Occasionally both the CCMA and the Labour Court are required to address the admissibility of evidence garnered by an employer against an employee during an undercover operation. This typically takes the form of taped telephone conversations, audio evidence and the like evolves subsequent to a trap having been laid by the employer.

“It seems that provided the courts are satisfied that the use of entrapment is properly scrutinised and the admissibility of evidence obtained as a result thereof carefully regulated, then courts tend to recognise that there are circumstances in which the pursuit of justice generally would be impeded if the evidence obtained from a trapping situation were excluded”.

For further information on the Employment Equity Act any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

One issue that employers face more often these days is that of employees who badmouth their managers, clients, colleagues or the work environment in general, on social media sites such as Facebook and Twitter.
A very thin one indeed, because just as individuals have a right to privacy, so do employers have the right to protect their business interests. Because of this, employees are not free to do and say what they like when they are away from work. Employees who, for instance, make derogatory remarks about their employers may be faced with legitimate disciplinary action. If the employer can prove that there is causal link between the employee’s conduct outside the work environment and the employer’s business interest, the employee’s conduct is no longer merely private but may lead to appropriate disciplinary measures. Although the list below is not exhaustive, the following are generally regarded as creating a sufficient link entitling employers to disciplinary action:
• The employee who made the negative remarks holds a position of trust in the employer’s business;
• An employee badmouths a client of the employer, with the result that the client takes (or threatens to take) its business elsewhere;
• The employee’s conduct created a serious breach of trust between the employee and the employer, or the employee’s colleagues; or
• The employee’s statements brought the company’s name into disrepute in the eyes of its customers or members of the public.
What employees communicate to the outside world, outside the work environment and outside working hours, is therefore not necessarily a purely private matter as many people believe the case to be.
For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

A Definition of Constructive Dismissal

It involves employees resigning on the basis that they have concluded that the employer has acted in a fashion which has rendered their on going employment to be unbearable.
Section 186(1)(e) of the Labour Relations Act provides that dismissal means “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.
“an employee bears an initial onus of showing, on an objective standard, that the employer has rendered the employment relationship so intolerable that no other option is reasonably available to an employee, save for termination of their relationship”.
To summarise constructive dismissal, an employee will have very limited prospects of success if they cannot show that the purported intolerability is true of a severe nature and that they attempted to resolve the grievances prior to resigning.

For further information on  Constructive Dismissal or any labour related matters, you can contact

Bernard Reisner:

W.Tel no.: 021-4233959
Fax: 021-4232105
Cell: 0824338714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

While there can be a little doubt that the CCMA, its processes and procedures, even the quality of arbitration awards, have improved considerably over the past years, there are still some flawed arbitration awards that slip through the cracks of the CCMA’s own scrutiny. In one such case, the Labour Court expresses severe criticism of what a CCMA commissioner did (or, more accurately, what the commissioner did not do).

Regrettably, the commissioner’s logic (or, more accurately, the lack of it) permeates many of the awards that are subject to review proceedings in this court. Come commissioners appear wholly incapable of dealing with disputes of fact – their awards comprise an often detailed summary of the evidence, followed by an “analysis” that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are the essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The popularity of social networking websites such as Facebook is presenting employers and employees with significant employment implications. It is not just inappropriate websites and excessive use of company e-mail that employers need to track, but also employee use of the often addictive social networking sites.
Employees have been found to be spending time whiling the hours away on Facebook during working hours, to the unproductive detriment of their employers. This was sufficient grounds on which to justify the dismissal. Employers should establish policies which address employee internet and e-mail abuse in general, and social networking.
For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The Department of Labour has granted the request of the Building Industry Bargaining Council Cape of Good Hope to increase its jurisdiction.
The Council’s authority now Overstrand Local Municipality, which means building industry employers, employees and unions in Gansbaai, Hangklip, Hermanus, Kleinmond and Stanford will be governed by the same collective agreement as the Peninsula, Boland and Malmesbury areas.
“We estimate that there are about 200 builders who will be affected in this area says Arnold Williams, secretary for BIBC (Cape of Good Hope).
“This means those employers will now be regulated and will have to compete on an equal footing with the employers in the other areas, as the cost of labour will be controlled. The parties to the council are in the process of negotiating the wages that should be prescribed for the area, and the party trade unions have started a comprehensive recruitment drive.
Building Industry employers and employees in the Overstrand district are presently governed only by the Basic Conditions of Employment Act, which does not prescribe minimum wages, and only makes provision for hours of work, annual leave and sick leave. This means that there are several issues on which the act is silent, creating disparity throughout the regions.
“With the expansion of the BIBC’s jurisdiction, the critical elements of minimum prescribed wages and benefits, annual bonuses, levies, medical aid, sick payment funds, public holidays, pension and provident funds will all be laid out, bringing out greater equality.”
The Building Industry Bargaining Council (Cape of Good Hope) collective agreement presently covers the Cape Peninsula, Paarl, Wellington, Somerset West, Strand, Stellenbosch, Darling and Malmesbury.
For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

In accordance with a recently released determination by the Minister of Labour, with effect from 01 July, 2011 the earnings threshold for the purposes of the Basic Conditions of Employment Act, No. 75 of 1997 (“the BCEA”) will be increased from R149,736 per annum to R172,000 per annum. (In this regard, “earnings” is defined in the determination as being an employee’s “regular annual remuneration before deductions (i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowance received, achievement awards, and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice.”)

For practical purposes, this means that with effect from 01 July 2011, only employees who earn in excess of R172.000 per annum will be excluded from the provisions of the BCEA pertaining to ordinary hours of work (section9), overtime (section10), compressed working weeks (section11), averaging of hours of work (section 12), meal intervals (section 14), daily and weekly rest periods (section 15), pay for work on Sundays (section 16), night work (section 17(2)), and payment for public holidays on which the employee would not ordinarily work (section 18(3)). Any employee who earns below this threshold amount will be entitled, by law, to receive the payments and/or benefits provided for in these sections.

Evidence is frequently confused with proof. Disciplinary and arbitration hearings are concerned, in essence with establishing whether or not an employee is “probably guilty” of the allegation(s) being levelled against them.

It is only once, and if, such “Probable guilt” is established that the selection of an appropriate sanction becomes relevant and necessary.

Guilty or not guilty verdicts are determined by whether there is enough proof to find the employee probable guilty. This notion of probable guilt is determined by assessing the evidence-led and the so-called persuasive, or otherwise, nature of the argument. It follows, therefore, that for an employee to be found (probable) guilty, the sum of the evidence led and argument presented, must lead a reasonable-minded person to infer “probable guilt”. That’s how the justice system works in the adjudication of labour disputes (such as alleged unfair dismissal cases) and indeed civil and criminal cases in general. The notions of evidence and proof are key to the fair adjudication of labour disputes. In short, evidence consist of oral statements (oral evidence), documents (documentary evidence) and objects (real evidence).
Some of these basic principles are worth visiting briefly. In the main, hearsay evidence is inadmissible, be it via third parties or documents. There are exceptions that, on occasion, permit the admission of hearsay evidence. Oral, real and documentary evidence each have their own rules and guiding principles. The leading of oral, for example, by way of witnesses is crucial. Evidence-in-chief, cross-examination and re-examination are the cornerstones of oral evidence, with each having a specific function and characteristics.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The term “employee” is defined in the Labour relationship Act of 1995, the Basic Conditions of Employment Act of 1997 and other labour related legislation. However, the term “independent contractors” is not defined in any legislation. In general terms, an independent contractor is someone who independently renders specified services, or produces specified products or results, to a number of clients.

It is critical to distinguish between employees and independent contractors because:

• Only employees are protected by the provisions of the LRA, BCEA and other labour-related legislations against, for example, unfair dismissal, unfair discrimination and exploitation. This means, among other things, that whereas the contract with an independent contractor can be ended as provided for in the contract between the parties, employees can only be dismissed if the substantive and procedural requirements for a fair dismissal have been met;
• Only employees are entitled to the basic conditions of employment as stipulated in the BCEA, such as annual leave, sick leave and maternity leave, and the deduction of UIF, and the corresponding pay over to the Department of Labour, is also only relevant to employees;
• Employers of the employees are liable for any unlawful acts committed by their employees in the course and scope of their duties (for instance, accidents that injure others) whereas no such liability rests in respect of the actions of independent contractors;
• Although employers are obligated to deduct income tax from the remuneration of their employees, true independent contractors are personally responsible to pay their own income tax directly to SARS. Whether a person is truly an independent contractor, as opposed to an employee, would depend on the circumstances and facts of a specific relationship. Where most of the following factors are present, the person concerned is likely to be an employee:
• The manner in which the person works is subject to the control or direction of the person to whom services are rendered;
• The person’s hours of work are subject to the control or direction of the person to whom services are rendered;
• In the case of a person who renders service to an organisation, the person forms part of that organisation;
• The person has worked for the person to whom services are rendered for an average of at least40 hours a month over the past three months;
• The person is economically dependent on the person to whom services are rendered.
• The person is provided with tools of trade or work equipment by the person to whom services are rendered;
• The person only works for, or renders service to, one organisation;
• The object of the contract between the parties is for the person to render personal services;
• The organisation to which services are rendered may choose when to make use of the services of the person;
• The person is obligated to perform lawful commands and instructions of the organisation to which services are rendered;
• The contract between the parties terminates on the death of the person who renders the services;
• The organisation to which the services are rendered provides training to the person in respect of the business’s methods;
• The person receives fixed payments from the organisation to which services are rendered over defined consistent periods, regardless of output or results provided;
• The person belongs to the organization’s pension fund or medical aid scheme (or qualifies for any other type of employee benefit provided by the organisation). In determining whether a person is an employee our courts and the CCMA are more interested in the factual nature of the relationship between parties, than the specific label attached to the relationship by the contract.
If an employer treats a person as an independent contractor under circumstances where the person is in reality an employee, the employer is placed at risk since it is not providing the employee with benefits employees are legally entitled to. Also, no income tax will be deducted from the person’s remuneration, exposing the employer to tax problems.

Furthermore, on termination of the person’s services the employer might face a claim of unfair dismissal since it in all probability would not have followed the correct legal procedures in terminating the person’s services.

For further information on Unfair Dismissal or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

In the 12 months to March 31, 2011, the Cape town CCMA received 18660 cases referred to it. This amounts to 12 percent of the national case.

Alleged unfair dismissals continue to dominate the CCMA’s case load, amounting to, as has historically been the case, 80 percent of all cases referred. The remaining 20 percent of labour disputes referred relate to such issues as alleged unfair labour practices, wage disputes, trade union rights and severance (retrenchment) pay disputes.

Nationally, the industry sectors in which labour disputes arise are typically retail (15 percent), business/ professional services (14 percent) , safety and security (12 percent), domestic workers (9 percent) and building / construction (9 percent).

The Cape Town CCMA has a conciliation settlement rate of 67.6 percent – significantly higher than the national average for the same period (62 percent). This means that approximately two-thirds of the labour disputes referred to the Cape Town CCMA do not proceed to arbitration, but are in fact “settled”, which ordinarily means that the employer pays the erstwhile employee who has referred the dispute a sum of money rather than proceed with the case.

Employers would be tempted to settle a case at conciliation either because they understand that their case is poor and they could loose at arbitration, or because it is felt that the payment of a settlement at conciliation avoids the inconvenience of proceeding to arbitration; this is sometimes referred to as payment “to avoid the hassle factor of arbitration”.

In Cape town the comparative “arbitration awards in favour of” statistics is more equally balanced, with employees winning 50,9 percent of arbitration cases heard, and employees winning the remaining 49.1 percent.

For further information on the Employment Equity Act any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za