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NEWSLETTERS
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16 May 2019
CLEARING THE MISCONCEPTION THAT AN EMPLOYEE CAN RESIGN “WITH IMMEDIATE EFFECT” TO AVOID DISCIPLINARY ACTION.
It has become more evident, in recent times, that when an employee is faced with disciplinary action the employee elects to resign with immediate effect, pending disciplinary action by employers.
The question that most employers then face is: What are my rights? Can I, as the employer, still institute or proceed with disciplinary action?
Our view has been, and remains, that resignation “with immediate effect” constitutes a breach of the employment contract and/or the Basic Conditions of Employment Act (BCEA), which clearly stipulates the required minimum notice period.
POSITION-BEFORE JUNE 2018:
In the matter of Mtati v KPMG Services (Pty) Ltd (2017) 38 ILJ 1362 (LC), the company was in the process of investigating allegations of serious misconduct against Ms. Mtati, whereafter she decided to tender her resignation by giving the required notice. When the company informed Ms. Mtati of their intention to proceed with disciplinary action, she once again tendered a resignation, but this time “with immediate effect”.
Ms. Mtati as a result of her resignation “with immediate effect” raised a preliminary point at the commencement of her disciplinary hearing, wherein she stated that the company and the chairperson lacked jurisdiction to proceed with disciplinary action against her. The grounds she relied upon was that her resignation was “with immediate effect” and, as a result thereof, she was no longer an employee of the company.
The chairperson found that Ms. Mtati’s claim had no merits and made a ruling that the hearing should proceed, whereafter Ms. Mtati left and the disciplinary hearing proceeded in her absence. After considering the evidence presented by the company, the chairperson found Ms. Mtati guilty and she was subsequently dismissed.
Ms. Mtati subsequently referred the matter to the labour court for adjudication and the court found that the dismissal was null and void and went on to state that an employee is not required to seek the consent of his or her employer to resign “with immediate effect” during the notice period.
However, the judgment was taken on appeal by KPMG, whereafter the Labour Appeal Court (LAC) dismissed the appeal on the basis that the point raised on appeal was moot.
POSITION AFTER JUNE 2018:
In the Labour Court matter of Coetzee v The Zeitz MOCCA Foundation Trust and Others [2018], Mr. Coetzee was suspended by his employer based on allegations of serious misconduct, pending the finalisation of a disciplinary hearing.
Following his suspension, Mr. Coetzee verbally tendered his resignation and was informed that the company would still proceed with disciplinary action against him. Mr. Coetzee opted to approach the labour court on an urgent basis, seeking an interdict against the company completing the disciplinary process on the basis that the company had no jurisdiction to discipline him in light of his resignation “with immediate effect”
Judge Rabkin-Naicker, however, came to the following conclusions:
- An employee is entitled to resign with immediate effect only in the case of a preceding material breach of contract by the employer or where the employer accepts the resignation with immediate effect.
- Statutorily and contractually, the employee is bound to give at least four weeks’ notice of his resignation.
- During an employee’s notice period, there is no legal impediment to the prosecution of the disciplinary proceeding and if warranted, the subsequent dismissal of an employee for misconduct.
Judge Rabkin-Naicker’s judgment clarified the legal position that an employee’s contract of employment comes to an end only once his or her resignation has taken effect at the end of the notice period.
The effect of the judgment is that an employer is entitled to proceed with instituting and/or proceeding with disciplinary action, even if the employee tendered his resignation “with immediate effect” which was not accepted by his employer.
The position, however, is different when the employee resigns with “immediate effect” and the employer accepts the resignation. This would result in an employment relationship being terminated immediately and the employer will lose the right to institute and/or to proceed with any disciplinary action.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Contact Strata-g Labour Solutions for specific and detailed advice.
JAY-DEE BRITZ
SENIOR LEGAL ADVISOR
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23 August 2018
ADAM CATZAVELOS AND THE K-WORD
A video of Adam Catzavelos using the K-word to refer to black people whilst on holiday has caused outrage on social media and has resulted in a number of political parties, organisations and ordinary South Africans demanding that authorities take harsh action against him and rightly so.
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20180823_NEWSLETTER_Adam Catzavelos & the K-word
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15 August 2018
WHEN AN EMPLOYEE RESIGNS IN FACE OF A DISCIPLINARY ACTION
Lately, there has been an increasing pattern of employees electing to resign from employment when faced with a disciplinary action for an act of misconduct. The resignation usually occurs after a notice to attend a disciplinary hearing has been issued to an employee, and before the disciplinary hearing actually takes place. The question which then arises is whether such resignations can be accepted by an employer and the options available to an employer when the employee in fact resigns when faced with disciplinary action.
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20180815_NEWSLETTER_Resignation in Face of Disciplinary Action
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30 July 2018
DOES A LABOUR BROKER EMPLOYEE PLACED WITH A CLIENT LONGER THAN 3 MONTHS BECOME THE CLIENT’S EMPLOYEE?
In 2015, Assign Services (Pty) Ltd, being a registered Temporary Employment Service (TES) or otherwise known as a Labour Broker, placed 22 (twenty-two) to 40 (forty) employees with Kroft Shelving and Racking (Pty) Limited (herein after referred to as the Client), depending on the projects awarded to the Client.
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09 July 2018
WHEN DOES AN EMPLOYMENT RELATIONSHIP EXIST IN TERMS OF THE LABOUR RELATIONS ACT (LRA)
Has an Employer ever questioned whether someone within their organisation is an Employee, and what is required for a person to be considered an Employee which are entitled to certain rights as provided in the LRA?
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9072018_NEWSLETTER_WHEN DOES AN EMPLOYMENT RELATIONSHIP EXIST IN TERMS .._
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05 July 2018
DOUBLE JEAOPARDY AND WHAT AN EMPLOYER SHOULD BE AWARE
When employers intend on disciplining their staff, they should be cautious of the double jeopardy rule found within our law. In order for employers to be cautious of this rule, they should be aware of what is meant by double jeopardy. In the matter of Mahlakoane v South African Revenue Service [2018] 4 BLLR 337 (LAC) it stated that double jeopardy means that an employee cannot be charged again with the same misconduct that they were found either guilty or not guilty of.
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20180705_NEWSLETTER_DOUBLE JEOPARDY AND WHAT AN EMPLOYER SHOULD BE AWARE OF
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18 June 2018
MILLENIALS ARE UNIQUE CORPORATE PLAYERS
With each industrial age has come a different type of employee. From Baby Boomers, to Gen-X and the elusive Millennial. Millennials are a corporate anomaly, a completely new type of employee to enter the work landscape, writes Strata-G Labour Solutions legal advisor, Aphelele Tapile.
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11 June 2018
CAN EMPLOYERS CONDUCT BACKGROUND CHECKS ON SEXUAL OFFENDERS PRIOR TO EMPLOYMENT?
The National Registrar for Sex Offenders (NSRO) is not readily accessible to employers and the general public at large, however, where persons are employed to work with disabled persons or children, the law makes an exception.
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NEWSLETTER_SEX_OFFENDERS_REGISTRY_AND_EMPLOYMENT
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31 May 2018
THE LEGALITY OF RUNNING PARALLEL HEARINGS CONCERNING THE SAME EMPLOYEE
In South Africa there has been no consensus or decision made concerning the case whereby an employee is subjected to one hearing after another hearing.
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20180531_THE LEGALITY OF RUNNING PARALLEL HEARINGS
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25 May 2018
IMPORTANCE OF THE EMPLOYEES DISCIPLINARY RECORD
The courts have endorsed the concept of corrective and progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees behaviour through a system of graduated disciplinary measures such as counselling and warnings.
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20180518_NEWSLETTER_IMPORTANCE OF THE DISCIPLINARY RECORD
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18 May 2018
RACIAL REMARKS IN THE WORKPLACE. DOES “SWART MAN” CONSTITUTE A RACIAL SLUR?
In a country, no stranger to racial tensions, our courts have dealt with a variety of cases and made immense strides on the matter. Notwithstanding this, the tensions occurring in the social landscape have seeped into the workplace and have manifested in both conspicuous and subtle ways.
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20180521_NEWSLETTER_RACIAL REMARKS IN THE WORKPLACE_DOES SWART MAN CONSTITUTE A RACIAL SLUR
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11 May 2018
THE DIFFERENCE BETWEEN INSUBORDINATION AND INSOLENCE, AND THE SERIOUSNESS THEREOF
In the workplace, Employers are faced with an array of issues concerning the misconduct of their Employees. The difficulty which Employers face is being able to correctly identify the type of misconduct which an Employee has committed, and this is found to be especially true when identifying between Insubordination and Insolence.
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20180511_NEWSLETTER_THE DIFFERENCE BETWEEN INSOLENCE AND INSUBORDINATION AND THE SERIOUSNESS THEREOF
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10 May 2018
SEXUAL HARRASMENT IN THE WORKPLACE: WHEN SHOULD THE MISCONDUCT BE REPORTED?
Sexual harassment is one of the most atrocious forms of misconduct that exist in the work place. This form of misconduct is seldom reported by the victims to their superiors due to a number of factors, such as fear. The question that has to be answered here is whether there is a time frame within which victims of sexual harassment are required to adhere to when reporting this form of misconduct, and the duty of the Employer in such cases.
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20180528_NEWSLETTER_Sexual harasment in the workplace
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24 April 2018
NOTICE OF NATIONWIDE PROTEST ACTION BY SOUTH AFRICAN FEDERATION OF TRADE UNIONS (SAFTU) ON 25 APRIL 2018
As has been reported in the media, the South African Federation of Trade Unions (SAFTU) intends embarking on a nationwide protest action on 25 April 2018 concerning various issues.
These issues include current changes which have been made to the labour laws of South Africa concerning strikes, the minimum wage as well as membership to the National Economic Development and Labour Council (NEDLAC) which is the organization that has made these aforementioned changes.
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20180423_Protest Action Saftu 25 April 2018
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23 April 2018
ARE EMPLOYERS OBLIGED TO PAY BONUSES TO EMPLOYEES?
Many Employers are faced with this question at some point in time and it must be noted that there is absolutely no legislative imperative placed on Employers to pay bonuses to Employees and it therefore becomes a contractual issue. it must however be noted that some Bargaining Council Main Agreements may prescribe certain instances within which same must be paid, for instance, Leave Enhancement Bonuses.
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20180423_NEWSLETTER_PAYMENT OF BONUSES
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18 April 2018
MISCONDUCT AND SOCIAL MEDIA: WHAT SHOULD EMPLOYERS BE AWARE OF?
With the progression of technology and social media in the world today, and the consistent use of social media in our daily lives certain risks arise concerning what content a person choses to share with the world on these social platforms.
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20180418_NEWSLETTER_Social media and misconduct
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11 April 2018
DOES THE SINGING OF STRUGGLE SONGS JUSTIFY TAKING DISCIPLINARY ACTION & SUBSEQUENTLY DISMISSING THE EMPLOYEES WHO SING THEM?
Struggle songs formed a major and intrinsic part of the fight against Apartheid, but what happens when same are sang by employees in the current labour environment and, more importantly, what if they take on a racial tone?
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20180408_NEWSLETTER_ARE STRUGGLE SONGS A BASIS FOR DISMISSAL
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05 April 2018
DOES THE RIGHT TO REFER AN UNFAIR DISMISSAL PRESCRIBE?
In terms of 191 of the Labour Relations Act (LRA), a dispute regarding an unfair dismissal must be referred to a bargaining council or the CCMA:
- For conciliation, within 30 days of the date of dismissal
- For arbitration or adjudication at Labour Court, within 90 days after the matter remained unresolved.
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20180405_NEWSLETTER_Does the right to refer an unfair dismissal prescribe
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28 March 2018
THE USE AND POTENTIAL CONSEQUENCES OF EMOJIS IN THE WORKPLACE
In this current day and age, technology has advanced whereby the use of applications and social media concerning communication has become the norm. The use of emoji’s has become more prevalent in how we communicate with one another, especially in cases where a speedy response is needed.
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20280318_NEWSLETTER_THE USE AND POTENTIAL CONSEQUENCES OF EMOJIS IN THE._
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21 March 2018
MUTUAL SEPARATION AGREEMENTS ARE LEGALLY ENFORCEABLE
A Mutual Separation Agreement differs from Resignation and Dismissal which are unilateral terminations of employment. Mutual Separation Agreements arise when both employer and employee agree to end the employment relationship.
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21032018_NEWSLETTER_MUTUAL SEPARATION AGREEMENT_
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09 March 2018
UNDER WHAT CIRCUMSTANCES A POLYGRAPH TEST MAY BE USED FOR DISCIPLINING EMPLOYEES
What do you as an employer do when you have a suspicion that an employee has engaged in dishonest conduct, but simply have no physical evidence or eye witnesses? Can you oblige the offending employee to submit to a polygraph test, and can you rely on same to prove guilt at the subsequent disciplinary proceedings?
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12032018_NEWSLETTER_USE_OF_POLYGRAPHS
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05 March 2018
WHEN CAN AN EMPLOYEE INTERDICT OR PROHIBIT A DISCIPLINARY HEARING FROM PROCEEDING
In certain matters where an employee finds that a disciplinary hearing is not being conducted properly, or finds that the correct procedure was not followed, such employee can make an application to the Labour Court to interdict the disciplinary hearing. What this essentially means is that the disciplinary hearing will stop until a decision is made by the Labour Court concerning the interdict which is brought by an employee.
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WHEN CAN AN EMPLOYEE INTERDICT OR PROHIBIT A DISCIPLINARY HEARING FROM PROCEEDING
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09 February 2018
WHAT EMPLOYERS SHOULD BE AWARE OF WHEN DISMISSING EMPLOYEES BASED ON OPERATIONAL REQUIREMENTS
When Employers are contemplating the dismissal of employees based on the operational requirements of a business it is important to follow a fair process as provided for in the Labour Relations Act (LRA). The issue that arises when dismissing an Employee based on operational requirements is that the Employer must consider the alternatives before proposing dismissal as provided for in section 189(3)(b).
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DISMISSING EMPLOYEES BASED ON OPERATIONAL REQUIREMENTS
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06 February 2018
UBER DRIVER QUESTION REMAINS UNANSWERED
There has been an ongoing and heated debate in various countries (including South Africa) about whether or not Uber Drivers can be defined as employees. In July 2017, the Commission for Conciliation, Mediation and Arbitration (CCMA) faced the question regarding the employment status of Uber drivers and had to rule whether the drivers were independent contractors or employees.
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UBER DRIVER QUESTION REMAINS UNANSWERED
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01 February 2018
IMPLEMENTATION OF THE NEW NATIONAL MINIMUM WAGE
Until recently, there was no mandatory national minimum wage which employers were required to pay to even entry level staff, however, recent developments have changed this position.
It is noted that with the new regulations set to take effect from May 2018, the new national minimum wage will require employers across all sectors, including Agriculture and Domestic Workers, to pay R 20-00 (twenty rand) per hour. This effectively means the following:
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IMPLEMENTATION OF THE NEW NATIONAL MINIMUM WAGE
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23 January 2018
FAMILY RESPONSIBILITY LEAVE
Family responsibility leave often presents a contention regarding who may be entitled to the leave and under what circumstances this entitlement comes about.
Section 27 of The Basic Conditions of Employment Act stipulates that family responsibility leave is applicable to employees who have been employed for a minimum of 4 months and must work more than 24 hours a month.
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15 January 2018
WHY SKILLS DEVELOPMENT MATTERS
In 1998 the Skills Development Act was introduced out in an effort to assist with the development of skills within the South African workforce by encouraging workplaces to become active learning environments and make provisions for ongoing education and skills development. The major factor preventing South Africa from fighting against poverty is the inaccessibility of higher education and training. Approximately 1.5% of South Africa’s Gross Domestic Product is contributed towards education and training post school. Amongst others, most of these funds are distributed to vocational colleges and the National Skills Development Fund.
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WHY SKILLS DEVELOPMENT MATTERS
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09 January 2018
PATERNITY LEAVE IN SOUTH AFRICA
Generally speaking, the position in South Africa is that new fathers are not entitled to paternity leave and would unfortunately have to rely on the meagre few days granted to them for Family Responsibility Leave, which is by new means sufficient when considering what a life changing moment they have gone through, however, recently Parliament has passed the Labour Laws Amendment Bill which seeks to grant the right of parental leave to South African fathers.
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PATERNITY LEAVE IN SOUTH AFRICA 9 Jan 2018
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14 December 2017
EMPLOYMENT EQUITY – COMPLIANCE AND PENALTIES
Employment Equity (EE) is by far one of the most challenging and underestimated elements of transformation that South African employers are faced with. It should be addressed as a high priority, however many organisations underestimate the process of introducing and implementing the EE guidelines and regulations into their internal policies, procedures and practices. Recently, a major airliner operating in South Africa was reportedly fined R900 000 for failing to comply with the Employment Equity Act (EEA). This highlights the seriousness with which the Department of Labour (DOL) takes non-compliance with the provisions of the Act and shows that they will not hesitate to bring the maximum penalty applicable against defaulters.
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EMPLOYMENT EQUITY – COMPLIANCE AND PENALTIES 14 dec
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2 November 2017
THE IMPORTANCE OF FOLLOWING A FAIR PROCESS IN RETRENCHMENTS
In current news relating to GM motors leaving South Africa and the recent debacle concerning KPMG, this has led to both Company’s carrying out retrenchments. It is important for all Employers to understand what is expected of them when considering the retrenchment of employees and the process which should be followed in order to comply with the Labour laws in South Africa.
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THE IMPORTANCE OF FOLLOWING A FAIR PROCESS IN RETRENCHMENTS
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20 October 2017
LEGAL REPRESENTATION AT A DISCIPLINARY HEARING
As the point of departure, disciplinary hearings are regarded as internal processes used by the employer in order to progressively discipline an employee who might have contravened any valid and reasonable rule, which the employee was aware of and/or was reasonably expected to be aware of.
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LEGAL REPRESENTATION AT A DISCIPLINARY HEARING
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12 October 2017
RIGHTS CONCERNING THE RESTRAINT OF TRADE AGREEMENT IN THE WORKPLACE
Restraint of trade is a tool which the employer uses to protect his economic interests and trade secrets from competitors. A restraint of trade agreement is defined as an agreement between the employer and employee whereby provision is made in the employment contract which restricts an employee from being employed by a competitor of the employer or restricts the employee from establishing a business in competition with the employer following termination of employment.
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RIGHTS CONCERNING THE RESTRAINT OF TRADE AGREEMENT IN THE WORKPLACE
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05 October 2017
MAY AN EMPLOYER TAKE DISCIPLINARY ACTION AGAINST EMPLOYEES WHO MAKE DISCLOSURES WHICH ARE POSSIBLY DETRIMENTAL TO AN EMPLOYER?
As any Employer knows, an Employee is placed under a duty to always act in the best interests of his or her Employer for fear of facing disciplinary action, but is this duty one which must be adhered to at all costs or are there limitations? And what if the Employer engages in unlawful or unethical conduct? Can the Employee be disciplined for providing tip-offs relating to underhanded conduct which ultimately prejudice the Employer?
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13 SEPTEMBER 2017
ADRIAN LACKAY V SARS AND THE NATURE OF CONSTRUCTIVE DISMISSAL
The matter of Adrian Lackay and the South African Revenue Service (SARS), is currently being heard in the Commission for Conciliation, Mediation and Arbitration (CCMA), and relates to the issue of Constructive dismissal in the work place. It should firstly be explained what Constructive dismissal entails in order to understand the merits of the matter.
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ADRIAN LACKAY V SARS AND THE NATURE OF CONSTRUCTIVE DISMISSAL
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13 JULY 2017
WHO IS THE EMPLOYER, THE LABOUR BROKER OR THE CLIENT?
The recent judgment by the Labour Appeal Court (LAC) in respect of Assign Services v NUMSA and others has sparked yet another interesting debate around the interpretation of Section 198A(3)(b)(i) of the Labour Relations Act (LRA), in as far as whether the status of the employment relationship of employees placed with the client are “deemed” to be employees of the very client or of the Labour Broker (TES).
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20170713_LAC_RULING_RE-TEMPORARY_EMPLOYMENT_SERVICES
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21 JULY 2017
Use of Social Media OUTSIDE the workplace.
Not only has the advent of social media become a great part of our lives, it has also impacted greatly on the workplace environment. However, can the use of social media after hours be linked to an employer or organization and accordingly warrant disciplinary action? The use of social media after hours involving and/or referencing the employer can be regulated contractually under “off duty conduct” or by means of a social media policy which would make reference to same. The extent to which the use of the social media after hours affected the Company would need to be considered and regulated accordingly.
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20170721 Use of Social Media OUTSIDE the workplace
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16 May 2019
Transformation Lies Beyond Ownership/True Transformation is the Imparting of Knowledge
Broad-Based Black Economic Empowerment (B-BBEE) will never amount to true transformation as long as the government does not push for the execution of a holistic transformation of South Africa’s socio-economy, explains transformation specialist, Roxanne Da Mata Gonçalves of Strata-g Labour Solutions.
“The B-BBEE Act is about transforming the lives of designated groups by increasing the number of black people that own, manage, control and gain employment in South Africa’s economy. However, B-BBEE has been allowed to become a tick box exercise, adding to that, mechanisms used to enforce and monitor transformation in organisations are weak and inadequate.”
The Codes of Good Practice aligned to the Act set out five areas of measurement: ownership, management control, skills development, enterprise, and supplier development, and socioeconomic development
“The often-narrow focus of B-BBEE codes on creating ownership for designated groups,” Da Mata Gonçalves says, “has formed discrepancies in bringing about true transformation.”
A report by the Broad-Based Black Economic Empowerment Commission (BBBEEC) stated that on average companies are not meeting 50% of the targets for management control, skills development, and enterprise and supplier development.
However, organisations can be transformed into other aspects apart from ownership.
“Companies can focus on enterprise and supplier development. Instead of just handing out young Small to Medium Micro-sized Enterprises (SMMEs) funding, these organisations can impart their knowledge of the business world, ensuring more black businesses grow their skills and knowledge making them profitable and sustainable,” Da Mata Gonçalves explains.
Figures assembled by the BBBEEC also show that between 2015 and 2017 the number of black business owners decreased from 33.5% to 27.8%.
“Transformation falls within both the government and private sector ambit. Private companies have an onus to be transparent with verification agencies when applying for their B-BBEE scores. The South African National Accreditation System (SANAS) must ensure all verification agencies apply objective consistent methods that reflect the true BEE score of graded companies. The South African government has a duty to sternly apply its own B-BBBEE codes internally and to stop awarding tender contracts to entities that are not transformed.”
According to the BBBEEC’s report, only eight state-owned entities out of 131 submitted a BEE compliance report for assessment last year.
“For transformation to truly be effective it must move beyond simply being about hiring the “right” people and being about whether the people hired are qualified for the job,” Da Mata Gonçalves says.
She says to achieve this, the government must invest heavily in education and in ensuring that pupils and students are equipped with more than just a basic knowledge of the working world.
“We need to reform our education system. We need to equip learners at a basic education level with skills that will make them employable in a world operating during the fourth industrial revolution. We are not producing graduates that are capable of being organisational leaders, where often the onus of imparting these skills falls on employers. As a result, companies are not promoting people from designated groups into management roles in high numbers,” Da Mata Gonçalves says.
According to the BBBEEC, from 2007 to 2008 there were 18.8% black people in top management and in 2018 there were 14.3%. In senior management, there was a slight increase from 18.1% to 22.1% of black managers.
Roxanne Da Mata Goncalves
TRANSFORMATION DIRECTOR
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01 September 2018
Y.E.S INITITIATIVE IS FINALLY GAZETTED. HOW DOES IT WORK?
The Youth Employment Services (YES) amendments to the B-BBEE Codes were gazetted on Tuesday, 28 August 2018.
YES is a business-led partnership with government, labour, and civil society and aims to provide 1 million South Africans between 18 and 35 years with paid work experience by the year 2020. The amendments will have significant benefits to organisations that integrate youth employment into their workforce and B-BBBEE strategies.
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20180901_YES INITIATIVE GAZETTED
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30 August 2018
BBBEE: IT PAYS TO COMPLY WITH LEGISLATION
Companies that opt to pay a fine rather than comply with the Employment Equity Act (EEA) and Black Economic Empowerment (BEE) legislation do not recognise the value of transformation and the benefits it can bring, says Roxanne Da Mata Gonçalves, Director of Strata-G Labour Solutions.
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PRESS RELEASE – SEPTEMBER 2018 – Benefits of BEE.docx CR
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23 August 2018
EMPOWERING YOUTH THROUGH EDUCATION & CREATING EMPLOYMENT OPPORTUNITIES
In 1998 the Skills Development Act was introduced in an effort to assist with the development of skills within the South African workforce by encouraging workplaces to become active learning environments and make provisions for ongoing education and skills development.
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20180823_Empowering Youth for Employment
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15 August 2018
TRANSPORT CHARTER EME AND BLACK OWNED QSE CONFIRMATION
The Amended B-BBEE codes of good practice (Government Gazette No.:36928), published in the gazette on 13 October 2013, states under code series 000, clause 4.5 and 5.3, that an EME and a black owned QSE only requires to obtain an affidavit confirming turnover and black ownership.
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20180815_NEWSLETTER_Transport Charter EME and black owned QSE confirmation
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09 July 2018
EMPLOYMENT EQUITY – BLITZ INSPECTIONS WITHIN THE WHOLESALE & RETAIL SECTOR
Employment Equity (EE) is by far one of the most challenging and underestimated elements of transformation that South African employers are faced with. It should be assessed and addressed as a high priority, however many organisations underestimate the process of compliance. In a media alert, on the 18 June 2018, the Department of Labour announced that they would be embarking on a blitz inspection targeting organisations within the Wholesale and Retail sector.
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9072018DOL WHOLESALE_RETAIL_BLITZ _NOTIFICATION
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11 June 2018
THE ROAD TO EE COMPLIANCE IS PAVED WITH DUBIOUS INTENTIONS
Is the failure by 72 JSE-listed companies to comply with the provisions laid out in the Employment Equity Act a blatant lack of respect, as Deputy Minister of Labour Nkosi Phathekile Holomisa posits, or is it more complex than that?
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20180610_ROAD TO COMPLIANCE IS PAVED WITH DUBIOUS INTENTIONS
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31 May 2018
STRATEGIES ON HOW TO RETAIN YOUR EMPLOYEES
The longer an employee is employed with your company, the more experience they will have in the industry you operate in and your specific approach to business, which is invaluable as your employees are essentially your company’s brand ambassadors. An added benefit is that even though these “long-term” employees are achieving continuous good results themselves, they can assist other employees to do the same by training and mentoring them which will result in high-quality work being delivered throughout your company with ease.
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20180531_HOW TO KEEP GOOD TALENT_22052018 (003)
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25 May 2018
B-BBEE: THE AMENDED CODES, SECTOR CODES, TRANSFORMATION CHARTERS AND CHANGES TO BE EXPECTED
Most companies operating in South Africa are familiar with the term B-BBEE, the old 2007 DTI Codes of Good Practice and the 2013 General Amended Codes.
Nevertheless, the nature of your business and the industry or sector in which your company operates, are both vital aspects which need to be considered when establishing whether a Sector Code or Transformation Charter would most likely dictate how your company’s B-BBEE status will be determined.
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20180518_B-BBEE General Amended Codes Sector Codes expected change.._
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11 May 2018
PRACTICES THAT CAN IMPROVE EMPLOYEE PRODUCTIVITY
Every employer should have staff who share in the vision and success of the organisation and are leaders within their respective roles. Studies have shown that productive employees are motivated, innovative, creative and loyal. It is such employees that give an organisation a competitive edge in today’s high speed and “hyper-connected” business environment.
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20180511_IMPROVING PRODUCTIVITY IN THE WORKPLACE
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24 April 2018
B-BBEE COMMISSION CONFIRMS MORE COMPANIES ARE FRONTING
Ms Zodwa Ntuli, the Commissioner of the B-BBEE Commission, addressed Parliament on 17 April 2018 and confirmed that more companies are fronting their employees through Trusts and Broad-based Ownership Schemes (BBOS).
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1222018 IMPLEMENTATION OF THE NEW NATIONAL MINIMUM WAGE
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18 April 2018
WHY ARE CORPORATES NOT JUMPING TO GET INVOLVED IN GOVERNMENT’S SKILLS DEVELOPMENT INITIATIVES AND SAVE MONEY?
“Too few companies are taking part in government initiatives aimed at decreasing youth unemployment in South Africa. This is inexplicable, especially given how these programmes can benefit their bottom lines,” says Roxanne Da Mata Gonçalves, Director at Strata-G Labour Solutions.
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20180418_Strata-G_Skills development incentives
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11 April 2018
B-BBEE AND SKILLS DEVELOPMENT
It is common knowledge by now that the 2013 General Amended Codes, effective from 01 May 2015, have brought about significant changes in how companies, irrespective of size, approach and regard B-BBEE.
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2018.04.10 Changes to B-BBEE Skills Development
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05 April 2018
EMPLOYMENT EQUITY – IMPORTANCE OF IMPLEMENTATION
Before South Africa became a democratic country, there were colonial and apartheid laws that excluded black people from participating in the educational and labour systems. To rectify this and to bring an end to the discrimination, the Constitution was put in place, giving all the occupants of the land the right to equality. Because the previous process was one that took place over a number of years, the government knew that the transition and transformation would not take place over night. Therefore a provision within the legislation was put into place, to assist with the accomplishment of equality and this is when the Employment Equity Act came into play.
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03042018_EE_IMPORTANCE OF COMPLIANCE
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28 March 2018
HOW TO OPTIMISE YOUR SCORES ON PREFERENTIAL PROCUREMENT BY FOCUSING ON LOCAL SUPPLIERS
Despite all the changes to B-BBEE in terms of legislation and irrespective of the applicable Codes and or Sector Codes, Preferential Procurement remains one of the simpler elements (scorecard items) to comply with.
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2018.03.28 BEE and your business – Preferential Procurement
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21 March 2018
INTERNSHIPS – A MECHANISM TO MAKE OUR YOUTH MORE EMPLOYABLE
Whilst the government is introducing Broad Based Black Economic Empowerment policies to radically fast track the economic empowerment of previously disadvantaged individuals. With more than 55% of the country’s population still living in poverty, unfortunately these policies are still making the rich, richer and the poor, poorer.
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21032018_SD_MECHANISMS TO EMPOWER THE YOUTH
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12 March 2018
B-BBEE AND YOUR BUSINESS: HOW BEST TO PREPARE FOR YOUR CURRENT AND FUTURE B-BBEE VERIFICATIONS
Regardless of whether your company is a Start-up Enterprise, a Private Company, a Close Corporation, listed or unlisted, operating in South Africa has changed drastically in the past 10 years irrespective of the industry and/or sector you are trading in. Within this ever-changing environment, the regulatory requirements your company is required to adhere to as well as the terms and conditions of your company’s suppliers and/or clients’ which need to be met in order to maintain and/or procure new business, all ultimately result in tedious, labour-intensive administration and having to comply with B-BBEE is just the cherry on top.
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12032018 BEE and your business – How to prepare for your BEE Verificat.._
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26 February 2018
SKILLS DEVELOPMENT AND THE 2013 AMENDED CODES
It is common knowledge by now that the 2013 General Amended Codes, effective from 01 May 2015, have brought about significant changes in how companies, irrespective of size, approach and regard B-BBEE, but how does it impact the element, Skills Development?
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02032018Skills Development and the 2013 Amended Codes
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09 February 2018
CONFIRM THAT A TRAINING PROVIDER OR PROGRAMME IS ACCREDITED
Many employers and learners have been taken for a ride by Training Providers who allege that they are accredited to facilitate certain learning interventions, namely accredited skills programmes and learnerships.
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CONFIRM THAT A PROVIDER OR PROGRAMME IS ACCREDITED
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06 February 2018
ENTERPRISE- AND SUPPLIER DEVELOPMENT: CREATIVE VALUE-ADDING INITIATIVES
It is common knowledge by now that the 2013 General Amended Codes, effective from 01 May 2015, have brought about significant changes in how companies, irrespective of size, approach and regard B-BBEE.
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ENTERPRISE & SUPPLIER DEVELOPMENT
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01 February 2018
THE FUNCTION AND FUTURE LANDSCAPE OF THE SETAS IN SOUTH AFRICA
The Sector Education and Training Authorities (SETAs) were introduced as a replacement of 33 Industry Training Boards. The Industry Training Boards had limited powers and responsibilities. They only covered certain sectors and mainly focused on Apprenticeships. As stated in Chapter 3, Section 10 of the Skills Development Act of 1998, the SETAs were formulated to develop a sector skills plan within the framework of the National Skills Development Strategy. The SETAs are responsible for approving the Workplace Skills Plan (WSP), allocating and awarding grants for national training and development, undertaking quality assurance and monitoring education and training in a specific sector. The implementation of the skills is done through but not limited to the establishment of learnerships, internships and unit based skills programmes.
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THE FUNCTION AND FUTURE LANDSCAPE OF THE SETAS IN SOUTH AFRICA
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23 January 2018
SECTOR CODES and/or TRANSFORMATION CHARTERS
Most companies operating in South Africa are familiar with the term B-BBEE and more so with the old 2007 DTI Codes of Good Practice as well as the 2013 Amended Codes.
However, based on the nature of your business and/or the industry or sector in which your company operates, a Sector Code or Transformation Charter would most likely dictate how your company’s B-BBEE status needs to be determined.
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SECTOR CODES and:or TRANSFORMATION CHARTERS
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15 January 2018
THE IMPORTANCE OF AN IMPARTIAL CHAIRPERSON
Employers, when tasked with the discipline of their employees who have committed offences within the workplace which have either been repeatedly committed or are of a serious nature, will have to resort to the holding of a disciplinary inquiry.
When a disciplinary inquiry is held, it is important that employers make use of a chairperson whom is impartial to the process. It is often not fully understood what is meant by impartiality and what this may constitute for an employer. The word Impartial is defined as treating all rivals or disputants equally which effectively means that all parties to a dispute are to be treated the same.
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THE IMPORTANCE OF AN IMPARTIAL CHAIRPERSON
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09 January 2018
B-BBEE COMPLIANCE REPORTS
The Broad-Based Black Economic Empowerment Act 53 of 2003 as amended by Act 46 of 2013 (hereinafter referred to as the Act) requires all spheres of government, public entities, organs of state, public companies listed on the JSE and all Sectoral Education and Training Authorities (SETA’s), as contemplated in the 1998 Skills Development Act, to submit B-BBEE Compliance Reports to the B-BBEE Commission on an annual basis..
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B-BBEE COMPLIANCE REPORTS 9 Jan 2018
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14 December 2017
THE EMPLOYMENT RIGHTS OF IMMIGRANTS/ FOREIGN NATIONALS IN SOUTH AFRICA
Employers who hire foreign nationals should take note of the recent judgement of Sithole v Metal and Engineering Industries Bargaining Council & others (JR318/15) which was delivered on 24 November 2017, where an employee had been dismissed as he did not have a valid work permit. The above mentioned case provides what the position is concerning a foreigners’ employment rights in South Africa and if such foreigner has any employment rights when they do not have a valid work permit.
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THE EMPLOYMENT RIGHTS OF IMMIGRANTS: FOREIGN NATIONALS IN SOUTH AFRICA
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12 December 2017
THE DTI GAZETTES THE LONG AWAITED AMENDED FINANCIAL SERVICES SECTOR CODE
On Friday, 01 December 2017, Minister Rob Davies gazetted the Amended Financial Services Sector Code (also referred to as the Amended FSC), effective from date of issue.
As per the DTI’s Media Statement issued on Monday 04 December 2017, Minister Davies has been quoted saying that transformation for the Financial Services Sector is vital for our country as this sector manages over R8 trillion assets, contributing 21.6 per cent to the gross domestic product of the economy, annually.
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THE DTI GAZETTES THE LONG AWAITED AMENDED FINANCIAL SERVICES SECTOR CODE 12 dec
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30 November 2017
THE IMPORTANCE OF A ZERO TOLERANCE POLICY ON INTOXICATING SUBSTANCES
Employers should be aware of the importance of their wording when implementing policies concerning the use and abuse of intoxicating substances within the work place. The reason why the wording should be carefully considered is to allow the employer to discipline their employees more effectively, should such a policy not be worded correctly it could potentially result in a matter being referred to the CCMA as an unfair dismissal.
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THE IMPORTANCE OF A ZERO TOLERANCE POLICY ON INTOXICATING SUBSTANCES
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23 October 2017
THE IMPORTANCE OF EMPLOYMENT EQUITY AND ITS IMPLEMENTATION
Before South Africa became a democratic country, there were colonial and apartheid laws that excluded black people from participating in the educational and labour systems. To rectify this and to bring an end to the discrimination, the Constitution was put in place, giving all the occupants of the land the right to equality.
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THE IMPORTANCE OF EMPLOYMENT EQUITY AND ITS IMPLEMENTATION
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16 October 2017
SKILLS DEVELOPMENT AND THE UNCERTAINTY REGARDING THE RECOGNITION OF BLACK UNEMPLOYED PEOPLE PARTICIPATING IN TRAINING SPECIFIED IN THE SKILLS DEVELOPMENT MATRIX
Many employers have raised questions and expressed uncertainty regarding the recognition of black unemployed people participating in training specified in the skills development matrix in terms of the Generic scorecard under the 2013 Amended Codes and this uncertainty will most likely continue up until such time when the Department of Trade and Industries (DTI) publishes the long awaited Verification Manual.
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SKILLS DEVELOPMENT AND THE UNCERTAINTY REGARDING THE RECOGNITION OF BLACK UNEMPLOYED
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28 SEPTEMBER 2017
Strata-g Labour Solutions advises employers on yesterday’s COSATU mass protest action and what employers need to know.
27 September 2017 marked a day deemed as the largest post-apartheid protest in South Africa. In a bid to “shut down” the country, COSATU and SACP embarked on protest action highlighting a call for President Jacob Zuma’s resignation and an end to corruption and state capture.
Although the protest action itself was compliant with the terms of Section 77 of the Labour Relations Act 66 of 1995 (“LRA”), as amended, and was therefore protected i.e. legal, the burning question is how should Employers react to protest action of such magnitude and do businesses have any recourse in respect of employees who took part from a labour law perspective?
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COSATU MASS PROTEST ACTION AND WHAT EMPLOYERS NEED TO KNOW
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20 SEPTEMBER 2017
VICARIOUS LIABILITY: EMPLOYERS LIABLE FOR EMPLOYEES’ ACTIONS
Vicarious liability is a legal term used to describe a situation where the law holds one person liable for the wrongful act or omission of another person, even though it wasn’t that person’s fault.
For example: while on duty, the employee driving the vehicle belonging to the employer collides with a vehicle belonging to a third party and the driver and or passenger in the third party’s vehicle is seriously injured. The accident has been proven to be the fault of the employee. You, as the employer, are liable. This is the principle of “vicarious liability”
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VICARIOUS LIABILITY- EMPLOYERS LIABLE FOR EMPLOYEES’ ACTIONS
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