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In the case of Amalungelo Workers ‘Union and Others vs Philip Morris South Africa (Pty) Limited and Another [2019] ZACC 45 (CC), the Union and 75 of its members claimed their employer Philip Morris South Africa (Pty) Ltd and Leonard Dingler (Pty) Ltd, have in contravention of section 34 of the Basic Conditions of Employment Act (“BCEA”), deducted tax in respect of company cars from their salaries. Based on this allegation, the Union instituted proceedings in the Labour Court for an order com...
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27

Principle of majoritarianism

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A fundamental pitfall of majoritarianism is the possibility that the rights of the minority could be infringed pursuant to the will of the majority. In the matter of Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others, this possibility was illustrated, when a group of employees arrived at work only to be told that they had been retrenched, without being engaged. AMCU referred the matter to LAC challenging the constitutionality of s189(1)(a)...
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14

Business Rescue Proceedings

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Can a business rescue practitioner commence with retrenchment proceedings prior to the adoption of a business rescue plan? It has always been within the employer’s discretion as to whether a retrenchment is being contemplated. This position has now changed. On 7 May 2020, the LC in Johannesburg handed down a judgement, wherein the National Union of Metalworkers of South Africa (NUMSA) sought an order declaring SAA’s notice in terms of section 189(3) of the LRA unlawful and invalid on the bas...
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24

Signing of referral forms

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Employees wanting to pursue cases for unfair dismissal in either the CCMA or various Bargaining Councils typically kick-start the process by completing and signing the requisite dispute referral forms. While this process has been simplified for the purposes of a quick and easy dispute referral, it is not uncommon for employees to enlist the help of attorneys. Often attorneys will sign dispute referral forms on behalf of expectant employees. However, doing so may be tantamount to signing the pro...
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Payment of a performance bonus constitutes a “benefit” as contemplated by s186(2)(a) of the Labour Relations Act, 1995 (LRA). The majority of bonus schemes are made subject to an employer’s discretion in assessing the extent to which an employee (or a team, department or the employer as a whole) may have achieved previously agreed upon deliverables giving rise to payment of a bonus or a portion thereof. However, there may be circumstances where employees may feel aggrieved by the manner in w...
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04

COVID-19: SOUTH AFRICAN TERS BENEFIT

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Section 8 of The National Disaster Regulation 10 empowers the Minister of Employment and Labour (the Minister) as required, may issue and vary directions, within his mandate, to address, prevent and combat the spread of COVID-19. In line with the above regulation, the Minister has announced measures that the Department will put in place under the current special circumstance relating to the Coronavirus (COVID-19) and its impact on UIF contributors. The Unemployment Insurance Fund will assist a...
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Online SignaturesCOVID-19 How can a party execute signature to documents in terms of South African Law? 1. Under South African Law, there are three methods available to parties when signing documents namely: - The traditional method where parties physically sign in pen on an actual document; Electronic signatures, and Advanced Electronic Signatures (AES) Electronic Communications and Transactions Act, 2002 2. In terms of Section 13 of the Electronics Communications and Transactions Act...
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Code of Good Practice for the handling of Sexual Harassment Cases Until 19 December 2018, employers had to apply two Code of Good Practice for the Handling of Sexual Harassment Cases in the workplace. The first code was issued in 1998 (Government Notice R1367 of 17 July 1998). This code was amended on 4 August 2005, by the Amendments to the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (General Notice 1357). The amended code introduced a new definition for w...
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The Department of Employment and Labour has communicated that the general National Minimum Wage will increase from R20 per hour to R20.76 as of 1 March 2020. This represents a 3.8% increase right off the back of the CPI figures.
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The Basic Conditions of Employment Act(BCEA) has changed to make provision for three new categories of leave. The first category is parental leave that relates to the birth of a child. An employee who is a parent of a child will be entitled to 10 consecutive days’ parental leave. This will effectively replace the three days’ paternity leave currently provided for in the BCEA, but the current maternity leave provisions in the BCEA remain unchanged. Parental leave may commence on the day the chi...
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