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DO ILLEGAL WORKERS HAVE LABOUR LAW RIGHTS IN SA?
All workers have labour rights in South Africa. Regardless of whether they are illegal or whether the work they are doing is illegal. This specifically was underlined in an early case where a prostitute had taken her unfair dismissal to the Labour Court after the CCMA had ruled there was no jurisdiction.
We have on many occasions raised the issue about the lacuna in the law whereby an employer would have to request an individual who had no work permit to leave the premises because of our immigration laws. These individual do in fact go to the CCMA and claim unfair dismissal and quite rightly they are entitled to damages if no proper process was followed.
Our constitution is absolutely clear in that it doesn’t discriminate against any type of employee.
MICHAEL BAGRAIM
Bagraims Attorneys
7 November 2019EOH DECISION
The Labour Appeal Court has taken a practical approach in that the law itself merely calls for “audi alteram partem”
If you go back to the Avril Elizabeth Home for the mentally handicapped case, then you will see that the Labour Court specifically said then that the LRA contemplates an informal, expeditious disciplinary process conveying in essence, nothing more than a dialogue and an opportunity for reflection before a decision is taken.
Subsequently, the CCMA Commissioners and some of the Labour Court judges have tried to read too much into the law and have brought about a highly technical procedural process. The judges have almost expected employers to be lawyers and have bogged down what should have been a simple process.
The reality is that if an employer can show that there has been a fair procedure and that there is merit for the dismissal, then the employer should be successful in defending a claim of an unfair dismissal
EQUAL PAY FOR EQUAL WORK
In this particular situation it makes no difference whether the one employee is black or white, that is a red herring.
The equal pay for equal work is specifically to compare and contrast two positions of two people doing exactly the same work. If the positions are different they can warrant different pay.
MICHAEL BAGRAIM
BAGRAIMS ATTORNEYSAUTOMATICALLY UNFIAR DISMISSAL? – RETRENCHMENT FOR REFUSING SHORT TIME
This particular outline doesn’t appear to be short time as we know it from the bargaining councils. In essence, the full time position has become redundant and is alternative to the redundancy, people are being offered a different position consisting of a three day week.
The Company needs to follow a true section 189 process as it doesn’t appear to be a situation where the low order book was only for a short period of time.
If that is the case I don’t believe that would be an automatically unfair dismissal.
SECTION 197
In essence, the entire business of Company B is taken over by Company A. The reality is that although this is not a traditional 197, I believe that the Courts would respect the spirit of the law in that the entire function and the management of the operation has moved across to Company A. Company A will be needing to start their operation on exactly the same basis as Company B. My understanding of the spirit of the law is that Company A would have to take over the employees of Company B.
Michael Bagraim
It is wrong to even ask the question in that fashion as clearly AMCU is a trade union, they represent their staff, their constitution is one of a trade union and they were legally registered as a trade union. They however have not adhered to the necessity to have an AGM by a particular date.
Normally this is pointed out by the Department of Labour and a new date is negotiated.
Michael Bagraim
Clearly the case law and the legislation supports the use of the de novo principle. For an arbitrator to be completely independent it is absolutely necessary to hear the evidence in full. In reality chairpersons of disciplinary hearings are often unschooled in principles of law and in fact have very little back ground in labour legislation. One also understands that evidence at disciplinary hearings is often untested and given under strange circumstances. Many times we hear that witnesses testify at arbitrations to explain why they gave wrong evidence at the disciplinary hearing.
Also evidence comes to light after disciplinary hearings which can be used and in fact should be used.
Michael Bagraim
Schedule 8 of the Labour Relations Act is a guideline. This guideline does not usurp the internal disciplinary policies of the employer, however, the structure of the guideline is open ended and is specifically done so to ensure fairness and progressive discipline. The numerous rulings of various arbitrators and judgments given by the Labour Court have emphasised progressive discipline which could start from a mere comment which indeed would constitute a warning and discipline. It is expected of the employer to escalate the comment on the next occasion and thereafter it could be escalated all the way to dismissal after a disciplinary enquiry.
Michael BagraimTIME ALLOWED BEFORE DISCIPLINARY HEARINGS
The practice and regulations have always recommended 48 hours. In order to give less than that the parties would have to agree, and such agreement should preferably be in writing.
However, 48 hours might be absolutely impractical in situations where the issues are complex, the evidence needed is varied and witnesses are unavailable.
It is recommended that employers objectively assess the nature of the dispute and carefully analyse how much work an employee has to do in order to effectively defend him or herself.
My experience has been that the employer would engage with the employee and or the employees representatives in order to take into account their input with regard to the timing of a disciplinary hearing.
MICHAEL BAGRAIM
BAGRAIMS ATTORNEYS
20 November 2018DAGGA AND WORK
With the advent of the recent Constitutional Court judgment and the increased use of cannabis we are finding many employers being faced with employees who feel that they may now partake in cannabis as it is “legal”. It must be known the Occupational Health and Safety Act specifically says that no employer may allow any person to enter or remain in the workplace if they appear to be under the influence of liquor or drugs or to be in possession or partake or offer other persons intoxicating liquor or drugs. This injunction is incredibly far reaching and is in no way negated or changed by the court ruling. Each and every employee must be made aware that being under the influence of marijuana at work could lead to accidents and if detected will lead to disciplinary enquiries which will probably lead to dismissal. More often than not, the effects of dagga remain in the system longer than alcohol and do in fact impair the individual user. The danger that does exist at the workplace is vastly exacerbated when someone has been using dagga. We also often see that dagga is smoked together with other drugs which makes it a lot more dangerous at the workplace. Cannabis is classified as a hallucinogen which does often translate into a depressant for the central nervous system. Dagga can affect performance and safety and for all intense and purposes is dangerous when a person has to use machinery or is expected to drive. Most results show us that dagga does affect motor coordination and reaction time.
Just because the smoking and partaking in the ingestion of cannabis is now legal it does not make it legal at the workplace. Depending on the amount of dagga taken the effects could last anything up to twelve hours especially if ingested and not smoked.
Employers need to ensure that they have policies in place carefully outlining the negativity of alcohol and drugs and these policies should outline the disciplinary action that will be taken if the presence of the drug is detected. These workplace policies must be made known to each and every employee and it is recommended that these employees personally sign copies of the policies to indicate that they know and understand the policy and that they will abide by the rules. An employee will not be able to use the defence that the dagga is now legal. Alcohol, being legal, does not excuse any employee of arriving at work and being intoxicated. Even the possession of dagga at work should lead to a disciplinary enquiry. It is well known that after alcohol dagga is probably the most abused substance in South Africa.
RIGHT TO EXTERNAL REPRESENTATION AT RETRECHMENT CONSULTATIONS
In essence we are guided by Section 189(1)(d). The reality is that a representative can be anyone of your choosing, there is no law or rulings on the meaning of “their representatives nominated for that purpose”. The common practice is for attorneys to represent the employer clients and this has been accepted by the courts since the inception of the current Labour Relations Act.
“What is good for the goose is good for the gander” and therefore it is absolutely right and reasonable for employees to choose a representative of their choice.
MICHAEL BAGRAIM
Bagraims Attorneys
18 SEPTEMBER 2018ASSIGN SERVICES (PTY) LTD vs NUMSA AND OTHERS
The Constitutional Court in the Assign Services (Pty) Ltd case has given its final and binding ruling on the widely known deeming provision. The Labour Court did rule a situation of sole employment when an employee of a labour broker is placed at a client for more than three months and that employee earns less than the threshold as set by the BCEA. The Constitutional Court has preferred the sole employer interpretation and there are certain implications to this, which implications will be discussed hereunder.
It must be noted up front that the Constitutional Court made this ruling “For the purposes of the LRA”. This means that the labour broker remains the employer for the purposes of all the other pieces of labour legislation including The Basic Conditions of Employment Act, BEE, Workmen’s Compensation, UIF etc. The Court has confined itself only in so far as the LRA is concerned. This means that for claims under The Labour Relations Act the client after the three month period would be deemed to be the employer. There was certainly no ruling with regard to the possibility of banning labour broking. The Court said, “The employee may still claim against the temporary employment service as long as there is still a contract between the temporary employment service and the employee. This is imminently sensible considering that the temporary employment service may still be remunerating that employee”. In other words, the Court is supporting the structure as it stands for the entire employment relationship between the labour broker and the employee. In other words, the labour broker is still generally liable as the employer. This is very much in line with the way in which the labour brokers have structured themselves.
One should look at Section 198(4) of The Labour Relations Act where a labour inspector acting in terms of the BCEA may secure and enforce compliance against the labour broker if it were the employer. The clients’ liability is that the client is deemed to be the employer of the placed worker and can thus be sued directly in the CCMA or the Labour Court in situations of an unfair labour practice, unfair dismissal or a retrenchment.
The indemnity granted to clients means that they will step in to the breach whenever there is a labour legal claim against the client. It is fundamentally important for the client to ensure that its legal advisors would be brought on board as soon as action needs to be taken under The Labour Relations Act.
There is no transfer of new employment but there is a deeming provision in our law that grants statutory attribution of responsibility as employer to the client. This responsibility has to be managed carefully and properly so as to ensure that the action taken in terms of The Labour Relations Act is done in accordance with the requirements of the legislation.
There is no change in the statutory attribution of responsibility or liability in relation to claims under all the labour legal statutes.
Temporary employment services will continue to play a role in workforce management and in fact a much greater role as they involve themselves with skills development and employment in the economy. This judgment in the Constitutional Court is the final statement on the matter and it is now important for business to be bedded down and for the relationship to be built as strongly as possible. What this judgment does do is to ensure that the structured relationship between the labour broker and the client must be very carefully handled
MICHAEL BAGRAIM
BAGRAIM ATTORNEYSAlthough Section 198B of The Labour Relations Act gives 9 justifications for conclusion of fixed term contracts these justifications are not limited in any way and certainly it appears that the 9 justifications are merely guidelines. However, I don’t believe that probation would be a justification for a fixed term contract. In essence probation is a specific written clause entered into between employer and employee in order to justify a set of circumstances to endorse permanent or even short term employment. The reality is that probation could be added into fixed term contracts or any contract of any nature culminating in employment on a permanent basis. Probation in our law is specifically incorporated into contracts to enable parties to assess whether the contracts ought to become of a permanent nature or of a specified term of employment. This probationary clause would allow parties to explore their suitability to each other. Probation itself comes with various plights and duties, this must be adhered to in order to ensure that the probationary clause is properly implemented.
My experience has been that probation has to be included in all contracts whether they be of a specific term or of a permanent nature. The fixed term contract will still have to be justified in terms of Section 198B regardless of the introduction of a probationary clause. Michael Bagraim
Yes I think it can be used as a justification- but not in the strict sense of 198B. Although a probationary trial period does not fit any of the 9 justifications, there’s no reason in principle why an employer can’t use a 3-month FTC to test the employee’s performance – and thus use it as a probationary period. The 198B justifications don’t apply in the first 3months – so the parties can contract on terms they agree.
It gives the employee the same chance to prove his or her value as a probationary period would – and it’s less risky for the employer. Patrick Deale
