Once an employer is shown to have acted inconsistently by dismissing one employee while not another who committed the same or similar misconduct, the prevalent view is that it automatically follows that the employee’s dismissal is substantively unfair.

Indeed, in accordance with the parity principle, element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. Each case will be treated on the basis of its own facts and circumstances.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

Current Minimum Wage for domestic workers from 01 January 2019 to 30 November 2019.

SCHEDULE:
DOMESTIC WORKER MINIMUM WAGE INCREASES FROM 01 January 2019.

Wage Tables for the Domestic Worker Sector
Table 1 Minimum wages for domestic workers who work more than 27 ordinary hours per week
Area A
Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.

Minimum rates for the period 01 January 2019 to 30 November 2019

Hourly Rate (R ) 15.00

Area B
Areas not mentioned in Area A
Minimum rates for the period 01 January 2019 to 30 November 2019

Hourly Rate (R ) 15.00

Table 2 Minimum wages for domestic workers who work 27 ordinary hours per week or less
Area A
Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.

Minimum rates for the period 01 January 2019 to 30 November 2019

Hourly Rate (R ) 16.03

Area B
Areas not mentioned in Area A
Minimum rates for the period 01 January 2019 to 30 November 2019

Hourly Rate (R ) 15.00

Claims for failure to pay any amount owing in terms of the minimum wage for domestic workers:
• There are thousands of domestic workers throughout South Africa who have lodged complaints, at the CCMA from January 2019, in regard to employers failing to comply with the minimum wage increases as cited above. These complaints have been successfully resolved by the CCMA Commissioners, either telephonically or at Conciliation / Arbitration hearings.

Compensation for Occupational Injuries and Diseases Bill amendments to help extend benefits to domestic workers

This bill, published in October 2018, by the Minister of Labour for public comment, proposes to extend benefits to domestic workers.
COIDA is a national law that provides for employees to claim compensation from the Compensation Fund for injuries, illnesses or diseases sustained in the course of their employment, or death resulting from such injuries or diseases. In its current form, COIDA expressly excludes domestic workers from the definition of “employee” and precludes them from claiming from the Compensation Fund for work-related injuries, illnesses or death.
Domestic workers injured on duty or sustain diseases stand to benefit from amendment of Compensation for occupational Injuries and Diseases (COID) Bill.
The COID Act currently excludes extending benefits to domestic workers, employed in private households, in case they are injured on duty or sustain diseases. COIDA expressly excludes the domestic workers from the definition of employee.
The COID amendments are in line with international labour standards. Both the domestic employer and employees will be required to register as such respectively in accordance with the provisions of the amended Act.

The most significant amendments proposed to the Act are to enact the provisions regulating:
• Inclusion of domestic workers under the category of employees for purposes of benefits in terms of the Act.
• Rehabilitation and Reintegration framework of injured and/or diseased employees into the workplace;
• Administrative amendments
• Improvement of some benefits

The Compensation Fund (CF) is an entity of the Department of Labour which is currently involved in establishing for Compensation for Occupational Injuries and Diseases.
The Compensation for occupational Injuries and Diseases Act applies to all employers; and casual and full time worker who, sustain workplace accident (are injured, disabled or killed); or work related diseases.
This bill may only be promulgated later in this year to include domestic workers from claiming compensation from COIDA.
The reasons why domestic workers, in private households, have been excluded from COIDA and still remain excluded are as follows:

• Domestic workers have always been a marginalised, vulnerable and exploited group, who have failed to organise themselves adequately to protect their interests. They have failed to exert sufficient pressure to become part and parcel of COIDA years ago.

On 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers from COIDA as unconstitutional.
This case shall assist domestic workers to become inclusive of COIDA, within the foreseeable future.
What are occupational injuries?
An occupational injury is any personal injury, disease or death resulting from an occupational accident arising from work activity. The most commonly reported injuries may constitute a bruise, sprain, cut, burn and a fall.

What are occupational diseases?
An occupational disease is a chronic ailment that occurs as a result of work or occupational activity. It is contracted as a result of exposure over a period of time to risk factors arising from work activity. The most commonly reported occupational diseases are asthma, skin diseases and diseases caused by chemical and biological agents.
Conclusion
Once the bill is promulgated and comes into effect, employers of domestic worker will need to register as employers with COIDA. Having registered with COIDA, it will protect the rights of both employer and domestic worker in households. Both employer and domestic worker need to become au fait with this Act and comply with the provisions outlined therein. It shall be an onerous task for the officials of the Department of Labour to enforce the provisions as they are already overburdened with enforcing other Acts that falls under their umbrella.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

South African employers are increasingly confronted with absenteeism due to the arrest of their employees. Whilst, in most instances, the alleged criminal misconduct is unrelated to the business of the employer, an arrest can directly impact both the operational requirements of the employer and the employment relationship.

It would not be reasonable to expect employers to keep a position open and available to an arrested employee for indefinite period. This is particularly so where the employee holds an important or key position within the employer’s business.

Dependent upon the potential indefinite length of absence, incapacity would be the appropriated means of terminating the employee’s employment. Procedural fairness must still, however, be adhered to and the employee must be provided with an opportunity to state his case – albeit by way of written representations.

On the other hand, employees may not be punished merely on suspicion of unproven allegations, and where temporary arrangements can be made to fulfill the employee’s function, this should be done.

Irrespective of whether an employer considers it appropriate to conduct an incapacity hearing, it is important to remember that an employer’s obligation to pay an employee’s salary is suspended upon arrest.

Incapacity is a ‘no-fault’ dismissal caused by an impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to either the employee or the employer.

It should be noted that incapacity is not limited to poor work performance, ill health or injury and accordingly, incarceration can constitute incapacity.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

Labour inspectors do not issue spot fines.

Under no circumstances shall a Labour Inspector issue on-the-spot fines for non-compliance. In terms of non-compliance, a Labour Inspector, guided by the labour laws, can only issue the following notices – 14 days undertaking for non- compliance with the Basic Conditions of Employment Act while for non-compliance with the Occupational Health and Safety Act, an Inspector can issue a 60 days improvement notice and/or a 60 days contravention notice; and a prohibition notice to stop operations which can be revoked after an institution has fixed the items of concern.
An Inspector could refer the non-complying instruction to the Labour Court or the local Magistrate’s Court for further adjudication.

Bogus Labour Inspectors have been known to target businesses. They demand money from employers alleging it is for non-compliance with labour laws and they issue fines that they demand to be paid on the spot.

Labour Lawyers in Cape Town has what you need and more.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

General steps by an employee to appeal against a written warning:

1. An employer should establish the facts by doing an investigation in relation to the allegations being made against the employee. This may involve perusing documentary evidence, the employer’s written policies, video/social media evidence, engaging with the employee and witnesses who may shed light i.r.o the allegations.

2. Dependent on the outcome of the investigation, the employer may draft a notice to attend a disciplinary hearing setting out the charges, whether the employee is to suspended, the time, date and venue of the hearing, the employee’s rights etc.

3. Subsequent to the disciplinary hearing, the impartial chairperson shall draft his/her written findings and recommendation to impose a written warning or not against the employee. If a warning is recommended, the employer may endorse the recommendation.

4. An employee may lodge a written appeal within a reasonable time period challenging the warning. It should set out what decision is being appealed and the grounds for appeal.

5. If the appeal against the warning fails, the employee is entitled to refer the matter to the CCMA or appropriate Bargaining Council.

6. It is unlawful for an employer to fail to have an investigation, or to fail to engage with the employee by giving the employee an opportunity to state his/her case to rebut the allegations. It is a common flaw that employers draft written warnings by failing to have an investigation/ giving the employee an opportunity to state his/her case and merely instruct an employee to sign a pre-drafted warning.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

This bill proposes to extend benefits to domestic workers.

COIDA is a national law that provides for employees to claim compensation from the Compensation Fund for injuries, illnesses or diseases sustained in the course of their employment, or death resulting from such injuries or diseases. In its current form COIDA expressly excludes domestic workers from the definition of “employee” and precludes them from claiming from the Compensation Fund for work-related injuries, illnesses or death.

Domestic workers injured on duty or sustain diseases stand to benefit from the amendment of Compensation for occupational Injuries and Diseases (COID) Bill.

The COID Act currently excludes extending benefits to domestic workers in case they are injured on duty or sustain diseases.

The COID amendments are in line with international labour standards. Both the domestic employer and employees will be required to register as such respectively in accordance with the provisions of the amended Act.

 

The most significant amendments proposed to the Act are to enact the provisions regulating:

• Inclusion of domestic workers under the category of employees for purposes of benefits in terms of the Act.
• Rehabilitation and Reintegration framework of injured and/or diseased employees into the workplace;
• Administrative amendments
• Improvement of some benefits

 

The Compensation Funds (CF), an entity of the Department of Labour on Monday (19 November 2018) started hosting a national series of public hearings on the Compensation for Occupational Injuries and Diseases amendment Bill.

The Compensation for occupational Injuries and Diseases Act applies to all employers; and casual and full time worker who, sustain workplace accident (are injured, disabled or killed); or work related diseases.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

The Labour Laws Amendment Act (LLAA),  Act No 10 of  2018 amends the BCEA by introducing new forms of leave into South Africa labour system. Parental leave, adoption leave and commissioning parental leave is now available to employees as follows:

Parental leave

25A. (1) An employee, who is a parent of a child, is entitled to at least ten

consecutive days parental leave.

 

(2) An employee may commence parental leave on—

(a) the day that the employee’s child is born; or

(b) the date—

(i) that the adoption order is granted; or

(ii) that a child is placed in the care of a prospective adoptive

parent by a competent court, pending the finalisation of an

adoption order in respect of that child,

whichever date occurs first.

 

(3) An employee must notify an employer in writing unless the

employee is unable to do so, of the date on which the employee intends to—

(a) commence parental leave; and

(b) return to work after parental leave.

 

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before the—

(i) employee’s child is expected to be born; or

(ii) date referred to in subsection 2(b); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably

practicable.

 

(5) The payment of parental benefits will be determined by the Minister,

subject to the provisions of the Unemployment Insurance Act, 2001 (Act

No. 63 of 2001).

 

Adoption leave

 

25B. (1) An employee, who is an adoptive parent of a child who is below

the age of two, is subject to subsection (6), entitled to—

(a) adoption leave of at least ten weeks consecutively; or

(b) the parental leave referred to in section 25A.

 

(2) An employee may commence adoption leave on the date—

(a) that the adoption order is granted; or

(b) that a child is placed in the care of a prospective adoptive parent by a

competent court, pending the finalisation of an adoption order in

respect of that child,

whichever date occurs first.

 

(3) An employee must notify an employer in writing, unless the

employee is unable to do so, of the date on which the employee intends to—

(a) commence adoption leave; and

(b) return to work after adoption leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before the date referred to in subsection (2); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably

practicable.

 

(5) The payment of adoption benefits will be determined by the Minister,

subject to the provisions of the Unemployment Insurance Act, 2001 (Act

No. 63 of 2001).

 

(6) If an adoption order is made in respect of two adoptive parents, one

of the adoptive parents may apply for adoption leave and the other adoptive

parent may apply for the parental leave referred to in section 25A: Provided

that the selection of choice must be exercised at the option of the two

adoptive parents.

 

(7) If a competent court orders that a child is placed in the care of two

prospective adoptive parents, pending the finalisation of an adoption order

in respect of that child, one of the prospective adoptive parents may apply

for adoption leave and the other prospective adoptive parent may apply for

the parental leave referred to in section 25A: Provided that the selection of

choice must be exercised at the option of the two prospective adoptive

parents.

 

Commissioning parental leave

 

25C. (1) An employee, who is a commissioning parent in a surrogate

motherhood agreement is, subject to subsection (6), entitled to—

(a) commissioning parental leave of at least ten weeks consecutively; or

(b) the parental leave referred to in section 25A.

 

(2) An employee may commence commissioning parental leave on the

date a child is born as a result of a surrogate motherhood agreement.

 

(3) An employee must notify an employer in writing, unless the

employee is unable to do so, of the date on which the employee intends to—

(a) commence commissioning parental leave; and

(b) return to work after commissioning parental leave.

 

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before a child is expected to be born as a result of

a surrogate motherhood agreement; or

(b) if it is not reasonably practicable to do so, as soon as is reasonably

practicable.

 

(5) The payment of commissioning parental benefits will be determined

by the Minister, subject to the provisions of the Unemployment Insurance

Act, 2001 (Act No. 63 of 2001).

 

(6) If a surrogate motherhood agreement has two commissioning parents,

one of the commissioning parents may apply for commissioning parental

leave and the other commissioning parent may apply for the parental leave

referred to in section 25A: Provided that the selection of choice must be

exercised at the option of the two commissioning parents.

 

(7) In this section, unless the context otherwise indicates—

‘commissioning parent’ has the meaning assigned to it in section 1 of the

Children’s Act, 2005 (Act No. 38 of 2005); and

‘surrogate motherhood agreement’ has the meaning assigned to it in

section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).

 

The LRAA provides for unemployment insurance benefits to be paid to parents who take parental leave, adoption leave and/or commissioning parental leave. Once the implementation date of the parental leave comes into force and effect, it will be paid out of the Unemployment Insurance Fund (UIF).

Employers are advised to amend their employment contracts to include paternity leave paid out to the employee by UIF.

These amendments will improve the bonding relationship between parents and the child and strengthen family relations.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

The National Minimum Wage Act sets South Africa’s first National Minimum Wage at R20.00 an hour, equivalent to R3 500.00 per month, dependent on the number of hours worked, and creates a phase-in period for farm workers, forestry workers and domestic workers.

From 03 December to 31 December 2018, the minimum wages for a domestic worker will be increased as per the Domestic Worker Sector Minimum Wages. This increase is only valid until 01 January 2019. With effect from this date the National Minimum Wage for domestic workers will be R15.00 per hour, regardless of the area in which they work noting that where the current minimum wage is higher than the one contained in the National Minimum Wage Act (Domestic Workers in Area A who work 27 ordinary hours per week or less), the higher rate will apply. Namely; R16.03 per hour calculated in terms of the number of hours worked.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

What are the statutory provisions and the rules governing the right to representation?

The LRA contains provisions governing the right to representation in the CCMA’s processes insofar as it concerns the right of registered trade unions and employers’ organisations to represent their members but does not regulate the right of legal practitioners to represent parties in CCMA’s processes.

Who may represent a party in any process involving any dispute?

In any dispute and in any process-

• A party may be represented by an official or office bearer of that party’s registered trade union or employers’ organisation;

• An employer party may be represented by an employee of such party;

• An employer party may be represented by a director if a company and by a member, if a close corporation;

• Parties, who are still minors i.e. less than 18 years old, maybe represented by their legal guardians.

Who may not represent a party at all?

• As a general rule, an employee party may not be represented by a fellow employee, unless such fellow employee is a member, official or office bearer of that employee party’s registered trade union.

• A labour consultant or business associate may also not represent any party unless they qualify on a basis permitted by the rules. The provisions of Rule 25 have been amended to empower Commissioners to exclude parties who believe that their membership of an employers’ organisation was for the sole purpose of circumventing the rules and representing parties therein.

• A legal practitioner may not represent any party during conciliation including conciliation part of a con-arb.

In what processes may a party be represented by a legal practitioner?

A party may as of right be represented by a legal practitioner in any arbitration including the arbitration on a con-arb if the process does not relate to an unfair dismissal dispute in which a party has alleged that the reason for the dismissal is related to conducting or capacity.

A party may be represented by a legal practitioner in the arbitration including the arbitration part of a con-arb relating to an unfair dismissal dispute where a party (i.e. any party) has alleged that the reason for the dismissal related to conducting or capacity, but only if –

• The Commissioner and all the other parties consent; or

• The Commissioner made a ruling that it is unreasonable to expect a party to deal with disputes without legal representation after considering (a) the nature of the questions of law raised by the dispute; (b) the complexity of the dispute; (c) the public interest; and (d) the comparative ability of the opposing parties or their representatives to deal with the dispute.

What procedure should parties follow in applying for legal representation to be allowed?

• Parties who desire that legal representation be allowed should first seek the consent of the other party, preferably in writing. The grounds on which the consent was sought and granted must be specified. Once such consent has been obtained, the consent of the Commissioner should also be sought. Should all parties consent that legal representation be allowed, a Commissioner must consider the grounds on which the agreement is based and should exercise discretion whether to grant consent. Should the other party/parties as well as the Commissioner consent that legal representation is allowed, there is no need to bring formal application or to make further representations.

• Parties may also brief a legal practitioner shortly before the arbitration hearing rendering it impossible to allow the prescribed time for notices of opposition and replying affidavits. In order to facilitate the speedy resolution of disputes, the practice is to allow even oral representations in support of such applications to be made at the commencement of arbitration and for an arbitrator to make ruling based on such oral representations.

In their affidavits, statements or representations (as the case may be), parties should deal with the grounds on which it is alleged that it would be unreasonable to expect a party to deal with the dispute without legal representation and, in particular, with factors that a Commissioner must consider before making a ruling, i.e. –

• The nature of the questions of law raised by the dispute;
• The complexity of the dispute;
• The public interest; and
• The comparative ability of the opposing parties or their representatives to deal with the dispute.

Parties are seeking a ruling that legal representation be allowed should not anticipate that legal representation will be allowed and must prepare for arbitration so as to be able to proceed if legal representation is not allowed. Likewise, parties opposing an application that legal representation be allowed should not anticipate that legal representation will not be allowed and must prepare for the arbitration so as to be able to proceed with the arbitration if legal representation is allowed. If they would themselves require legal representation, if the other party is allowed legal representation, they should arrange for their legal representative to be available in the event that legal representation is allowed.

The rules do not indicate what weight should be attached to each of the four factors and Commissioner have discretion as to the weight to be attached to each factor.

• Whether are any novel/intricate questions of law that need to be decided; and

• Whether the questions of law are such that a party cannot reasonably be expected to deal with same without legal representation.

In deciding whether a matter is so complex that it is unreasonable to expect a party to deal with it without legal representation, a number of factors need to be taken into account. e.g. –

• Whether evidence of a technical nature need to be led;

• Whether it is relevant to hear evidence of a long history;

• Whether the circumstances giving rise to the dispute are complex;

• The number of witnesses to be called and the extent to which versions of different witnesses are required to be put under cross-examination;

• The expected duration of the hearing; and

• The extent to which the Commissioner would be able to assist the parties to lead their evidence and to ensure that versions are put during cross-examination.

The public policy that needs to be considered is basically the purpose behind the rules limiting the right to legal representation. The perception was that lawyers may make an arbitration process legalistic and expensive and that they are responsible for delaying the proceedings due to their unavailability and the approaches that they adopt. Evidence may be placed before Commissioner that the particular legal representative would not adopt a legalistic approach, that he/she would readily be available and that the assistance of a legal representative would shorten the proceedings and render it less expensive, Such evidence may cause a Commissioner to attach less weight to the public policy that led to the limitation on the right to legal representation. It is further relevant to consider that public policy requires that a party be afforded the right to legal representation in complex cases that may behave dire consequences for the party concerned and this may lead to a Commissioner attaching more weight to the other factors. Public policy further requires that a Commissioner should not create a perception of bias and when parties are unrepresented it is likely that a Commissioner will be required to provide more assistance and this in turn increases the likelihood of perceptions of bias.

The comparative ability of the parties and/or their representatives to deal with the dispute is an important consideration. In this regard a Commissioner should not only consider what the position would be if legal representation is not allowed but also what it would be should legal representation be allowed. Educational qualifications, relevant experience and the degree of sophistication are amongst the factors that should be considered. There is more pressure on an individual presenting his/her own case, to deal with the dispute and this should also be taken into account.

The right to legal representation is acquired once a Commissioner has concluded that it would be unreasonable to expect a party to deal with the dispute without legal representation. Once a Commissioner has reached such conclusion he/she has no discretion and the party concerned becomes entitled to legal representation during the arbitration. If the Commissioner refuses legal representation and the party concerned is/are lay person/s, there is an obligation on the Commissioner to assist the parties on a neutral basis, to present their cases.

What proof should Commissioners require before allowing a representative to represent a party?

The Commissioner should embark on a fact-finding exercise in order to establish whether the representative has a right to appear in the process, In this regard the Commissioner –

• May call upon the representative to present proof that he/she qualifies in terms of the LRA and the rules to represent the party; and

• May require the representative to tender any documents, such as, constitutions, payslips, contract of employment, documents and forms, recognition agreements and/or proof of membership of a trade union or employers’ organisation.

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

Many employers have policies that prohibit employees from being under the influence of alcohol or drugs at work and this type of policy remains valid and unlawful; even after the recent Constitutional Court judgement that grants individuals the right to cultivate/possess and use cannabis in “private.”

This judgement does not mean that an employee now has a “right” to report for duty under the influence of marijuana, having smoked at home prior to commencing work. Nor can the employee insist on a right to have a marijuana smoke break during his lunch, even if that is outside the workplace.

The effects of smoking marijuana can last up to 3 hours and remain detectable in the bloodstream for up to 30 days after consumption.

An employer has the right to prevent an employee from entering the workplace with cannabis in his / her possession or if the employer suspects that the employee smoked marijuana prior to reporting for duty and is still under its influence.

It is the employer’s obligation to provide safe working conditions for its employees. The Constitutional Court judgement does not affect the applicable provisions of the Occupational Health and Safety Act.

Should an employee undergo a blood test in the workplace administered by a professional authorised person on behalf of the employer, and it is found that the employee’s blood contains traces of cannabis, the employer may suspend the employee (in writing) and take disciplinary steps against that employee. The employee could be dismissed.

 

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za