Optimum Labour Law

09/05/2022

NEW COVID RULES – MASKS AT WORK

The 5th of May 2022 marked the end of the transitional period under the Disaster Management Act Regulations.

However, to ensure that there is no gap in the legal framework when it comes to containing the spread of Covid-19, limited regulations under the National Health Act were published. These interim NHA regulations are largely similar to the transitional DMA Regulations that applied during the last month.

In particular, the interim NHA regulations provide:

1. For the wearing of face masks when entering and being inside an indoor public place or when using public transport.
2. For capacity limitations and number restrictions on gatherings; and
3. For the regulation of international travelers entering South Africa.

Thus………Mandatory mask-wearing may continue.

While the current legal position on mask-wearing at the workplace may not be entirely clear, the legal position may be clarified once the full regulations under the National Health Act are promulgated. In the meantime, employers are advised not to throw caution to the wind and to think carefully before lifting mask requirements.

Contact Optimum Labour Law for any queries or to book a consultation.

072 774 9178
[email protected]
Legal Advisor, Labour Relations, and Employment Law Specialist

05/05/2022

UNILATERAL WITHDRAWAL OF RESIGNATION

What happens when an employee tenders and then unilaterally seeks to withdraw a resignation?

This was the question before the Labour Court in the recent case of Mohlwaadibona v Dr JS Moroka Municipality.

“The court held that resignation is by definition a voluntary and unilateral act that puts an end to the employment relationship,” Moreover, it takes effect the moment it is communicated to the employer, and it is incapable of being withdrawn unless the employer consents to it. That is true even where an employee is contractually obliged to serve a notice period and fails to honour that obligation.”

In essence, the court gave credence to the fact that when an employee voluntarily elects to communicate their intention to terminate the employment relationship, that election cannot be unilaterally withdrawn once it has been communicated to the employer.

Contact Optimum Labour Law for any queries or to book a consultation.

Legal Advisor, Labour Relations, and Employment Law Specialist
072 774 9178
[email protected]

03/05/2022

MONITORING OF EMPLOYEES

South African companies may establish an email monitoring policy in their employment contracts. This policy often covers both private and business use of emails.

“Our Constitution respects a person’s right to privacy. The Protection of Personal Information Act (POPIA) further entrenches personal data protection rights,” “An employer is entitled to expect that employees will not use their emails to violate company policies, use inappropriate language, break confidentiality, or run their own business on company time.”

These clauses typically provide that employees should not expect privacy when sending, receiving, downloading, uploading, printing or otherwise transmitting emails. And that employees must use emails for bona fide business purposes only.

In terms of POPIA, an employer who processes an employee’s personal information must:
• Do so reasonably and without negatively impacting their rights as data subjects.
• Do so with the data subject’s informed, express, and voluntary consent.
• Explain the purpose of such monitoring interception, to enable the employees to perform their duties and assist the employer in meeting its legal, business, administrative and management obligations.

WhatsApp and confidentiality

These policies can also include other forms of communication – including messaging services such as WhatsApp.

An employer is typically responsible for the conduct of its employee where the employees are acting within the course and scope of their employment.

For that reason, if an employee is using WhatsApp to conduct the business of their employer, the employer must ensure that these activities are POPIA compliant, he said.

He added that there are several provisions that may apply under POPIA, including requirements pertaining to:

• The transfer of data to third parties outside South Africa;
• The retention of personal information;
• The security of the personal information;
• The purpose for which the personal information is being used.

“If an employer is making use of WhatsApp, it must treat these messages as it treats any other technology – such as emails, VOIP, regular mail etc.”

Employers should also be mindful of any contractual confidentiality provisions that may apply to it – including those that may restrict its use of certain technologies, such as WhatsApp.

“Finally, it is important to remember that WhatsApp and other messaging tools are operated by third parties, so employers should always be mindful of any regulatory requirements that may restrict how they provide data to third parties.

Contact Optimum Labour Law for any queries or to book a consultation.

Labour Relations, and Employment Law Specialist
072 774 9178
[email protected]

28/04/2022

MOONLIGHTING AND SIDE HUSTLES

This was recently dealt with in the case of Bakenrug meat (PTY) Ltd t/a Joostenberg Meat v CCMA and others in which this question was considered by the court.

“The employer’s business in this matter was the production and sale of a range of meat products. The employee was a sales representative at the business. However, the employee also operated a business of her own in which she marketed biltong.

“When the employer became aware of this, she was dismissed after being found guilty of the charge ‘that she took up employment while working in another capacity’. Aggrieved by this, the employee then referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), alleging that her dismissal was substantively unfair.”

The CCMA commissioner found that the dismissal was substantively fair because the employee independently operated a formal business that marketed a meat product while the employer was also producing and selling meat products in which she was the salesperson.

Labour Appeal Court

The Labour Appeal Court (LAC) overturned the Labour Court’s decision on appeal.

The ruling justice Davis held that there was clear evidence that the employee did not disclose an essential and material fact that she was independently operating a business in marketing meat products, even if the meat products were not identical to the employer’s.

“The fact that operating her business did not affect her performance was insignificant. What was important is that she was employed as a sales representative in a business marketing meat products, while she was also involved in marketing meat products.

“Her failure to inform the employer of these martial activities
amounted to dishonesty and a violation of her duty of good faith towards the employer. Davis JA, therefore, found that based on the evidence, the commissioner arrived at a reasonable decision that the dismissal was substantively fair and set aside the judgment of the court a quo.”

Conclusion

“The importance of this case is that it illustrates the extent of the “duty of good faith” that employees owe to their employer and that there can be far-reaching consequences for an employee if this duty is breached,”

Contact - [email protected] or 072 774 9178

26/04/2022

Workers in South Africa are fighting back against vaccine mandates

Some employers implementing their vaccination policies are being met with resistance from employees or anti-vaccination groups, together with threats of civil and criminal liability.

Compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA)

According to the ‘Notice on Compensation for Covid-19 Vaccination Side-Effects’ published in terms of section 6A(b) of Coida, the Compensation Fund will cover employees for injuries, illness or death as a result of receiving a Covid-19 vaccine where the employee was required by the employer to receive the vaccination as an inherent requirement of employment, or where vaccination is required based on the Occupational Health and Safety Risk Assessment conducted by the employer.

In order for compensation to be payable:
• The vaccination must be regarded as an inherent requirement of the job as determined by the employer’s risk assessment;
• The employee must have been vaccinated with a Sahpra-approved Covid-19 vaccine;
• To the extent required, evidence must be provided of the employer’s risk assessment and vaccination plan;
• The chronological sequence between the vaccine inoculation and the development of symptoms and clinical signs must be provided;
• The employee must have presented with symptoms and clinical signs that are generally recognised as side effects of the Covid-19 vaccine; and
• Additional tests may be required to assess the presence of abnormalities of any organ affected.

“It is a well-established principle that, if compensation is payable in terms of Coida, the employee has no claim for civil damages against the employer, because the common law right to claim damages is substituted in terms of section 35 of Coida,”

“In order to submit a claim for compensation in terms of Coida, there is no need for an employee to prove fault on the part of the employer. Fault is however relevant if the employer was negligent, which may entitle an employee to claim increased compensation.”

The Covid-19 vaccination injury no-fault compensation scheme

The Covid-19 Vaccination Injury No-Fault Compensation Scheme was established by the Disaster Management Act Regulations and continues to apply even now that the National State of Disaster has ended.

It was established to provide expeditious and easy access to compensation for persons who suffer harm, loss or damage as a result of a vaccine injury.

Persons eligible to claim compensation in terms of the Scheme are those who have suffered a serious vaccine injury resulting from the administration of an applicable vaccine at an official vaccination site, or their dependents who have suffered harm, loss or damage caused by the death of the deceased person.

A person who has submitted a claim for compensation under Coida for a vaccine injury shall not be eligible for compensation in terms of the scheme.

“Any person who elects to submit a claim to the scheme waives and abandons their right to institute legal proceedings in a court against any party for a claim arising from harm, loss or damage allegedly caused by a vaccine injury.

Since the scheme does not require fault to be proven (it requires causation) and since it is intended that processing a claim will be more cost-effective and expeditious than civil proceedings, the scheme may be the more attractive option for a claimant or their dependants, the firm said.

“Whether claimants choose to submit a claim for compensation in terms of the scheme rather than to litigate will, in our view, be dependent on the cost-effectiveness, accessibility, timeous claims process and the extent of the loss suffered.”

In the event that a claimant or their dependents do not meet the requirements for a claim for compensation in terms of Coida, or they elect not to claim from the Scheme, a claimant or their dependants may still have a claim for civil damages including for pain, suffering and loss of amenities of life in delict against the employer.

Contact: Optimum Labour Law – 072 774 9178 or [email protected] for a free consultation should you have any queries or related concerns.

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04/04/2022

New workplace rules every business and worker in South Africa should know about
Employment and Labour minister Thulas Nxesi recently published three important legal developments affecting South African employers and employees:
• The Draft National Labour Migration Policy and Employment Services Amendment Bill;
• The Code of Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022;
• The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.
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The draft National Labour Migration Policy and Employment Services Amendment Bill (Draft Bill)

The main thrust of the proposed changes includes the minister’s right to set maximum quotas for the employment of foreign nationals as employees or workers in any sector.

The minister may set a quota to apply by sector, occupation, region or nationally. An employer will only be entitled to exceed this maximum quota if they have applied for and been granted an exemption, or if the foreign national fills a position for which critical skills are required.

The Draft Bill entitles the Minister to make regulations regulating the employment of foreign nationals, including:
• Measures employers must take to confirm that there are no suitable persons for the role within South Africa;
• Requirements for employers to use a public employment service or private employment agency to assist employees to recruit suitable candidates;
• Requirements for the preparation of a skills transfer plan;
• The criteria and procedure to apply for an exemption from the minister;
• The records employers must keep in respect of foreign nationals.

Introduction of digital labour platforms and workers

The legislature proposes a new section to make provision for work or service provided to digital labour platforms.
A digital labour platform is defined as “an electronic entity that enables the provision of work or services to any other person in the republic”.
A platform that meets this definition is considered an employer of the person who performs the services or work, for the purpose of the Draft Bill.
The person performing the services is classified as a worker, which is defined as “any person who works for another and who receives, or is entitled to receive, any payment for that work, whether in money or in-kind”.
A digital labour platform will be considered to be the employer of the workers if (1) the digital labour platform determines the payment and/or terms and conditions of the work or services provided; and (2) the digital labour platform remunerates the worker.
The definition of worker will apply only in the context set out in the Draft Bill. The result of the inclusive nature of this definition is that the Minister may set the maximum quotas for the engagement of foreign nationals as platform workers.
Definition of a private employment agency

The requirement for a private employment agency to provide employment services “for gain” has been removed.
Therefore, a company that provides employment services to any other company will need to be registered and licensed to operate as a private employment agency, should the Draft Bill be enacted in its current form.
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The Code of Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022
The Code of Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022 (Covid code) will take effect when the national state of disaster in South Africa is lifted.
Among other things, the Covid code reiterates an employer’s right to implement a vaccine mandate and clarifies the grounds on which employees can refuse the vaccine. The Covid Code creates a legal framework for managing the pandemic and its impact on the workplace. The rules now make specific provisions for employers to ascertain their employees’ vaccination status.
Employers will no longer be required to screen employees daily for Covid-19 symptoms or report such information. Employees will only be obliged to inform employers when they have Covid-19 symptoms. Employers will be entitled to request a negative Covid-19 test to allow the employee to return to the office.
According to the new rules, employees would no longer have to limit their refusal to vaccinate to constitutional or medical grounds.
Where employees base their refusal on a contraindication to the vaccine, the employee must produce a medical certificate confirming this.

The employer may then request that the employee be medically assessed to confirm their medical status, which the employer must pay for. Employers must reasonably accommodate employees who refuse vaccination.
In recent cases at the CCMA, the employment tribunal has upheld numerous employers’ decisions to dismiss or suspend employees who refused to get vaccinated or take regular tests.
Taking into consideration the Covid Code, the updated regulations and a recent decision by the labour court, employers could implement an admission policy, which would require employees to present either a vaccination certificate or a negative Covid test (at the employees’ expense) in order to enter the office.
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Employment Equity Act – Code of Good Practice on the Prevention and Elimination of harassment in the Workplace
In March 2022, the minister published the Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work (Code) in the Government Gazette.

This Code, which is now in effect, has been guided by various conventions adopted by the International Labour Organisation, including the convention and recommendation on eliminating and preventing Violence and Harassment in the World of Work (Convention 190, 21 June 2019).

The Code replaces the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, as amended (Code of Good Practice). In addition, the new Code expands substantially on the different types of violence that an employee may experience in the workplace and what steps employers are required to take to deal with these forms of violence.
The Code lists four forms of violence and harassment in the workplace. These are:
Sexual violence and harassment
This includes any conduct that the person knows (or should know) is not welcome, offends the complainant or makes the complainant feel uncomfortable, and interferes with work. T
The Code lists various forms of conduct which would amount to sexual violence and harassment, including unwanted sexual attention and quid pro quo sexual harassment.

The Code also compels employers to consider further factors in a matter involving sexual violence and harassment. These factors include whether the conduct was unwelcome; the nature and extent of the conduct; and the impact of the conduct.

Racial, Ethnic, or Social origin violence and harassment
In terms of the Code, racial violence and harassment are types of conduct that demean, humiliate or create a hostile or intimidating work environment for a complainant.
This may include conduct that (1) intends to induce submission based on actual or threatened adverse consequences for the complainant and (2) relates to a person’s membership of a group.
Abusive language and racist jokes, racially offensive material, racist name-calling, negative stereotyping, offensive behaviour creating hostility, exclusion from workplace interaction and activities, and marginalisation and threatening behaviour fall under this form of violence and harassment.

Workplace bullying
Workplace bullying is unwanted persistent conduct (or a single incident), which is serious and demeans, humiliates, or creates a hostile or intimidating work environment.
This conduct includes a wide range of insulting, demeaning or intimidating behaviours that lower the self-esteem or self-confidence of an employee.

Some examples of workplace bullying include harassing; offending, professionally or socially excluding someone, or negatively affecting their work tasks.

30/03/2022

Sleeping on duty.

Employee found fast asleep with colleagues behind locked door during working hours.

Mini Case Summary:

The applicant employee, a shop steward, was found fast asleep with several of his colleagues by the production manager in a department in which they did not work, with the door of the department locked from inside. He was dismissed for sleeping on duty, endangering the lives of others and fraudulent timekeeping. The employee claimed that he and his colleagues had decided to change their tea break, that they had locked the door from inside because they feared that they might be attacked by armed robbers and that he was merely resting with his arms folded and his eyes closed. The applicant also claimed that his dismissal was procedurally unfair because his request to be represented by a union official had been refused. The respondent contended that the alleged fear of armed robbers was fabricated and that the workers were plainly sound asleep at a time they should have been working.

The Commissioner found the version of the applicant and his witnesses improbable. There had been no reason to lock the door from the inside and by doing so the lives of other workers could have been endangered because the door served as an emergency exit. The workers had not received permission to change their tea break and should have been working at the time. Furthermore, the applicant was on a valid final warning for being absent from his workplace. His dismissal was, accordingly, substantively fair.

As to the claim of procedural fairness, the Commissioner noted that the applicant had been represented by another shop steward at his disciplinary hearing. This constituted sufficient compliance with item 4(2) of the Code of Good Practice: Dismissal, which does not provide for representation by union officials.

The applicant's dismissal was upheld. Dismissal fair.

Contact Optimum Labour Law – 072 774 9178 or [email protected] for any queries or to book a free consultation.

24/03/2022

New Covid rules for workplaces in South Africa – and what it means for vaccine mandates

https://lnkd.in/d9vfgyBX

Contact Optimum Labour Law for any queries or to book a consult.

072 774 9178 or [email protected]

The Department of Employment and Labour has listed SARS CoV2 (Covid-19) as a group 3 hazardous biological agent (HBA) under South Africa’s Hazardous Biological Agents regulations, which has important implications for employers and businesses in South Africa.

22/03/2022

What is Harassment – The new Code of Good Practise.

The term ‘harassment’ is not currently defined in the Employment Equity Act, with the new code of practice defining it as:

1. Unwanted conduct, which impairs dignity;
2. Which creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences;
3. Is related to one or more grounds of which discrimination is prohibited in section 6(1) of the Employment Equity Act.

“Harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse gender-based abuse and racial abuse. It includes the use of physical force or power, whether threatened or actual, against another person or against a group or community.”

Types of harassment

Some of the specific examples of harassment highlighted in the code include:

1. Slandering or maligning an employee or spreading rumours maliciously;
2. Conduct that humiliates, insults, or demeans an employee;
3. Withholding work-related information or supplying incorrect information;
4. Sabotaging or impeding the performance of work;
5. Ostracising, boycotting or excluding the employee from work or work-related activities;
6. Persecution such as threats, and the inspiration of fear and degradation;
7. Intolerance of psychological, medical, disability or personal circumstances;
8. Surveillance of an employee without their knowledge and with harmful intent;
9. Use of disciplinary or administrative sanctions without objective cause, explanation or efforts to problem-solving;
10. Demotion without justification;
11. Abuse or selective use of disciplinary hearings;
12. Pressuring an employee to engage in illegal activities or not to exercise legal rights;
13. Pressuring an employee to resign.

Passive-aggressive or covert harassment may include:

Negative gossip; Negative joking at someone’s expense; Sarcasm; Condescending eye contact; Facial expressions; Gestures; Mimicking to ridicule; Deliberately causing embarrassment or insecurity; and deliberately sabotaging someone’s career performance.

Contact Optimum Labour Law – 072 774 9178 or [email protected] for any queries or to book a consultation.

17/03/2022

Optimum Labour Law provides a proactive, outsourced Industrial Relations management service, to assist and contribute to the overall management of companies daily needs.

Regardless of the size of the organisation, Optimum Labour Law aspires to identify and solve problem areas within the workplace, thereby ensuring the efficient operation of companies.

We are a strategic partner that offers a wide range of employment-related services, personal attention, and immeasurable long term benefits.

Our services include, but not limited to, managing issues relating to termination of employment; the provision of policies and procedures within an IR best practice framework; overseeing and coordinating relationships with unions and other representative bodies; dispute resolution; legislative compliance; labour audits; as well as training.

Optimum Labour Law allows you to take advantage of the knowledge and experience of our highly qualified specialists.

Client Benefits

1.We provide infrastructure and our dedicated IR practitioners assume complete responsibility for all your labour relations concerns.
2. We minimise stress and pressure in the workplace whilst managing complicated HR and IR matters.
3. We attend to the obligations associated with complex labour legislation.
4. A fixed monthly retainer fee facilitates your financial planning and budgeting process.
5. Our IR practitioners are merely a phone call away and are available for advice and assistance 24 hours a day.
6. By efficiently following policy and procedure, we enable the employer to focus on their core competencies.
7. Our clients can benefit from our knowledge, which includes sharing information, networking, and attaining experience from other employers.

Contact Sheldon on 072 774 9178 or [email protected]

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16/03/2022

COVID Regulations after the state of disaster lapses – The Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace.

As has been recently published, the national state of disaster has been extended by the Minister of Cooperative Governance and Traditional Affairs to 15 April 2022 under Section 3 of the Disaster Management Act No. 57 of 2002, in terms of Section 25(5)(c) of the Act.

As such, the Department of Labour and Employment, after consultations with Nedlac have issued a Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46043, dated 15 February 2022 (“the Code of Good Practice“) under the Labour Relations Act, 66 of 1995.



Contact Optimum Labour Law on 072 774 9178 for any related queries - [email protected]

14/03/2022

Dismissal for Incapacity

Incompatibility, for the purposes of employment law, is defined in the matter of Jabari v Telkom SA (PTY) LTD (2006) 27 ILJ 1854 LC. It states that incompatibility relates to an “employee’s inability to maintain cordial and harmonious relations with their peers”. Incompatibility does not form part of poor work performance but instead is an ability by an employee to conform to workplace standards. It is also important to note that while incompatibility is defined as a type of incapacity, where the employee’s actions transgress from mere detachment and disharmony into misconduct for contravening the employer’s code of conduct, the employer may take the necessary disciplinary action for misconduct.

Is there a test for incompatibility? This lies with the employer’s discretion ultimately. The employer has to set reasonable standards pertaining to the harmonious interpersonal relationships in the workplace, and the corrective action that would take place when an employee continuously transgresses the standards set.

The test for substantive fairness is to what extent the tension or disharmony caused by the employee was disruptive to the operations of the employer and whether the employer took all reasonable measures to address the disharmony.

The employer would have to allow the employee the opportunity to be counselled and advised as to what conduct causes the disharmony and which employees are upset by the behaviour of the employee as well as what remedial action has to be taken. The employee should be afforded an opportunity to meet the required standards.

The Courts have also determined that a reasonable time should be afforded to the employee to allow them to improve relations in the workplace, and that dismissal should only occur where the degree of incompatibility so impacted on the functions of the employer, that it can no longer be tolerated for the interest of efficient operations.

Optimum Labour Law is able to assist employers with all their labour law challenges, no matter the complexity. Contact us on 072 774 9178 so our team of experts can provide you with best practice advice and assistance.