Tag: employment contract

The pandemic brought with it a slew of realisations for business owners, one such an epiphany is how most organisations need fewer employees to remain functional. But using COVID-19 as a reason for retrenching a surplus of employees constitutes as unfair dismissal.

The Job Seekers Exemption Certificate (JSEC) idea has been around for a long time. It was first presented to President Thabo Mbeki, who passed it on to the Department of Labour. But nothing was done with it. It seems that it is only when you are unemployed that you can understand that it will be like holding a piece of gold in your hand.

Employment contracts always include a notice period should an individual decide to resign. Typically, South African workers must give a calendar months’ notice when they decide to part ways with their employer, but what happens in the case of resignation with immediate effect, especially when there are pending disciplinary actions? 

Every employer has a right to privacy and as such employees should tread carefully when recording business-related activities, as they could find themselves in breach of confidentiality owed to their employer. While the law provides some leeway for employers to record the conversations and activities of employees, whilst they are engaged in business related activities, and use such recordings against them, as long as it is 'in the interests of justice to do so', employees have a lot less space to manoeuvre when recording the activities of their employers

A recent case decided by the South African High Court has examined the curious interplay of an employee's rights as they arise from both the written contract of employment and, at the same time, labour legislation. Although the judgment may at first seem confusing, a careful analysis of its outcome sheds light on how these parallel sources of the parties rights and obligations operate in conjunction.

It is trite law that certain prescribed periods of notice become applicable upon termination of any employment relationship between an employer and an employee. These periods are governed by statute and the individual employment contract. However, notwithstanding this, there is uncertainty in our labour law about the position where an employee resigns with immediate effect in the face of a pending disciplinary enquiry.

Section 198B of the Labour Relations 66 of 1995 (LRA) provides that fixed term employees earning less than R205,433.30 per annum (Threshold) may only be employed for longer than three months if the work they perform is of a limited or definite duration or if the employer can demonstrate any other justifiable reason for fixing the term of the contract.

Working time including overtime is regulated by the Basic Conditions of Employment Act, but many workers are not familiar with the technicalities of these laws and many employers do not adhere to the rules.

Employees often resign with immediate effect when facing disciplinary action. Employers may be unsure whether they can continue with an intended disciplinary action? Unfortunately, the Labour Courts' decisions on this issue have not always been clear or consistent.

The untrained layperson cannot be expected to travel through the jungle of labour case law without a guide who has a solid labour law track record. The question is, how do you distinguish a true labour law expert from one who will lead you astray?