Transcript Fasset
Labour Law Update 2008 August & September 2008 Introduction The Constitution The Basic Conditions of Employment Act (“BCEA”) The Labour Relations Act (“LRA”) The Employment Equity Act (“EEA”) The Compensation for Occupational Injuries and Diseases Act (“COIDA”) 2 Introduction The Occupational Health and Safety Act (“OSHA”) The Protected Disclosures Act (“PDA”) Unemployment Insurance Immigration Law The Prevention and Combating of Corrupt Activities Act (“PCCA”) 3 Introduction Simplified Court Structure – Constitutional Court (“CC”) – Labour Appeal Court (“LAC”) – Labour Court (“LC”) – CCMA/Bargaining Council 4 Introduction Unfair Dismissal Disputes – Conciliation at the CCMA/Bargaining Council – Depending on the type of dismissal Arbitration at the CCMA/Bargaining Council; or Labour Court for adjudication 5 The Constitution General Characteristics of Constitutionality – Constitutional Supremacy – Entrenched Bill of Rights – Extensive powers of interpretation of statutes and enforcement of rights granted to the courts – Importance of human rights 6 The Constitution The Bill of Rights contains several provisions relevant to labour law including: – Protection against discrimination – Protection against forced labour and servitude – The right to pursue an occupation – The right to freedom of association – Protection of children against exploitative labour practices 7 The Constitution Section 23 – Everyone has the right to fair labour practices – Every worker has the right to form and join a trade union, participate in union activities and strike – Every trade union, employer’s organisation and employer has the right to engage in collective bargaining The Impact of the Constitution on Labour Law – See p1 of the handbook 8 Basic Conditions of Employment Act Overview – see p 3 of the handbook The Regulation of Working Time – Exclusions from this provision: Senior managerial employees Sales reps who regulate their own hours Employees who work less than 24 hours per month Employees who earn in excess of R149 736 per annum 9 Basic Conditions of Employment Act The Regulation of Working Time – An employer must regulate working time of employees In accordance with health and safety provisions With due regard to the Code of Good practice With due regard for family responsibility leave 10 Basic Conditions of Employment Act Ordinary Hours of Work – Employee cannot work for more than 45 hours per week – Employee cannot work more than 9 hours in a day if he/she works 5 days in a week – Employee cannot work more than 8 hours in a day if he/she works more than 5 days in a week – Extension of ordinary hours up to 15 minutes per day but not more than 60 minutes per week 11 Basic Conditions of Employment Act Overtime – Only applies if earning less than R149 736 per annum – Must be by agreement – – – Can’t agree to work more than 12 consecutive hours per day Can’t agree to work more than 10 hours of overtime per week One and a half times ordinary wage / paid time off within 1 month of becoming entitled to it 12 Basic Conditions of Employment Act Meal Intervals – Only applies if earning less than R149 736 per annum – Employees who work continuously for more than 5 hours entitled to meal interval of 1 continuous hour – During meal interval, only required to perform those duties that can’t be left unattended 13 Basic Conditions of Employment Act Meal Intervals – Employee who works during meal interval entitled to be remunerated – Can agree in writing to reduce meal interval to 30 minutes – Dispense with meal interval if less than 6 hours per day 14 Basic Conditions of Employment Act Pay for work on Sundays – Entitled to double the wage if don’t normally work – If normally work then entitled to one and a half times – Paid time off to be granted within 1 month 15 Basic Conditions of Employment Act Daily and weekly rest period – Daily rest period of at least 12 consecutive hours – Can reduce to 10 hours if employee works on premises and gets 3 hour meal interval – Weekly rest period of at least 36 consecutive hours including Sunday, unless otherwise agreed – Can agree to reduce weekly rest period provided rest period in following week is extended – Can agree on 60 consecutive hours every 2 weeks 16 Basic Conditions of Employment Act Night Work – Only applies if earning less than R149 736 per annum – Between 18h00 and 06h00 – Must be by agreement – Shift allowance / reduction of working hours – Transport 17 Basic Conditions of Employment Act Night Work – Entitled to request medical examination in certain circumstances – Inform employees of health and safety hazards and of entitlement to medical exam – Maintain confidentiality of results of medical exam – Transfer employee to day work if employee’s health is suffering because of night work 18 Basic Conditions of Employment Act Public Holidays – Only applies if earning less than R149 736 per annum – Employee not required to work unless agreed – If public holiday falls from Monday to Friday, pay employee ordinary wage – If employee works, employer to pay double – Case law – see p 7 of the handbook 19 Basic Conditions of Employment Act Leave – – Only applies if work more than 24 hours per month Provisions don’t apply to leave granted in excess of minimum – Different types of leave – Employer can grant unpaid leave (must be reasonable) 20 Basic Conditions of Employment Act Annual Leave – Leave cycle: 12 months following commencement of employment or completion of previous cycle – Employee to be granted at least: – 21 consecutive days 1 day for every 17 days worked 1 hour for every 17 hours worked To be granted not later than 6 months after the end of the annual leave cycle 21 Basic Conditions of Employment Act Annual Leave – Accumulation of leave – see p8 of the handbook – Not required or permitted to take annual leave during any period of notice – Grant additional day of leave if public holiday falls on day employee would ordinarily work – Can’t pay employee in lieu of leave except on termination of employment 22 Basic Conditions of Employment Act Sick Leave – Sick leave cycle: the period of 36 months’ employment following commencement of employment or completion of the previous sick leave cycle – Entitled to the amount of days employee would normally work during a period of 6 weeks – But, during the first 6 months, employee entitled to 1 day for every 26 days worked – Entitled to wage would ordinarily have received 23 Basic Conditions of Employment Act Sick Leave – More than 2 consecutive days or on more than 2 occasions during an 8 week period AND doesn’t produce a medical certificate – not required to pay – Issued and signed by a medical practitioner or person certified to diagnose patients and registered with a professional council – – Traditional Health Practitioner’s Bill Not reasonably practicable to obtain certificate - can’t withhold payment unless assist employee in obtaining certificate 24 Basic Conditions of Employment Act Maternity Leave – Entitled to at least 4 consecutive months – Commence leave 4 weeks before expected date of birth unless otherwise agreed – Cannot work for 6 weeks after birth unless certified fit to do so – Entitled to 6 weeks if miscarriage during 3rd trimester or stillborn child – Employee to notify employer in writing of dates 25 Basic Conditions of Employment Act Maternity Leave – Not required to pay employee for maternity leave unless policy of doing so – Policy may provide for payment of 60% of normal salary – Employee entitled to claim remaining 40% from the Unemployment Insurance Fund – Total cannot amount to more than 100% of normal salary – Protection of employees before and after child birth 26 Basic Conditions of Employment Act Family Responsibility Leave – – Only applies to those employed for more than 4 months who work more than 4 days per week Entitled to 3 days’ paid leave in the event that: Employee’s child is born Employee’s child is sick Employee’s spouse, life partner, parent, grandparent, child, grandchild or sibling dies 27 Basic Conditions of Employment Act Particulars of employment and remuneration – Only applies if work more than 24 hours per month – Employer to provide employee with certain information in writing – see p10 of handbook – If information changes, employee to be provided with copy of revised document – Employers not permitted unilaterally to change terms and conditions – must consult 28 Basic Conditions of Employment Act Particulars of employment and remuneration – Statement of employees rights in prescribed form to be displayed at workplace – Written particulars to be kept by employer for 3 years post termination – Payment of remuneration by way of cheque, cash or direct deposit – Employer obliged to give certain information when paying an employee – see p11-12 of handbook 29 Basic Conditions of Employment Act Deductions – Only by written agreement or where permitted by law, court order or arbitration award – Deduction for loss or damage suffered by employer if: – Employee’s fault and during course of employment Opportunity to show why deductions should not be made Total amount of debt does not exceed actual amount of damage Total deductions do not exceed ¼ of remuneration Debt to be specified by employer in separate agreement 30 Basic Conditions of Employment Act Termination of employment – Only applies if work more than 24 hours per month – Notice of termination of not less than: 1 week if employed for 6 months or less 2 weeks if employed for between 6 months and 1 year 4 weeks if employed for 1 year or more or if a domestic or farm worker employed for more than 6 months 31 Basic Conditions of Employment Act Termination of employment – – – Notice to be given in writing Employer can’t give notice during any period of leave Employer can pay employee the remuneration he would have received had he worked in lieu of notice 32 Basic Conditions of Employment Act Termination of employment – Pay for any annual leave accrued and not taken and for any paid time off not taken – Dismissal for operational requirements: severance pay of at least 1 week for each completed year of service – No severance pay if refuses to accept reasonable alternative offer of employment – Certificate of service – see p13 of handbook 33 The Labour Relations Act Primary Objects – see p 14 of handbook Employees v Independent Contractors – Independent contractors are not employees – do not enjoy the protections afforded by labour legislation – Relationship with independent contractors - purely contractual – Substance over form of the contract 34 The Labour Relations Act Employees v Independent Contractors Common Law – Control Test: extent to which work controlled by the employer – Organisation Test: part and parcel of the organisation? – Dominant Impression Test: relationship and contract as a whole – Economic Test: who profits from the work done – Case law - see p16 of the handbook 35 The Labour Relations Act Employees v Independent Contractors Definition of an “Employee” – Any person, excluding an independent contractor, who works for another person or for the state and who receives or is entitled to receive any remuneration – Any person who in any manner assists in the carrying on or conducting the business of an employer 36 The Labour Relations Act Employees v Independent Contractors - s200A of the LRA and s83A of the BCEA – – – – Burden is on the individual to prove that he is an employee Rebuttable presumption – if triggered shifts the burden of proving that an individual is not an employee to the employer The presumption is activated if any one of the listed factors is present Factors – see p16-17 of the handbook 37 The Labour Relations Act Employees v Independent Contractors - s200A of the LRA and 83A of the BCEA – – Does not apply to persons earning in excess of R149 736 per annum – onus on the individual to prove he is an employee Procedural rather than substantive change – only modifies the burden of proof 38 The Labour Relations Act Employees v Independent Contractors – Legal Principles – Independent Contracting Not protected by the labour legislation Relationship is governed by contract Pacta sunt servanda – the content of the contract is the determining factor Termination – determined exclusively by provisions of the contract 39 The Labour Relations Act Employees v Independent Contractors – – Legal Principles – Employees Protected by labour legislation Termination must be on statutorily recognised ground – misconduct, incapacity or operational requirements Substantively and procedurally fair Tax Implications – see p18 of handbook 40 The Labour Relations Act Dismissal – Right not to be unfairly dismissed – Substantive and procedural fairness – Substantive – only 3 statutorily recognised grounds Misconduct Incapacity (poor work performance, ill health or injury and possibly incompatibility) Operational requirements (retrenchment) 41 The Labour Relations Act Dismissal – Procedural fairness – depends on the reason – Employer bears the onus of showing dismissal was substantively and procedurally fair – Schedule 8 to the LRA: Code of Good Practice: Dismissal (“the Code”) sets out guidelines 42 The Labour Relations Act Dismissal – Section 186 - Meaning – Failure to renew a fixed term contract or renewal on less favourable terms where there is a reasonable expectation of renewal – Refusal to allow an employee to resume work after maternity leave – Selective re-employment after dismissal of a group of employees for the same/similar reasons 43 The Labour Relations Act Dismissal - Section 186 - Meaning – Termination by the employee because continued employment was intolerable – Termination by the employee because of substantially less favourable terms and conditions following a transfer 44 The Labour Relations Act Dismissal - Misconduct – Substantive fairness On a balance of probabilities the employee committed the misconduct Dismissal must be the appropriate sanction – all circumstances Misconduct must be so serious that it renders the continued employment relationship intolerable 45 The Labour Relations Act Dismissal - Misconduct – Substantive fairness – Item 7 of the Code Did the employee contravene a rule or standard regulating conduct in the workplace? Was the employee aware or could he reasonably be expected to have been aware of the rule or standard? Has the rule or standard been consistently by the employer? Is dismissal the appropriate sanction in all the circumstances? 46 The Labour Relations Act Dismissal - Misconduct – Procedural fairness Employee made aware of the allegations and given proper opportunity to state case in response Doesn’t have to be formal disciplinary enquiry or “mini trial” - natural justice must be observed Case law - see p21 of the handbook 47 The Labour Relations Act Dismissal - Misconduct – Procedural fairness - Item 4(1) of the Code Conduct an investigation to determine if there are grounds for dismissal – does not have to be a formal enquiry Notify the employee of the allegations Allow the employee an opportunity to state a case in response 48 The Labour Relations Act Dismissal - Misconduct – Procedural fairness - Item 4(1) of the Code Give the employee reasonable time to prepare and allow the assistance of a fellow employee or trade union representative Communicate the decision – preferably written notification – Written disciplinary codes - guideline only – Case law - see p21 of the handbook 49 The Labour Relations Act Dismissal - Misconduct – Other guidelines contained in the Code Only acts of misconduct that are sufficiently serious or repeated are dismissible offences Discipline should be progressive Not sufficient to simply give notice of termination in terms of contract where employee has committed misconduct 50 The Labour Relations Act Dismissal - Misconduct – Other guidelines contained in the Code Fairness judged on a case by case basis – the nature of the relationship, aggravating and/or mitigating circumstances play a role Employers should adopt written disciplinary codes An employee should be given the reason for his dismissal and reminded of his rights to refer the matter to the CCMA 51 The Labour Relations Act Dismissal – Incapacity Poor Work Performance – Fail to meet the required performance standard? – Aware of the required performance standard (could reasonably have been expected to be aware)? – Fair opportunity to meet required performance standard? – Is dismissal the appropriate sanction? 52 The Labour Relations Act Dismissal – Incapacity Poor Work Performance – “No fault” dismissal – sympathetic approach – Employer must: Inform employee timeously of the deficiency in performance Give the employee guidance and instruction; Give the employee a reasonable opportunity to improve Consider alternatives to dismissal 53 The Labour Relations Act Dismissal – Incapacity Poor Work Performance – Tenured employees Should not be dismissed unless they have been given evaluation, instruction, training, guidance or counseling Dismissal – last resort Investigate reason for the poor performance 54 The Labour Relations Act Dismissal - Incapacity Poor Work Performance – Must be a reasonable standard in existence – Objective proof that employee performing below required standard – Senior employees Higher standard of performance expected Requirements re training, counseling and guidance not applied as stringently – able to assess performance and take remedial action independently 55 The Labour Relations Act Dismissal – Incapacity Poor Work Performance – Is dismissal appropriate? Employee’s position Standard of work required Degree or seriousness of failure to perform Length of service Past record of performance Additional training, guidance and instruction? Transfer? 56 The Labour Relations Act Dismissal – Incapacity Poor Work Performance – Probationary employees – Item 8 of the Code Purpose – opportunity to evaluate the employee’s performance Period must be reasonable – nature of the job and the time it takes to determine the employee’s suitability Employee’s performance has to be assessed - give reasonable evaluation, training, guidance or counseling 57 The Labour Relations Act Dismissal - Incapacity Poor Work Performance – Probationary employees – Item 8 of the Code Advise the employee of aspects in which he is falling below the required standard May extend the probation or dismiss after allowing an opportunity to make representations Period of extension - purpose the employer intends to achieve Reason for dismissal may be less compelling but a proper procedure must be followed 58 The Labour Relations Act Dismissal – Incapacity Ill Health or Injury – – – Temporary or permanent? Likely to be absent for an unreasonably long time – investigate all alternatives short of dismissal Relevant factors Nature of the job Period of absence Seriousness of ill health or injury Possibility of securing a temporary replacement 59 The Labour Relations Act Dismissal – Incapacity Ill Health or Injury – – Permanent incapacity – ascertain possibility of securing alternative employment adapting the duties or work circumstances to accommodate the employee Procedure – consult, allow opportunity to state case and be represented by fellow employee or trade union representative 60 The Labour Relations Act Dismissal – Incapacity Ill Health or Injury – Dismissal fair? Employee capable of performing the work? If not, extent to which he is able to perform Extent to which work circumstances or duties can be adapted to accommodate employee Availability of suitable alternative work 61 The Labour Relations Act Dismissal - Incapacity Ill Health or Injury – HIV/AIDS Code Management of HIV/AIDS in the workplace Measures to reduce the impact – Policies – Programmes – Counseling – Employee assistance 62 The Labour Relations Act Dismissal – Incapacity Ill Health or Injury – HIV/AIDS Code May not be required to undergo HIV testing unless LC determines it is justified – must approach LC for authorisation Voluntary testing permitted if initiated by the employee only Conditions – Presence of a health care worker – Informed consent and counseling – Strict confidentiality 63 The Labour Relations Act Dismissal – Incapacity Ill Health or Injury – HIV/AIDS Code May not dismiss on the basis of HIV/AIDS status – unfair discrimination and automatically unfair If HIV/AIDS causes an inability to work can dismiss for incapacity Additional obligations on the employer to maintain confidentiality 64 The Labour Relations Act Dismissal - Operational Requirements – Economic, technological, structural or similar needs – “No fault” dismissals – Fair reason – a “commercial rationale” which is coherent and justifiable and does not conceal some ulterior motive – Courts reluctant to judge the commercial rationale of an employer’s decision to retrench – Clear articulation of the commercial rationale essential 65 The Labour Relations Act Dismissal - Operational Requirements – – Fair Procedure Disclosure of information Consultation Information to be disclosed in writing Reasons for the proposed dismissals Alternatives that were considered before proposing the dismissals and reasons for rejecting them 66 The Labour Relations Act Dismissal - Operational Requirements – Information to be disclosed in writing The number of employees – – Employed – Retrenched in the last 12 months – Likely to be affected and the job categories in which they are employed The proposed method for selecting which employees to dismiss 67 The Labour Relations Act Dismissal - Operational Requirements – Information to be disclosed in writing The time when the dismissals are likely to take effect The proposed severance pay Any assistance the employer proposes to offer The possibility of future re-employment 68 The Labour Relations Act Dismissal - Operational Requirements – Consultation – four key issues Timing of the consultation With whom to consult Content and scope of the consultation process Purpose of the consultation 69 The Labour Relations Act Dismissal - Operational Requirements – – Timing of the consultation As soon as contemplate retrenchment Before final decisions are made Written invitation to consult Case law – see p35 of handbook Whom to consult Trade union whose members are likely to be affected by the proposed dismissals Employees likely to be affected who are non union members - individually or as a group or with their nominated representative 70 The Labour Relations Act Dismissal - Operational Requirements – Attempt to reach consensus on: Appropriate measures to: – Avoid the dismissals – Minimise the number of dismissals – Change the timing of the dismissals – Mitigate the adverse effects The method for selecting employees to be dismissed Severance pay 71 The Labour Relations Act Dismissal - Operational Requirements – – Purpose of the consultation Attempt to reach consensus on each of the issues Allow employees to make representations Consider and respond to representations - final decision making power rests with the employer Selection criteria must be: Agreed Fair and objective Case law – see p35 of the handbook 72 The Labour Relations Act Dismissal - Operational Requirements – Severance pay Minimum 1 week’s remuneration for each completed year of service Informed by – The commercial rationale for the retrenchments – What the company is able to afford – Published policies and past practice – Collective agreements Unreasonably refuses an alternative offer of employment - not entitled to severance pay 73 The Labour Relations Act Automatically Unfair Dismissals – The employer acts contrary to section 5 of the LRA (freedom of association) – Participation in a protected strike – Refusal to do work normally done by an employee who is on a protected strike UNLESS the work is necessary to prevent danger to life, personal safety or health – To compel the employee to accept a demand in respect of a matter of mutual interest – The employee’s pregnancy, intended pregnancy or any reason related to the employee’s pregnancy 74 The Labour Relations Act Automatically Unfair Dismissals – Unfair discrimination against the employee BUT note Inherent requirement of the job The normal or agreed retirement age – The employee exercised or indicated an intention to exercise a right in terms of the LRA – A transfer or a reason related to a transfer of a business as a going concern – A contravention of the PDA on account of the employee having made a protected disclosure 75 The Labour Relations Act Automatically Unfair Dismissals – – Once it is proved that the dismissal is for one of the listed reasons the employer can raise no defence Maximum compensation – 24 months’ remuneration – Onus - on the employee to show that the reason for the dismissal is an automatically unfair reason – Employer must then show on a balance of probabilities that reason for dismissal is not an automatically unfair one. Then show substantively and procedurally fair 76 The Labour Relations Act Constructive Dismissal – An employee terminates a contract of employment because the employer made continued employment intolerable for the employee – Have to show: Resigned Intolerable to remain in employment Intolerable circumstances of the employer’s making Reason for resignation causally linked to the intolerable circumstances created by the employer’s conduct 77 The Labour Relations Act Constructive Dismissal – Employer’s conduct must be unfair or wrongful – Does not have to be intentional – – – Employee’s circumstances viewed in context to establish whether resignation constitutes a reasonable response to the employer’s conduct Objective test Once employee has proved constructive dismissal – onus shift to employer to show conduct was fair 78 The Labour Relations Act Failure to renew a fixed term contract – Can amount to dismissal if don’t renew or renew on less favourable terms – Onus on employee - prove a reasonable expectation of renewal – Consider Representations made by the employer Provisions of the contract itself Past practice of renewal; and Purpose of the fixed term contract – Objective test – Case law – see p39-40 of the handbook 79 The Labour Relations Act Unfair Labour Practices – Any unfair act or omission that arises between an employer and an employee involving: Unfair conduct by the employer relating to: – Promotion – Demotion – Probation – Training – The provision of benefits 80 The Labour Relations Act Unfair Labour Practices – Any unfair act or omission that arises between an employer and an employee involving: Unfair suspension or any other disciplinary action short of dismissal Failure or refusal to reinstate or re-employee a former employee in terms of an agreement An occupational detriment, other than dismissal, in contravention of the PDA on account of the employee having made a protected disclosure in terms of that Act 81 The Labour Relations Act Unfair Labour Practices – Is there an existing employment relationship? – Has a right has been infringed or is a right about to be infringed? – Most important consideration - fairness – Unfair conduct v unfair discrimination – – Definition of “benefits” problematic – haphazard approach by the courts – see p 42 of the handbook If remuneration were included it would affect the right to strike about remuneration increases 82 The Labour Relations Act Remedies for Unfair Dismissals – Reinstatement – Re-employment – – Compensation – 12 months’ remuneration for an unfair dismissal, 24 months’ remuneration for an automatically unfair dismissal Reinstatement or re-employment unless Employee doesn’t wish to be reinstated Continued employment relationship intolerable Not reasonably practicable Dismissal is only procedurally unfair 83 The Labour Relations Act Remedies for Unfair Labour Practices – An arbitrator may determine the dispute on terms he deems reasonable which may include ordering Reinstatement Re-employment Compensation – Maximum compensation – 12 months’ remuneration – The remedy should aim to correct the unfair conduct 84 The Employment Equity Act Overview and Application – see p 48 of the handbook The Prohibition of Unfair Discrimination – No person may unfairly discriminate, either directly or indirectly, against an employee, in any employment policy or practice on one or more grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth 85 The Employment Equity Act The Prohibition of Unfair Discrimination – – – Employment policy or practice is widely defined to include almost every aspect of the employment relationship “Employee” includes applicants for employment – recruitment and selection procedures cannot be unfairly discriminatory Harassment – expressly included as a form of unfair discrimination and prohibited 86 The Employment Equity Act The Prohibition of Unfair Discrimination – Differentiation? – Discrimination? – Differentiation that is unjustifiable, prejudicial or demeaning Singled out for differential prejudicial treatment on some unacceptable ground Effect - not the intention of the perpetrator Fair or unfair? Objective justification or commercial rationale for the differentiation? e.g. affirmative action or an inherent requirement of the job 87 The Employment Equity Act The Prohibition of Unfair Discrimination – The employee bears the onus of proving the discrimination – The employer bears the onus of proving that it was not unfair – Discrimination on one of the listed grounds is presumed to be unfair – If discrimination is alleged on an unlisted ground, the complainant must establish unfairness – – Direct discrimination – adverse action taken against people precisely because they possess one of the listed characteristics Indirect discrimination – the employer imposes an apparently neutral criterion on all employees but it has a discriminatory effect on certain groups 88 The Employment Equity Act The Liability of Employers – – – Discriminatory act perpetrated by an employee employer required to “consult all relevant parties” Employer fails to take such steps - employee’s contravention of the EEA will be attributed to the employer unless the employer can show that it did “all that was reasonably practicable” to ensure that the employee would not contravene the provisions of the EEA Case law – see p50 of the handbook 89 The Employment Equity Act Sexual Harassment – Code of Good Practice Objective – eliminate sexual harassment in the workplace Sexual harassment - unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace taking into account: – Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation – Whether the sexual conduct was unwelcome – The nature an extent of the sexual conduct and the impact of the conduct on the employee 90 The Employment Equity Act Sexual Harassment – Code of Good Practice Includes physical contact, verbal innuendos, suggestions, hints, comments with sexual overtones etc Management must take active steps towards eliminating sexual harassment by issuing policy statements and procedures Implement education and training programmes Informal resolution or formal proceedings (incl. disciplinary action) A victim can refer a dispute to the CCMA for conciliation and then to the LC for adjudication – maximum 24 month’s remuneration as compensation 91 The Employment Equity Act Medical Testing – Prohibited unless legislation permits it or it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of benefits or the inherent requirements of a job – HIV testing prohibit unless the Labour Court determines it is justified or it is voluntary and anonymous Psychological Testing – Prohibited unless test is scientifically valid and reliable, can be applied fairly to all employees and is not biased against any employee or group 92 The Employment Equity Act Applicants for Employment – Identify requirements for the job and level of competency required – interview accordingly – Avoid irrelevant questions that may be discriminatory – Give unsuccessful applicants reasons if requested Unfair Discrimination Disputes – Must be referred to the CCMA within 6 months after the act or omission that allegedly constitutes unfair discrimination – Conciliation – LC for adjudication unless the parties consent to arbitration by the CCMA 93 The Employment Equity Act Affirmative Action – – – Designated employer Employs 50 or more employees; or Has an annual turnover between R2 million and R25 million Designated groups Black people Women People with disabilities Chinese people – see p55 of the handbook 94 The Employment Equity Act Affirmative Action – Consult with employees – Conduct an analysis of employment practices, procedures and the working environment to identify employment barriers – Draw up an employment equity plan – see p55-56 of the handbook – Report to the DG of the Department of Labour on its progress in implementing the plan – see p56-57 of the handbook – Analysis must include a profile of the workforce in each occupational category and determine the level of under representation of workers from designated groups in each category 95 Compensation for Occupational Injuries and Diseases Act Overview – System of compensation for work related illness, injury, disease or death – Tariff based on annual earning of employees – Employers relieved from liability for damages of employees for work related illness, injury, disease or death Definition of Employee and Employer – See p60 of the handbook 96 Compensation for Occupational Injuries and Diseases Act Compensation for Injuries – Accident arising out of and in the course of an employee’s employment and resulting in a personal injury – Generally excludes travel to and from work – Employee guilty of misconduct – no compensation unless: – Serious disablement Employee dies and leaves a financial dependant Case law - see p61 of the handbook 97 Compensation for Occupational Injuries and Diseases Act Compensation for Occupational Diseases – To qualify for compensation, the employee must show the disease has arisen out of and in the course of employment If the disease is listed in Schedule 3 – presumed to arise out of and in the course of employment If not a disease listed in Schedule 3 - the employee must show that the disease arose in the course of employment 98 Compensation for Occupational Injuries and Diseases Act Section 35 – No action for damages lies against the employer and the employer cannot be held liable for compensation – Section 35 not a violation of s9 of the Constitution – Employees’ common law rights excluded – Case law – see p 62 of the handbook 99 Compensation for Occupational Injuries and Diseases Act Recovery of Damages and Compensation from Third Parties – – – Employee can claim directly from a 3rd party in terms of COIDA Director General of the Department of Labour (“DG”) may claim from the 3rd party after paying the employee in terms of COIDA Amount cannot exceed the amount that would be payable under COIDA 100 Compensation for Occupational Injuries and Diseases Act Employers’ Obligations – Register with the compensation commissioner – Keep record of: – – Earnings Other prescribed particulars of employees DG assesses and calculates percentage of employee’s earnings to be paid to the commissioner annually Failure to register is a criminal offence but does not prejudice an employee’s claim for compensation 101 Compensation for Occupational Injuries and Diseases Act Calculation of Benefits – Based on employees’ earnings at the time of the accident or contracting of the disease – Includes value of food, accommodation etc given to the employee – Formula contained in Schedule 4 of COIDA – Temporary v Permanent Disability – Medical attendant allowance – Survivor and funeral benefits 102 Compensation for Occupational Injuries and Diseases Act Employer Negligence – Employee may claim increased compensation from the Fund – Caused by patent defect in the condition of the premises, place of employment, equipment, material or machinery which the employer has failed to remedy – Application must be lodged within 24 months – may be extended – DG has discretion as to the amount to be paid – Cannot exceed the amount of pecuniary loss which the employee has or can reasonably be expected to suffer as a direct result of the accident or occupational disease 103 Compensation for Occupational Injuries and Diseases Act Procedure – Give employer written or verbal notice of an accident as soon as possible after it happens – Employer must report the accident to the compensation commissioner within 7 days of receiving notice of the accident – Failure to report - fine not exceeding the value of the compensation – DG - inquiry to decide validity of the claim and the extent of liability Prescription – Lodge claim within 12 months of the accident or death 104 The Occupational Health and Safety Act Duties of the Employer – Generally: To provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risks to health – Certain Specific Duties e.g. Provide and maintain systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health Take such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment 105 The Occupational Health and Safety Act Duties of the Employee – Generally: To act in a manner that is conducive to safety – Certain Specific Duties e.g. Take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions Carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety 106 The Occupational Health and Safety Act Non-compliance – Maximum penalty for negligently causing an injury - R100 000 fine or 2 years imprisonment or both – Contravention of a provision - R50 000 fine or 12 months imprisonment or both 107 The Protected Disclosures Act – ‘Whistleblowers Act’ – Designed to encourage a culture of whistle-blowing in the workplace – Section 3 - No employee may be subjected to an occupational detriment by his employer as a result of having made a protected disclosure – Elements Disclosure Protected Occupational Detriment 108 The Protected Disclosures Act Disclosure – Disclosure of information made by an employee regarding the conduct of an employer which shows or tends to show: Commission of a criminal offence Failure to comply with a legal obligation Miscarriage of justice Danger to the health and safety of an individual Damage to the environment Unfair discrimination in terms of the PEPUDA The deliberate concealment of any of the above 109 The Protected Disclosures Act Protected Disclosure – A disclosure made to: A legal advisor An employer A member of the Cabinet or of the executive council of a province The Public Protector or the Auditor-General Any other body or person in terms of the PDA 110 The Protected Disclosures Act Occupational Detriment – Disciplinary action – Dismissed, suspended, demoted, harassed or intimidated – Transferred against the employee’s will – Refused transfer or promotion – Subjected to a term and condition of employment or retirement which is altered to the employee’s disadvantage 111 The Protected Disclosures Act Occupational Detriment – Refused a reference or being provided with an adverse reference from the employer – Denied appointment – Threatened with any of the above actions – Otherwise adversely affected in respect of his employment, profession or office, including employment opportunities and work security 112 The Protected Disclosures Act Protected disclosures made to the employer – Must be made: In good faith Substantially in accordance with any procedures (prescribed or authorised) by the employer for reporting or otherwise remedying the impropriety If there is no procedure, directly to the employer 113 The Protected Disclosures Act General Protected Disclosures – Made in good faith – The disclosed information is substantially true – The disclosure is not made for personal gain 114 The Protected Disclosures Act General Protected Disclosures – Protected if The employee has reason to believe that: – He will be subjected to an occupational detriment if he or she makes a disclosure to his or her employer – It is likely that evidence relating to the impropriety will be concealed or destroyed if he or she makes the disclosure to his or her employer 115 The Protected Disclosures Act General Protected Disclosures – Protected if The employee has previously made a disclosure of substantially the same information to his or her employer; or the Public Protector, Auditor General or any person or body referred to in terms of the PDA - no action was taken within a reasonable period after the disclosure The impropriety is of an exceptionally serious nature AND The disclosure is reasonable 116 The Protected Disclosures Act Reasonableness – Identity of the person to whom the disclosure is made – Seriousness of the impropriety – Whether the impropriety is continuing or is likely to occur in the future – Whether the disclosure is made in breach of a duty of confidentiality of the employer towards any other person 117 The Protected Disclosures Act Reasonableness – Whether any action which the employer or the person or body to whom the disclosure was made was taken, or might reasonably be expected to have taken, as a result of the previous disclosure – Whether in making the disclosure to the employer the employee complied with any procedure which was authorised by the employer – The public interest 118 The Protected Disclosures Act Remedies – An occupational detriment constitutes an unfair labour practice – May be awarded compensation up to the equivalent of 12 months remuneration – If dismissed as a result of having made a protected disclosure - automatically unfair – May be awarded compensation up to the equivalent of 24 months remuneration 119 The Unemployment Insurance Act – Provides for payment of unemployment benefits in respect of temporary unemployment arising from the termination of the employee’s services, illness, maternity and adoption – Entitles dependants of contributing employees to benefits upon the death of the employee – Establishes the UIF – Employer and employee contribute equally to the UIF and benefits owing to an employee are deducted from the UIF – Employer must register with the Unemployment Commissioner or SARS – Offence under UIA: fine or imprisonment or both 120 Immigration Law Immigration Act – Regulates right of foreign nationals to live and work in RSA – Permanent Residence All rights, privileges, duties and obligations of a citizen except those granted to citizens only by the Constitution May be obtained directly or on other grounds 121 Immigration Law Section 26 – Direct Residence Permit – Section 27 – Residence on Other Grounds – See p71 of the handbook See p71-72 of the handbook Temporary Residence – Foreigners who come into the country for a specific period of time 122 Immigration Law Work permits: – General Quota Work Permit – General Work Permit – Exceptional Skills or Qualification Permit – Intra-Company Transfer Work Permit – Other Temporary Residence Permits – See p72 of the handbook 123 The Prevention and Combating of Corrupt Activities Act Duty to report falls on: – A person in a position of authority – Who knows or ought reasonably to have known or suspected; – That any other person has committed an offence as defined in the PCCA – see p74 of the handbook – Involving an amount of R100 000 or more Report must be made to a police official Failure to report is an offence 124