment against dis-
crimination for exercising rights conferred by the
Acts.[10][11]
Employer In addition to the three principle duties of
the employer, discussed below, employers are further
obliged to accord employees their rights in terms of the
applicable contracts of service, collective agreements and
legislation, as well as to adhere to certain statutory duties
imposed in the interests of employees.
Receipt into service The employers obligation to re-
ceive the employee into service is the corollary of the em-
ployees duty to enter and remain in service.
The duty to receive employees into service does not meanthat employers must necessarily provide employees with
work to keep them busy, although this general rule is sub-
ject to some exceptions: where, for example, remunera-
tion is based on the volume of work done, as in the case
of piece-workers or salespersons working on commission,
or where the failure to allow the employee to work de-
grades his status. A duty to provide work may also arise
where the employer has contracted to train the employee
in a particular profession or trade, as in the case of article
clerks and apprentices.
The common law permits the suspension of an employee,
suspected of some form of grave misconduct, while thematter is being investigated, but the employee is entitled
to his remuneration during the period of suspension.
Employers may deny their employees access to the work-
place, or otherwise prevent them from working, in the
course of collective bargaining. This is known as a lock
out, and is the employers equivalent of the employees
strike. If a lock out is lawfulif, that is, it complies with
the Labour Relations Act 1995the employer is relieved
of its obligation to pay the locked-out employees their
wages.
Since the contract of employment is personal, one em-
ployer cannot compel an employee to work for anotherif the first employer has no work for him, unless the first
employers business is transferred as a going concern.
Payment This duty is so fundamental to the employ-
ment contract that the courts will assume, where there
has been no agreement on remuneration, either that the
contract is not a contract of employment, or else that the
parties impliedly intended the payment of a reasonable
sum according to the custom and practice of the industry
and locality.
The duty to pay, and the commensurate right to remu-neration, arises not from the actual performance of work,
but from the tendering of service.
It has become a widespread practice for employers to
make up remuneration packages for their higher-paid
employees in a tax-effective way, by substituting various
benefits (like housing and car allowances) for the cash
component of the salary.
The periodicity of payment depends on the parties agree-ment or on custom.
An employer may not unilaterally deduct any amount
from the remuneration to which an employee is entitled.
If the contract is terminated summarily for good cause,
the employer must pay the employee for services rendered
to the day of the dismissal. The same principle applies
when the employee deserts mid-term before the end of a
fixed-term contract or without proper notice.
Safe and healthy working conditions Under the
common law, employers are obliged to provide their em-ployees with reasonably safe and healthy working condi-
tions.
The scope of this duty extends to providing proper ma-
chinery and equipment, properly trained and competent
supervisory staff, and a safe system of working.
If the employer fails to meet this obligation, affected em-
ployees are not in breach of contract if they refuse to work
until the dangerous situation is corrected.
Under the common law, employees had to rely on delict
if the employer did not ensure that the working condi-
tions were safe and healthy, but this was viewed to be
imprecise, and the Legislature intervened. The situation
is now governed by the Occupational Health and Safety
Act, which implements strict liability on the employer,
and states how much must be paid to the employee if ac-
cidents occur.
Remedies If the breach is material, the employee may
claim damages. Provided it is a material breach, the em-
ployee may also cancel the contract of employment.
The employee may also claim specific performance. This
was seldom granted in the past but is now considered an
option.
Finally, the employee may refuse to work, withholding
labour until the contract is performed.
Employee
Entering and remaining in service The main obli-
gation of the employee under the contract is to place his
personal services at the disposal of his employer.
The tender of service is a prerequisite to and the corol-
lary of the employees right to claim payment of wages:no work, no pay. The reverse also applies: no pay, no
work, so that employees who have not been paid may
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3.1 Parties 9
legitimately refuse to work without breaching their con-
tracts.
If a number of workers engage in a concerted cessation of
work for the purpose of obtaining some concession from
their employer, they are deemed to be on strike. Under
the common law, striking workers need not be paid. Thecommon law also allowed employers summarily to dis-
miss striking employees, but this has since been changed
by the Labour Relations Act 1995.
Subject to the right to take such paid leave as has been
agreed upon or conferred by statute, once employees have
entered service, they remain obliged to render service un-
til the contract of employment ends.
If the employee fails to render service (by desertion, ab-
senteeism, abscondment, unpunctuality, etc.), the em-
ployer is entitled to deduct from the employees wage an
amount proportional to the absence.
Reasonable efficiency Employees are deemed by law
to guarantee impliedly that they are capable of perform-
ing the tasks they agree to perform, and that they will
carry them out with reasonable efficiency.
Where an employer seeks assurances about employees
competence before taking them into service, the employ-
ees are bound by any representations they may make,
whether those professions of competence are made by the
employees themselves, or in testimonials of which they
are aware.
The standard of competence employers are entitled toexpect of their employees depends on the capacities in
which the employees are engaged and the status and se-
niority accorded them.
The test for the standard of competence is that of per-
sons comparable with the employees in question, having
regard to training, experience and any special claims the
employee might have made regarding his competence.
Where an employee has warranted that he possesses a
particular degree of skill, he must satisfy that representa-
tion.
Furthering employers business interests Employ-
ees are obliged to devote their energies and skills to fur-
thering their employers business interests. They must
devote all their normal working hours to the employers
business; they may not, without the employers permis-
sion, simultaneously work for another employer during
the hours they are contractually obliged to devote to their
employers needs.
These duties arise because the relationship between the
parties is of a fiduciary nature: Employees may not place
themselves in positions where their own interests conflict
with those of their employers and may not, by exercis-ing their powers of agency, acquire interests or benefits
without the knowledge of their employers.
The interests of Employees must bebona fide: They may
not work for another employer if its business interests are
in conflict with those of the principle employer.
In the absence of a contrary provision in the contract,
there is nothing to preclude employees from holding two
compatible jobs, provided the second is not conductedduring the working hours they are obliged to devote to
the first job. Contractual provisions limiting employees
moonlighting activities are, however, permissible.
In addition, employees may not compete with their em-
ployers business for their own account.
Respect and obedience Respect and obedience are re-
garded as an implied duty of every employee. Absence
of the former renders the interpersonal relationship be-
tween employer and employee intolerable; denial of the
latter undermines the employers right to decide how its
employees will work.
The courts require all employees to show a reasonable de-
gree of respect and courtesy to their employers, and to
obey their employers reasonable and lawful instructions.
Respect, being a disposition, is a quality that is difficult
to define with precision. It is not to be equated with def-
erence in a manner compatible with the subordinate posi-
tion in which the employee by definition stands vis--vis
the employer.
Mere failure on occasion to greet the employer or supe-
riors will not place employees in breach of their obliga-
tion to show respect. Disrespect must be gross if it is tojustify termination of the employment relationship, or so
frequent as to suggest that the employee has repudiated
the employers lawful authority, or that it has rendered
the continuation of the employment relationship intol-
erable.
Each case must be considered on its own merits to estab-
lish whether these inferences may be drawn.
Unless insolence is particularly gross, the proper sanction
is a written warning in the first instance.
The employees duty of obedience applies only to work-
related orders and generally during working hours and tothose orders which are lawful and reasonable.
Employees are also entitled to disobey instructions that
would subject them to personal dangers not normally con-
nected with the performance of their duties.
An order is unlawful if it requires the employee to per-
form an illegal act or to do something that falls outside
the scope of the contractual relationship.
Refraining from misconduct generally Any miscon-
duct that renders the continuation of the employment re-
lationship intolerable or unworkable, or undermines trustand confidence between employer and employee, is re-
garded as sufficient to justify dismissal, provided it is se-
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10 4 BASIC EMPLOYMENT RIGHTS
rious enough to offset the importance which the courts
otherwise attach to the work security of employees. Ex-
amples of misconduct are insubordination, theft, fraud.
With regard to misconduct committed before the forma-
tion of the conduct (like the commission of a serious
crime), the general principle is that there is no duty onprospective employees to disclose prejudicial information
from their past to their future employers unless they are
specifically asked to do so.
A duty may arise, however, where the non-disclosure is
material and amounts to fraud. Whether or not an em-
ployee may be dismissed for non-disclosure depends on
whether or not the employment relationship can reason-
ably be sustained after the discovery of the past misdeed.
Remedies The employer may only dismiss the em-
ployee summarily for misconduct, incapacity or opera-
tional reasons. If damages are incurred as a result of abreach of one of these duties, the employer may claim
compensation.
4 Basic employment rights
The Basic Conditions of Employment Act is aimed at
low-income earners: those who earn less than R193,805
per annum.[12]
No matter what the contract itself says, the Basic Condi-
tions of Employment Act is applicable as the minimumstandard that must be achieved.
The Labour Relations Act 1995 deals with strikes and
unions and the like; the Basic Conditions of Employment
Act is a fall back option for those vulnerable workers who
are not able to unionize due to various reasons, such as
the kind of work they do. Domestic and farm workers
are pertinent examples in the South African context.
The purpose of the Basic Conditions of Employment Act
is to advance economic development by providing basic
conditions of employment.
The Basic Conditions of Employment Act also containsthe definition of an employee, so that issue, discussed
above, is relevant here, too. The Minister is empow-
ered to extend the provisions of the Basic Conditions of
Employment Act to non-employees in specific circum-
stances. Even, therefore, if a domestic worker is not con-
sidered an employee in terms of the Basic Conditions of
Employment Act, the Minister may extend the provisions
to her for her own protection.
4.1 Minimum Wage
The employer has no discretion to pay less than the min-imum wage. As noted above, the Basic Conditions of
Employment Act provides the minimum standard to be
achieved; employers must, at the very least, abide by the
Basic Conditions of Employment Act.
Minimum wages are the result of bargaining councils in
most circumstances, but some professions have no bar-
gaining councils. Their minimum wage is therefore reg-
ulated by the Basic Conditions of Employment Act.
4.2 Hours
A maximum of 45 hours per week is allowed to be
worked.
4.2.1 Overtime
Overtime is permitted on the basis of a voluntary agree-
ment.
Payment for overtime is 1 times the normal wage.
4.2.2 Sundays
Payment for working on a Sunday is twice the normal
wage.
4.2.3 Meal intervals
An employee is entitled to one hour off during every
workday. This may be varied by agreement, but the em-ployee must have at least thirty minutes off for lunchtime;
the parties may not agree to a break of less than thirty
minutes.
4.2.4 Weekly rest periods
An employee is entitled to 36 consecutive hours off. Is-
sues such as night work, holidays and public holidays are
also covered.
4.2.5 Sick leave
An employee is entitled to 36 days off over a three-year
period.
4.2.6 Maternity leave
An employee is entitled to four months off in total. It does
not, however, stipulate that this is paid leave. In terms of
the Unemployment Insurance Fund, when a woman is on
maternity leave, she is entitled to Unemployment Insur-
ance Fund benefits for half the time spent away. Usuallythe employer will pay the other half, but this is not re-
quired in the Basic Conditions of Employment Act.
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5.1 Scope of protection 11
4.2.7 Family-responsibility leave
If the employee has been working for more than four
months, he is entitled to family-responsibility leave, as
in the case where there has been a death in his family.
4.2.8 Remuneration
Employers must keep records of the hours worked and
remuneration awarded for each employee for at least three
years.
Employees are to be paid in South African currency at the
place of work (unless this is altered in the contract).
Employers may not deduct money from employees unless
prior consent in writing is obtained.
Regarding severance pay, in cases of retrenchments or
dismissals for operational reasons, employees are entitledto one weeks pay for every year worked.
4.2.9 Variations
TheBasic Conditions of Employment Act is the very min-
imum standard required by employers. Employers may
award more, but never less, than what is stipulated.
If an employer gives more than the minimum, he may
be locked into always giving more, as he must then abide
by the required annual increases, which are based on a
percentage of the current pay.
An employer may vary the provisions in the contract by
individual agreement; or
collective agreement on an industry-wide basis.
5 Unfair labour practices
In the past, the concept of unfair labour practice
was broadly defined. The Industrial Court (a special-
ist tribunal that exercised jurisdiction over alleged un-
fair labour practices) took several innovative approaches.
The court formulated a set of rules to govern unfair dis-
missals. These rules are now contained in Chapter VIII of
the Labour Relations Act 1995 and in the Code of Good
Practice: Dismissal.[13]
The employment relationship has three stages:
the beginning, when the employee is an applicant for
employment;
the middle, which continues as long as the relation-
ship continues; and
the end, which may take the form of dismissal, res-
ignation or retirement.
Unfair conduct by the employer at the beginning of the
relationship normally takes the form of unfair discrimi-
nation. Unfair conduct by the employer at the end of the
relationship normally takes the form of unfair dismissal.
Unfair conduct by the employer during the subsistence of
the relationship will take the form of unfair labour prac-
tice.
Section 186(2) of the Labour Relations Act 1995 defines
an unfair labour practice as an unfair act or omission
that arises between an employer and an employee, and
involves
unfair conduct by the employer relating to the pro-
motion, demotion, probation or training of an em-
ployee, or relating to the provision of benefits to an
employee;
the unfair suspension of an employee, or any otherunfair disciplinary action short of dismissal;
a failure or refusal by an employer to reinstate or re-
employ a former employee in terms of any agree-
ment; and
an occupational detriment, other than dismissal, in
contravention of the Protected Disclosures Act,[14]
on account of the employees having made a pro-
tected disclosure defined in that Act.
5.1 Scope of protection
The first part of section 186(2) speaks of an unfair labour
practice as any unfair act or omission that arises between
an employer and an employee. Only persons who are al-
ready in employment, therefore, enjoy protection against
unfair labour practices; only persons, that is, who fall
within the definition of employee.
This concept may also cover ex-employees, if an em-
ployer refuses or fails to re-employ a former employee
in terms of an agreement, for example.
5.2 Exhaustive list
Due to the use of the word involving, the courts have
held that the list of unfair labour practices, contained in
section 186(2), is exhaustive. Therefore the definition of
unfair labour practice in the current Labour Relations
Act is considerably narrower than that of its predecessor,
the Labour relations Act of 1956. This is because con-
cepts such as unfair discrimination have been removed
from its ambit and included in the EEA.
The fact that the list is exhaustive raises three issues, asthe Constitution expressly affords everyone the right to
fair labour practices:[15]
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12 5 UNFAIR LABOUR PRACTICES
1. whether the limitation of the constitutional right is
justifiable, which according to the general consensus
it is;
2. the actual interpretation of this definition; and
3. the freedom of employees to rely directly on theConstitution, as opposed to the current Labour Re-
lations Relations Act.
With regard to the interpretation of this definition, the
general principle is that legislation that limits constitu-
tional rights must be interpreted in such a way as to min-
imise the limitation. The definition must be interpreted
so as to give the maximum possible protection.
With regard to the freedom to rely directly on the Consti-
tution, employees may rely directly on the Constitution to
challenge practices not covered by the Labour Relations
Act 1995, like transfers. This issue, however, remains tobe developed by the courts.
5.3 Promotion and demotion
5.3.1 Basic principles
Many cases have been referred to the Commission for
Conciliation, Mediation and Arbitration and the courts
in this regard. From these cases, three main issues arise:
1. the meaning of promotion and demotion;"2. the unfairness of the employers conduct; and
3. remedies.
Meaning Employers commonly use one of two sys-
tems to promote employees:
1. level progression, whereby employees are evaluated
on a regular basis and progress to a higher level
within the parameters of the job in question; and
2. the application-for-vacancies system, whereby va-cancies are advertised, and both current employees
and external applicants are invited to apply for posts.
The second system is problematic. The Commission for
Conciliation, Mediation and Arbitration and the courts
have held that it is not promotion at all, as the employee
is nothing other than a job applicant.
Firstly, in order to constitute a dispute concerning pro-
motion or demotion, the aggrieved individual must be an
employee of the employer to which he wishes to take ac-
tion.
Secondly, one must compare the current job held by the
employee with the job applied for.
Factors which are taken into account include any differ-
ence in remuneration levels, fringe benefits, status, levels
of responsibility or authority or power, and the level of
job security.
InMashegoane v University of the North, the dispute was
whether the universitys refusal to appoint a lecturer to theposition of Dean of a faculty involved a promotion. The
legislation governing the university provided that Deans
were appointed by the Senate acting on the recommenda-
tion of the Faculty Board. The university argued
that the position of the Dean was not applied for; and
that it was not a promotion; but
that it was a nomination.
Once the court establishedthat the applicant was a current
employee, it found that his salary would have remainedthe same, but that he would have received a Deans al-
lowance and would have had a car at his disposal; these
were the only benefits. His status would have been consid-
erably elevated. He would have had more responsibilities,
authority and powers. In light of this, the appointment
amounted to a promotion.
InNawa v Department of Trade and Industry, however,
the court held that there was no promotion because there
was no intention to change the existing terms and condi-
tions of employment, even though there was an intention
to change the way in which work was done.
Generally the Commission for Conciliation, Mediation
and Arbitration and other institutions are quick to assume
that there was indeed a promotion or demotion.
Disputes concerning Promotion and Demotion gener-
ally involve employees being denied a higher-level post
within the structure of the employers orginization or be-
ing stripped of status or benefits.
Unfairness Generally, unfairness implies a failure to
meet an objective standard, and includes arbitrary, capri-
cious or inconsistent conduct, regardless of whether it is
intentional or negligent.
Mere unhappiness on the part of the employee is not un-
fair.
With regard to substantive fairness, it may be difficult
to justify the choice of a particular candidate in precise
terms. An employer is at liberty to take into account sub-
jective factors, such as performance at an interview, when
considering an appointment or promotion. The employer
must still provide reasons, however.
With regard to procedural fairness, the employer must
follow its own procedures: If there is a practice of adver-
tising the posts, it may not, without good reason, departfrom that policy. An employee may challenge the com-
position and competency of a selection panel.
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5.3 Promotion and demotion 13
Examples of unfairness include bias, nepotism and erro-
neous exclusion of an employee from a shortlist due to a
mistake by the employer or selection committee.
Remedies The relief must be determined on terms
deemed reasonable by the Commissioner.Relief may be in the form of a declaratory order, protec-
tive promotion, remitting the matter back to the employer
for reconsideration, and reinstatement to a previous posi-
tion (in the case of demotion).
5.3.2 Probation
Guidelines may be gathered from the rules which govern
the obligations of the employer before a fair decision to
dismiss on the grounds of poor performance is reached,
and also from the Code of Good Practice: Dismissals.
In this context, unfair conduct may include the failure
to inform the employee properly about required perfor-
mance standards, and the failure by an employer to afford
the employee reasonable guidance, evaluation, training,
counselling and instruction.
5.3.3 Provision of benefits
An employer may commit an unfair labour practice
through unfair conduct relating to the provision of bene-
fits.
This provision, contained in section 186(2)(a) of theLabour Relations Act 1995, does not appear to be prob-
lematic, but it has been beset by considerable uncertain-
ties regarding the interpretation of benefits.
Early decisions of the Commission for Conciliation, Me-
diation and Arbitration attached a wide meaning to the
term benefits.
The problem is complicated by section 65(1)(c) of the
Labour Relations Act 1995, which provides that employ-
ees may not strike over issues that may be referred to ar-
bitration in terms of the Labour Relations Act 1995. A
dispute over benefits may be referred to arbitration. Ifbenefits is given a wide meaning, and is taken to include
remuneration, this would mean that employees may not
strike over wages and salaries.
There are two approaches to resolving the problem of in-
terpretation:
1. focus on the meaning of the word benefit, and try
define it; or
2. focus on the nature of the dispute itself, bearing in
mind the distinction between disputes over rights
and disputes over interests.[16]
Generally the courts take a narrow approach to interpre-
tation. They apply a combination of the two approaches
above. It has been held that the term benefits in the
definition of an unfair labour practice includes only ben-
efitsex contractuandex lege: benefits that already exist in
terms of a contract or law.
There is growing support for the notion that unfair labour
practices should include not only disputes of right, butalso disputes where there is an expectation of a right.
5.3.4 Training
This prohibition has had little impact in practice. In view,
however, of the obligations placed on employers in terms
of the EEA and Skills Development Act, it may become
more important in the future.
Generally employees may challenge the denial of training
where such training is a prerequisite for advancement in
the workplace.
5.3.5 Unfair suspensions
There are two types of suspension:
preventative suspension, where disciplinary charges
are being investigated against an employee, and the
employer wants to suspend the employee pending
the outcome of the disciplinary enquiry; and
punitive suspension, where suspension is imposed as
a disciplinary measure short of dismissal after thedisciplinary hearing has been held.
In the context of section 186(2)(b), one must consider
whether both types of suspension are covered, and what
the requirements for a fair suspension are.
Initially the view was taken that only punitive suspensions
fell within the scope of the unfair labour practice, but
this view was rejected by the Labour Court.
The Commission for Conciliation, Mediation and Ar-
bitration follows the Labour Courts view and assumes
jurisdiction over both punitive and preventative suspen-sions.
The practice of preventative suspension is not in itself un-
fair so long as there is substantive and procedural fairness
when the employer takes this decision.
Substantive fairness in this context refers to the reason
for the suspension. The employer must have a reason
for believing that the suspension is necessary. This could
be, for example, where the seriousness of the misconduct
creates rumours and suspicion, necessitating a suspension
of the employee in order for work to carry on smoothly,
or where the employer has reason to fear that the em-
ployee in question may interfere with the investigation orthe witnesses. It may also be that the employer fears an-
other recurrence of the misconduct, or that the seniority
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14 5 UNFAIR LABOUR PRACTICES
and authority of the employee in question has a bearing
on the matter.
Procedural fairness does not necessarily mean that the
employee must be given a hearing before the suspension.
At least, though, that the employer must inform him of
the suspension, the reasons for it, and the conditions ofthe suspension.
As a general rule, the employer must continue remuner-
ating the employee during the course of the suspension.
If he were to cease remuneration, this would constitute a
breach of contract.
Suspension without pay is generally only possible if the
employee consents, or if this is provided by legislation or
the contract of employment itself.
If the suspension is grossly unfair, the employee may seek
reinstatement as a remedy.
Where the unfairness is less serious, the employee mayseek an alteration of the conditions of the suspension
or require that the employer hold a disciplinary hearing
within a specified time.
5.3.6 Other disciplinary action short of dismissal
Other disciplinary actions, like warnings, suspensions
with or without pay, demotions and transfers, must also
meet the requirement of fairness. The employer must
be able to show that the warning, demotion or other dis-
ciplinary action was fair and appropriate in the circum-stances.
5.3.7 Failure or refusal to reinstate
Section 186(2)(c) of the Labour Relations Act 1995 pro-
tects employees against a failure or refusal of an em-
ployer to reinstate or re-employ a former employee in
terms of any agreement.
The wording is almost exactly the same as that in sec-
tion 186(d), which deals with dismissal. Unlike section
186(2)(d), however, section 186(2)(c) does not deal withtermination of employment; nor does it state that there
must be an offer of re-employment to some employees
and no offer in respect of others. Furthermore, sec-
tion 186(2)(d) does not refer to an agreement; section
186(2)(c) does.
5.3.8 Protected disclosures
Any occupational detriment an employee may suffer due
to the making of a protected disclosure is an unfair labour
practice.
Occupational detriment and protected disclosure are
defined in the Protected Disclosures Act.
Occupational detriment includes,inter alia, being sub-
jected to disciplinary action; dismissed, suspended, de-
moted, harassed or intimidated; transferred against ones
will, refused transfer or promotion, etc.
Once it is established that the employee has suffered an
occupational detriment, it must be proved that the detri-ment was due to a protected disclosure. This means that
there must be a protected disclosure, and that there must
be causality between the disclosure and the detriment.
As far as causality is concerned, the Labour Relations Act
1995 requires that the detriment must be on account of
the protected disclosure.
Disclosure is defined as any disclosure of information
regarding any conduct of an employer, or an employee of
that employer, made by any employee who has reason to
believe that the information concerned shows or tends to
show one or more of the following:
that a criminal offence has been committed, is be-
ing committed or is likely to be committed;
that a person has failed, is failing or is likely to fail
to comply with any legal obligation to which that
person is subject;
that a miscarriage of justice has occurred, is occur-
ring or is likely to occur;
that the health or safety of an individual has been,
is being or is likely to be endangered;
that the environment has been, is being or is likely
to be damaged;
unfair discrimination as contemplated in the Pro-
motion of Equality and Prevention of Unfair Dis-
crimination Act [...]; or
that any matter referred to [above] has been, is be-
ing or is likely to be deliberately concealed.
Generally, such disclosures become protected when they
are made to certain persons and offices under certain con-
ditions:
it was made in good faith;
the employee reasonably believes that it is substan-
tially true; and
it was not made for personal gain.
Furthermore, the employee must have reason to believe
that, if disclosure is made to the employer, he will
suffer an occupational detriment;
that the information was previously disclosed, and
no action was taken by the employer; or
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16 6 DISCRIMINATION LAW
In this regard, the Code of Good Practice: Key Aspects
of human immunodeficiency virus (HIV)/acquired im-
munodeficiency syndrome (AIDS) and Employment, to-
gether with the Code of Good Practice on the Employ-
ment of People with Disabilities, provides guidelines on
how HIV/AIDS and disability should be dealt with and
accommodated in the workplace.
This is the only legislative provision that mentions hu-
man immunodeficiency virus (HIV) status as a prohibited
ground of discrimination. Its inclusion makes section 6 of
the EEA even wider than section 9 of the Constitution.
Section 6 protects only an employee, but it does not
speak only of an employer; it provides that no person
may discriminate. This is broader, and may include,in-
ter alia, an independent pension fund or an independent
medical aid scheme, or even a fellow employee.
In this regard, if an employee lodges a complaint of dis-
crimination against another employee, and the employerdoes not consult in an attempt to eliminate the discrimi-
nation, the employer may be held liable.
The difference between discrimination and differentia-
tion must always be kept in mind, as not all differentia-
tions amount to discrimination. There may be a fair dif-
ferentiation between employees on the basis, for example,
of educational qualifications or experience or seniority.
Generally, differentiation will amount to discrimination
if it is based on an unacceptable reason. Even if the dis-
crimination suffered is not listed in section 6(1) of the
EEA, it would amount to discrimination if, objectively,
it is based on attributes and characteristics which have
the potential to impair the fundamental human dignity of
persons as human beings, or to affect them adversely in a
comparably serious manner.
Once the employee has proven that there has been a dif-
ferentiation, the EEA and Constitution provide that it is
presumed to have been unfair discrimination. The em-
ployer then bears the onus of proving the differentiation
to be fair.
Discrimination may be direct or indirect:
It is direct when it is clearly and expressly based onone or more of the grounds listed in section 6 of the
EEA.
It is indirect when, although not express, discrimi-
nation occurs as a result of it, as when an employer
imposes a gender-neutral criterion, such as height
or weight, as a condition for employment, and this
criterion indirectly has a disproportionate effect on
women.
6.1 Harassment
The EEA provides that harassment amounts to a form of
unfair discrimination, and as such is prohibited.[21] The
most prevalent forms of harassment encountered in the
workplace are
sexual harassment;
racial harassment;
sexual-orientation harassment; and
religious harassment.
Of these, sexual harassment is by far the most common.
6.1.1 Sexual harassment
TheCode of Good Practice on Handling of Sexual Ha-
rassment Caseslists three types of conduct which could
constitutesexual harassment:
1. physical conduct ranging from touching to sexual as-
sault and rape, and including a strip-search by or in
the presence of the opposite sex;
2. verbal conduct, including innuendoes, suggestions
and hints, sexual advances, comments with sexual
overtones, sex-related jokes or insults, graphic com-
ments about a persons body (made to that person or
in her presence), enquiries about a persons sex life,
and even whistling at a person or a group of persons;
and
3. non-verbal conduct, including gestures, indecent ex-
posure or the display of sexually explicit pictures or
objects.
Another way to define sexual harassment is to consider
the effect of the harassment. Three types of harassment
may be so identified:
1. quid pro quoharassment, which occurs when a per-
son is forced into surrendering to sexual advances
against her will, for fear of losing a job-related ben-
efit;
2. sexual favouritism, which occurs where a person in
authority rewards only those who respond to his sex-
ual advances; and
3. hostile-work-environment harassment, which oc-
curs when an abusive working environment is cre-
ated.
The questions remain: From whose perspective does one
analyse the conduct to see if it amounts to sexual harass-
ment? What test does one apply? Does one look to theway in which the victim experienced the situation (a sub-
jective test), or does one try to be more objective?
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6.1 Harassment 17
A subjective test would rely exclusively on the per-
ceptions of the victim. An obvious criticism of such
a test is that some victims may be over-sensitive, and
therefore cast the net too wide.
A purely objective test, on the other hand, may be
too narrow. The reasonable man test (which is,in terms of the common law, the generally applied
objective test) implies reliance on male-dominated
values.
The reasonable victim test seeks to establish a
compromise. It takes into account the experiences
of the victim, the surrounding circumstances, and
the question of fault on the part of the perpetrator.
Decided cases are inconsistent on which test should be
used.
The Code of Good Practice states that sexual harassmentis unwanted conduct of a sexual nature. This implies
a subjective test. It goes on to say, however, that sexual
attention will only become sexual harassment
if the behaviour is persistent;
if the recipient has makes it clear that the conduct is
considered offensive; or
if the perpetrator should know that the behaviour is
regarded as unacceptable.[22]
The Code thus adopts a mixture of the subjective and theobjective test.
Employer liability The EEA states that the employer
may be held liable if he was made aware of the conduct
but did nothing, or did not do everything that could be
expected of a reasonable employer.[23]
Furthermore, the Code provides that, as a first step in ex-
pressing concern about and commitment to dealing with
the problem of sexual harassment, employers should is-
sue a policy statement, stipulating the following:
All employees, job applicants and other persons who
have dealings with the business have the right to be
treated with dignity.
Sexual harassment in the workplace will not be per-
mitted or condoned.
Persons who have been or are being subjected to
sexual harassment in the workplace have the right to
lodge a grievance about it. Appropriate action will
be taken by the employer.[24]
The Code recommends that management be given a posi-tive duty to implement the policy, and to take disciplinary
action against employees who do not comply with it. A
policy on sexual harassment should explain the procedure
to be followed by employees who are victims of sexual
harassment. The policy should also state the following:
Allegations of sexual harassment will be dealt with
seriously, expeditiously, sensitively and confiden-
tially.
Employees will be protected against victimisation
and retaliation for lodging grievances, as well as
from false accusations.[25]
Finally, the Code recommends that policy statements on
sexual harassment be communicated effectively to all
employees.[26]
Other remedies The employee who resigns due to sex-
ual harassment may argue that this was a constructive dis-missal, which would provide grounds for finding an auto-
matically unfair dismissal.
A victim of harassment may institute a civil claim, based
on delict, against the perpetrator; she may also institute
a claim against the employer, based on the common-law
principles of vicarious liability.
6.1.2 Medical testing
TheEEA prohibits medical testing of an employee, unless
legislation requires or permits such testing; or
the testing is justifiable.[27]
Testing may be justifiable in the light of
the medical facts;
the employment conditions;
social policy;
the fair distribution of employee benefits; or
the inherent requirements of a job.
Job applicants are also protected from medical testing.[28]
The EEA prohibits psychological and other similar as-
sessments of employees, unless such an assessment
has been scientifically shown to be valid and reliable;
is applied fairly to all employees; and
is not biased against any employee or group of
employees.[29]
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18 6 DISCRIMINATION LAW
HIV/AIDS The EEA lists HIV status as one of the
grounds on which an employee may not be discriminated
against.[30] South African Airways, for example, formerly
had a policy of not employing HIV-positive employees
as cabin attendants, partly because it believed that HIV-
positive people could not have vaccinations, a require-
ment for international travel, and were at risk of infection,which might be transmitted to others.
InHoffman v South African Airways, the court found that
people living with HIV constitute a minority, to which
society has responded with intense prejudice, stigmatiza-
tion and marginalization. Societys response has forced
many of them not to reveal their HIV status, for fear of
such prejudice, and has thus deprived them of the help
they would otherwise have received. This stigmatization
the court considered an assault on their dignity.
The EEA is designed to counteract
the need which employers may feel to test their em-
ployees for HIV/AIDS; and
the concomitant risk of prejudice to employees who
do test positive.[31]
Such testing is prohibited unless it is held to be justifiable
by the Labour Court, which may impose various condi-
tions on such testing, including
the provision of counselling;
the maintenance of confidentiality;
a limitation on the period of HIV-testing; and
a limitation on the category of jobs or employees in
respect of which such testing is authorized.
Employers may make HIV testing available to employees
as part of a wellness program, provided that it takes
place confidentially and on the basis of informed consent.
Authorisation from the Labour Court is not required for
such testing.
The EEA does not forbid anonymous testing undertakenfor epidemiological purposes, or to establish the preva-
lence of HIV/AIDS among the workforce.[32]
In Joy Mining Machinery v NUMSA, the court held that
the following considerations should be taken into account
in determining whether or not HIV testing is justifiable:
the prohibition on unfair discrimination;
the need for such testing;
the purpose of such testing;
the medical facts;
the employment conditions;
social policy;
the fair distribution of employee benefits;
the inherent requirements of the job; and
the category or categories of jobs or employees con-
cerned.
The court will also want to be informed about the follow-
ing, which do not go to the question of justifiability, but
which are also relevant to arriving at a proper decision:
the attitude of the employees;
the financing of the test;
the preparations for the test;
pre-test counseling;
the nature of the proposed test and procedure; and post-test counseling.
There is also a Code of Good Practice on Key Aspects
of HIV/AIDS and Employment, which provides guide-
lines to employers and employees on how to deal with
HIV/AIDS in general.
With regard to HIV/AIDS and disability, the Code states
that an employee who has become too ill to work may be
dismissed on grounds of incapacity. A mental or physical
impairment will constitute a disability only if it is sub-
stantially limiting in respect of entry into, or advance-
ment in, employment.
6.1.3 Disputes about discrimination
A dispute about unfair discrimination must be referred
to the Commission for Conciliation, Mediation and Ar-
bitration for conciliation within six months of the alleged
discriminatory act or omission.
Disputes of this nature may not be referred to a bargaining
council.
In referring the dispute to the Commission for Concilia-
tion, Mediation and Arbitration, the referring party mustindicate that it has made a reasonable attempt to resolve
the dispute, depending on the circumstances.
If conciliation fails, the matter may be referred to the
Labour Court, unless the parties consent to the jurisdic-
tion of the Commission for Conciliation, Mediation and
Arbitration for arbitration.
The Labour Court may make any appropriate order that is
just and equitable in the circumstances, including com-
pensation, damages, and orders directing the employer to
take preventative steps.
Again, once the employee proves that there was discrim-ination, the onus shifts to the employer to prove that the
discrimination was fair.
https://en.wikipedia.org/wiki/Code_of_Good_Practice_on_Key_Aspects_of_HIV/AIDS_and_Employmenthttps://en.wikipedia.org/wiki/Code_of_Good_Practice_on_Key_Aspects_of_HIV/AIDS_and_Empl