south african labour law

8/9/2019 South African Labour Law

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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_Africa


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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_Act


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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_operarum


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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_MacDonald


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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_Health


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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_CCMA


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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.


8/75


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


9/75

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-


10/75

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]
https://en.wikipedia.org/wiki/South_African_labour_law#dismissalhttps://en.wikipedia.org/wiki/South_African_labour_law#Unfair_discriminationhttps://en.wikipedia.org/wiki/South_African_labour_law#Unfair_discrimination


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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.
https://en.wikipedia.org/wiki/Nawa_v_Department_of_Trade_and_Industryhttps://en.wikipedia.org/wiki/Mashegoane_v_University_of_the_North


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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?
https://en.wikipedia.org/wiki/Sexual_harassmenthttps://en.wikipedia.org/wiki/Code_of_Good_Practice_on_Handling_of_Sexual_Harassment_Caseshttps://en.wikipedia.org/wiki/Code_of_Good_Practice_on_Handling_of_Sexual_Harassment_Cases


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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

south african labour law

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