South African labor law governs relations between employers, employees and unions in the Republic of South Africa.
Video South African labour law
Histori
The Original Labor Act Act 1911 is prohibited strikes by unions, introducing wage ceilings and graduation systems to move around jobs. More than 70,000 Chinese workers were brought in, and used by landowners to cut wages for other workers. Among white workers, there were significant riots, and major strikes occurred in 1907, 1913, 1914 and 1922
During the sixteen-year period, from 1979 to 1995, several important developments took place in the field of labor law in South Africa, beginning with a radical change in these early years, when a significant Commission of Inquiry was conducted, resulting in the creation of an Industrial Court, which was empowered to shape, alter, shape and develop law. Prior to 1995, most employment relationships were based on contracts. In 1995, many laws developed by the Commission and the Industrial Court were united under the Labor Relations Act 1995 (LRA). Since then, most of the labor laws are based on the law.
Prior to 1995, an employee may be dismissed in the case of an employment contract, which may allow reasons for dismissal. Since 1995, an employee may be dismissed solely for errors, operational reasons and incompetence. The 1995 Labor Relations Act is an important part of the law, as it recognizes the need for quick and easy access to courts in labor disputes. The Industrial Court has the status of the Court of Appeal, and is therefore inaccessible to all workers.
1995 also saw the introduction of the Commission for Conciliation, Mediation and Arbitration (CCMA) which is an administrative court. The Conciliation, Mediation and Arbitration Commission seeks first and foremost to make peace between the parties. If unsuccessful in this case, the problem will move to arbitration. The whole process is very informal, free of charge, and therefore very accessible to laborers, who often use it: About 300 new cases are brought before the Conciliation, Mediation and Arbitration Commissions every day. In addition to the Commission for Conciliation, Mediation, and Arbitration, in 1995 there was the introduction of the bargaining board, which enabled communication across the industry. The bargaining council is regulated collectively and voluntarily, and must be registered. To be registered, alternative dispute resolution mechanisms, similar to the Commission for Conciliation, Mediation, and Arbitration, shall apply.
The 1995 Labor Relations Act also regulates the problem of justice, not only in the termination of employment but also during the period of employment. In 1998, however, most laws regarding unfair labor practices were removed from the Labor Relations Act 1995 and included in the Employment Equity Law (EEA). The EEA also addresses issues such as justice regarding HIV status or workers' immune defects (HIV) status, as well as affirmative action issues.
The Working Basic Act (BCEA), the Health and Safety Act, and the Skills Development Act, should be read in conjunction with the EEA. The Skills Development Act provides that a fraction of the salary of the worker should be donated to the Department of Labor, allowing specific workshops to be run that are designed to develop the skills.
Maps South African labour law
Constitution
Chapter 2 of the Constitution contains several provisions relevant to labor and employment law:
- rights to the equation
- protect dignity
- protection against slavery, forced labor and discrimination
- the right to pursue a livelihood and
- protection for children from exploitative labor practices and jobs that are harmful to their well-being.
It is important to interpret all labor laws in light of the Constitution.
Article 23 of the Constitution specifically addresses employment relationships, provided that everyone is entitled to fair work practices, and in particular the right
- to form and join trade unions;
- to participate in trade union activities and programs; and
- to attack
Every employer, meanwhile, has the right
- to form and join an employers' organization; and
- to participate in the activities and programs of employers' organizations.
Every trade union and every employers' organization have rights
- to define its own administration, program, and activity
- to set and
- to form and join federation
Finally, every trade union, employers 'and employers' organizations have the right to engage in collective bargaining.
Article 23 (1) is an unusual provision - only South Africa and Malawi are firmly protecting the right to fair labor practices - because it is so broad and comprehensive. The precise definition of fair labor practices is impossible, as it is a dynamic field of law, rooted in socio-economic rights. Section 23 (1) refers to "everyone," which includes more than employees and workers; it also includes prospective workers, employers and legal persons.
Article 23 is not entirely universal, however, because soldiers are exempt from ambit as long as they do not attack at war.
The Labor Relations Act was promulgated as a "national law" referred to in subsections 23 (5) and 23 (6), giving each that "national laws may be applied to regulate collective bargaining" and that " national legislation may recognize the unity of the security arrangements contained in the collective agreement. "The two sub-sections stipulate that, to the extent that the law may limit any of the rights in section 23, the limitation shall be in accordance with article 36 (1), the clause restrictions Constitution.
The current Working Procedure Code is also designed to effect the right to fair labor practices. Both Acts are supported by the EEA, which replicates the equality clause in the Constitution in its totality, adding that one can not discriminate based on the status of human immunodeficiency virus (HIV).
The general guarantees of fair labor practices have a broad influence in the civilian approach to the interpretation of the rights of the parties to the employment contract.
All courts are ordered, when applying and developing common law, to pay attention to the spirit, purpose and object of the Bill of Rights. This calls for a review of some of the assumptions underlying general legal employment contracts, in particular the employer's command power and unrestricted rights in promotion and dismissal.
In addition, the judgment of labor courts on controversial issues such as the strike of striking workers should be reviewed by the Constitutional Court, as long as applicants have exhausted the procedures available to them under labor legislation.
In NUMSA v Bader Bop , the Constitutional Court overturned the decision of the Labor Court of Appeals which limited the interpretation of the Labor Relations Act of 1995. The Court recognized the need for councils of collective bargaining and collective bargaining that facilitated the establishment of trade. labor union. The court stated that minority unions are unlikely to strike to support the demands of organizational rights reserved in the Act for the majority union.
At the NEHAWU v University of Cape Town , the Constitutional Court overturned another decision of the Labor Court of Appeals that limited the interpretation of the Labor Relations Act of 1995. It has been argued that the term "everyone" does not belong to a university or company, but the court decided otherwise. Subsequently, the court ruled that, under the original section 197 of the Labor Relations Act of 1995, employment contracts are automatically transferred when the business is transferred, regardless of the wishes of the employer.
SAYU v Defense Minister, another Court of Justice, Judge O'Reagan's case dealt with the concept of "workers," and stated that, although the Labor Relations Act of 1995 did not apply to the South African National Defense Force of Members (SANDF ), they are still "workers" in terms of the Constitution, which protects the rights of everyone in South Africa.
Work contract
Parties
Identify
The first question being asked, when seeking settlement of the labor law problem, is whether the parties are "employees" and "employers" in the sense of applicable law or general law.
This has long been a difficult task in South Africa, since it is not always immediately apparent whether the parties have entered into the locatio conductio operarum (contract of work) or just the location operations locus () employment contract).
Distinguishing between the two types of contract is very important, because different legal consequences flow from various forms of contract. Most important is that South Africa's labor laws apply only in terms of employees, who are entitled to social security benefits and have access to legal mechanisms if they wish to seek remedies for violations of their employment rights. Similarly, only employers are bound by labor laws, and are responsible for their employees' offenses.
General law
The first source to be examined, when looking to determine whether the parties in the employment relationship are employers and employees, is the contract in which they have entered.
The contract of work becomes available when the parties conclude agreements in accordance with the requirements of the locatio conductio operarum . The contract of work is traditionally defined as "the contract between two persons, the employer (employer) and the servant (employee), to let and hire the latter service for the reward, the master is able to supervise and control the helper's work."
This, however, raises the question of how much supervision or control is necessary to differentiate between employees and independent contractors.
The reported assessments indicate that the task of distinguishing employees and employers from parties with other contractual relationships involving the provision of employment, or the provision of services, is not a matter of definition; Such contract classification is "substance matter, not just form."
Therefore, the nature of the actual contract is determined by the relationship between the parties, not just the labels provided by the parties in their contracts.
Statute
The definition of law does not solve the problem. "Employee" is defined
- in section 213 of the Labor Relations Act of 1995 as
- "Everyone excludes independent contractors, who work for others or for the State, and who receives, or is entitled to receive, any remuneration, and
- "anyone who in any way helps run or run an employer's business;"
- in part 1 of the Basic Rules of the Employment Act with exactly the same words; but
- in section 1 of the EEA as "anyone other than an independent contractor who
- "works for others or for the State and who receives, or is entitled to receive, any rewards, and
- "in any way help run or run a business."
The difference between the Labor Relations Act of 1995 and the EEA is that the 1995 Labor Relations Act excludes independent contractors only in section 213 (a), whereas the EEA excludes independent contractors in both sub-sections. However, it is safe to assume that even from the second part of the definition of "employee", as appears in the Labor Relations Act of 1995 or the Constitution of Employment Act, independent contractors are implicitly excluded.
At the core of sub-section (a) of both definitions there is a reference to the employment contract: one person works for another in return for some form of remuneration.
The basic idea behind paragraph (b) of both definitions is that employees are the ones who place their capacity to work in the disposal of others. This is the essence of the job.
The case of the African Liberty Life Association v Niselow repeats the above-mentioned law and the interpretation of the definition of "employee."
Court
The employment law does not define a "service contract" or a "work" concept at all.
This means that it is necessary to look beyond the law to determine the meaning of these terms, to differentiate between employees and independent contractors.
The court has formulated a number of tests to illustrate the differences.
Test control
The control test focuses on the "control" element performed by employers over employees.
The power to control is traditionally regarded as a feature of the work contract. With the emergence of high-skilled employees who were given the freedom to do their job, the courts were no longer in control of the de facto control, as they once did, but acknowledged that the right to control was enough.
The court initially applied the terms of the right to strict control, as in R v AMCA Services , where the chairman spoke of "the right to control, not just the end to be achieved by others." labor and common lines to follow, but the detailed way in which the work should be done. "
It is now clear, however, that the courts are in mind, the right to control only in principle. The employer does not choose to exercise that right does not make the contract anything other than the job.
Implementation of control tests in isolation is entirely inadequate, as certain employees have extensive discretion about how to do their job. Such wisdom does not alone make them independent contractors.
The main difference between an employee and an independent contractor is that the principal has no legal right to prescribe the way in which the independent contractor brings the desired result, but may prescribe the method by which the employee works. In the Colonial Guild of Life Guarantees v MacDonald, the court declares that the employee is subject to employer control in the sense that the latter has the right to prescribe not only the work to be done but also the way in which the work should do. An independent contractor, on the other hand, can be directed only to what work should be done, not how it should be done.
In any case, to determine the contract in the case of one of its characteristics is tautological.
Organization test
The organizational test was developed in French law and adopted by South African law at R v AMCA Services and Another . This is based on the assumption that whether an employee does not rely on submission to orders; it depends on whether the person is part of the organization.
In other words, one sees the extent to which a person (worker) is integrated into the organization of another person (employer), or whether the person does the work in another's organization.
The work of independent contractors, though done for business, is not integrated into it; it's just an accessory for it.
If a person is entered into or reasonably related to the organization, that person will be considered an employee or employee even if the employer may have little control over him/her.
One of the problems with this test is that it is not always possible to measure the degree of integration, or to determine the level of integration sufficient for a person to qualify as an employee.
The test was rejected by the Appeals Division at S v AMCA Services on the basis of it being too vague.
Test multiple or dominant-impressions
Lack of control and organizational tests lead the courts to approach questions in the same way that they approach so many other problems: The relationship is seen in its entirety; a conclusion is drawn from the whole picture.
In Ongevallekommissaris v Onderlinge Versekeringsgenootscape AV-BOB , although the court did not specify exactly what might be included in the general overview, the guidance may come from the case of the English Ready Mixed Concrete v Minister of Pension and National Insurance , where the chairman establishes three possible components:
When the court checks "other provisions of the contract," they will consider all aspects of the relevant relationship. These include:
- contract form;
- the right to supervise (in other words, whether the employer has the right to supervise that person);
- to what extent the worker relies on the employer in performing his duties;
- whether employees are not allowed to work for others;
- whether workers are required to devote certain time to their work;
- whether the worker is obliged to perform his duties in private;
- whether workers are paid at a fixed rate or on a commission basis;
- whether the worker provided his own equipment and equipment; and
- Whether an employer has the right to discipline, suspend, and dismiss workers.
The decisive difference between the control test and the dominant impression test is that, in the latter, the presence or absence of control is only one factor to be taken into account.
At Smit v Workers' Compensation Compensation , the court must decide whether Smit, who has been hired as an "agent" for an insurance company, is an employee or not. She used to be
- are paid on a commission basis;
- is prohibited from taking certain actions (such as pledging corporate credit) without written authority;
- is prohibited from working for other companies at the same time, but is not required to work full-time and be able to do other work at different times;
- considering the use of a company motor car, but having to pay for fuel and services;
- working with managers, but no supervision and control of Smit by insurance companies; and
- can get help from others in carrying out their duties.
The dominant impression test was followed in this case, and Smit was detained not to become an insurance company employee.
In the Association of Medical SA v Health Minister, some district surgeons challenged the provincial MEC's ​​decision to Health for Independent States to conclude their contracts briefly as part of the restructuring of the district health service. Double or dominant impression tests are followed, and the court uses the factors discussed in Smit to assist in obtaining a dominant impression that part-time district surgeons are in fact State employees.
The court stated that the dominant impression test requires that one should pay attention to any considerations or indica that will contribute to the determination of whether the contract is a service or a job, and react to the implied impression of all such as indica . The Labor Court pursuant to its decision on the following factors:
- Doctors provide "personalized service."
- Doctors are expected to "beck and call" from employers 24 hours a day, and to give preference to official duties on them in their personal practice.
- The employer is obliged to pay the "contract salary" to the doctors even without any actual work done, as long as the doctors provide themselves to do the work.
- Although doctors are professionals, the provincial government does have control over the way services are delivered.
The test has been heavily criticized. Etienne Mureinik says that it tests
does not offer guidance in answering the (legal) question of whether the facts are such that the individual may be considered a servant in the general legal sense in difficult cases (penumbral). Indeed, this is not a test at all. To say that a work contract is a contract that looks like one job there is no light at all on the legal nature of the relationship.
This criticism is based on the idea that it is not useful to say a certain relationship exists because it looks like it.
Productive capacity test
In other decisions, the court appears to have used what could be described as a "productive capacity" test.
This test is formulated in Martin Brassey's article "The Nature of Employment" in the following terms:
An independent contractor "sells a job" while an employee "sells his hand" [... E] mployment is a relationship in which one person is required, by contract or otherwise, to put his capacity to work in other disposal [... A] n employees must be differentiated of the independent contractor, who does the delivery, not the capacity to produce, but the product of that capacity, the work completed.
Differences between employees and independent contractors
In the SA Broadcasting Corporation v McKenzie , the Employment Appeals Court summarizes the main differences between the right employment contract and the so-called "employment contract" ( locatio conductio operis ):
- In the first, the object is rendering personal services between employers and employees; in the second, the object is the specified production service specified or the production of certain specified results.
- Employees make services on the employer's behalf; independent contractors are not obligated to do their work in private, unless otherwise agreed.
- The employer may decide whether he or she wishes to have an employee rendering service; an independent contractor is bound to do certain work or produce the results specified within a specified or reasonable time.
- Employees are obliged to comply with legitimate and reasonable instructions regarding the work to be done, and how to do; independent contractors are not obliged to obey instructions on the way in which tasks should be performed.
- Proper employment contracts are terminated by employee deaths; the employment contract is not terminated by the death of the contractor.
- The employment contract expires upon the completion of an agreed period; the employment contract ends on the completion of the work specified, or on the production of the prescribed results.
Labor Relations Acting 1995 s 200A
There is little work that can not be outsourced. Outsourcing is generally not supported by unions, which represent employees. If the work is outsourced, the worker is an independent contractor. Political pressure is placed on the government to move from outsourcing and more to work.
In 2002, accordingly, new assumptions were added to the 1995 Labor Relations Act, providing guidance on when to ascertain whether a person is an employee or not. This assumption was introduced as part of a significant amendment to the Labor Relations Act of 1995 and the Basic Provisions of the Manpower Act in 2002.
The effect of this irrefutable assumption is that, if one or more of the list of factors exists, the person is considered an employee unless and until otherwise proven. Many of the factors and problems spoken of by courts in the above case reappear: Such presuppositions are created
- if the person's work depends on the control or direction of others;
- if the person's work hours are subject to the control or direction of others;
- if, in the case of a person working for an organization, that person is a part of that organization;
- if the person has worked for that person for an average of at least forty hours per month for the last three months;
- if the person is economically dependent on the person working or providing the service;
- if the person is given a tool of trade or work equipment by another person; and
- if the person only works for or renders the service to one person.
Legislative provisions have been taken by some as only a re-statement or a summary of the principles established by the courts with the passage of time.
Although this assumption is useful in determining whether a person is an employee or not, since it is closely linked to the principles and approach developed by the court, the Labor Court is held, at Catlin v CCMA , that section 200A does not exclude the principle that the true nature of the relationship between the parties must be collected from the contract between them. Section 200A is not a starting point, therefore; the court is of the opinion that it is necessary to consider the terms of the contract before applying the presumption.
Essential
The general concept of labor law determines the location for the interpretation of the Labor Relations Act of 1995.
The employment contract is the basis of the relationship between an employee and his employer. It connects both parties in the employment relationship, regardless of the contract form taken.
The existence of a working relationship is the starting point for the application of all rules of employment law. Without a working relationship between the parties, the rule of labor law does not apply.
The origin of modern South African employment contracts lies in Roman law, where differences are made between the two types of contracts discussed above: locatio conductio operis and locatio conductio operarum .
In the case of common law, a person does not have to have a written contract; Therefore, not having a contract in written form is not a fatal error, because the contract can be verbal. However, there are a number of laws that require certain employment contracts to be made in writing. Section 29 of the Basic provisions of the Manpower Act, for example, states that employers should provide employees with certain written particulars of specific matters, such as working hours and wages.
As with any contract, the locatio conductio operarum begins when the parties have agreed to the important provisions, unless both parties have agreed to suspend operations for a certain period. If the contract operation is suspended, the employer is obliged to allow the employee to commence the work on a specified date. Failure to do so, without good reason, is a breach of contract in common law and dismissal under the Labor Relations Act of 1995. It is therefore important to determine what the essence of the contract is.
To be stripped of its essence, the current employment contract can be defined as an agreement between two parties, in which case one party (employee) works for another (employer) in return for remuneration. Although this definition seems simple, it contains a number of important principles, aspects, and implications. When they are taken into account below, the definition of the employment contract may be expanded as follows:
Contract of employment shall be a voluntary agreement between two legal persons (parties) in respect of which one party (employee) places his or her personal service or employment potential at the expense of another party (company) for an indefinite period or periods specified in return for some form a fixed or confirmed remuneration, which may include money and/or payment in kind. It gives the employer the right to specify the employee's duties and to control the way employees discharge them.
Agreement
First, it should be noted that the employment contract is based on an agreement; the parties must enter into it voluntarily. This idea finds expression in section 13 of the Constitution, which states that "nothing can be subjected to slavery, slavery or forced labor," and article 48 of the Working Conditions Act, which states that "all forced labor is forbidden."
Another implication of the fact that the employment contract is based on the agreement is that it is a contract, and therefore must comply with our legal requirements for a valid contract. If it does not comply with these terms, it shall not be deemed binding and enforceable.
Consensus among the parties means that both must have a serious intention to create mutual rights and obligations that will legally bind them. Each of them must be fully aware of the nature of his duty, and the other has this intention.
At common law, parties are not required to observe any formalities. There is no requirement that contracts be made in writing, but certain contracts of employment are required by law to be made in writing, such as merchant seamen and learners under the Skills Development Act. In addition, those apprentices and candidate lawyers must also be registered with the appropriate authorities. Finally, where the parties wish to amend the provisions of the Constitution, this must be done in writing.
Work
Second, one important concept in the original definition is the concept of work. Generally, working means putting the potential of a person's labor at the disposal and under the control of others. This means that, when we work, we offer our services to others, and agree that others will be able to tell us what to do, when to do it, how to do it and where to do it.
To place your workforce potential at the disposal of other means to offer your ability to perform certain tasks to others, and to offer, at the same time to follow the person's instructions.
Remuneration
Remuneration is usually a payment of money, or other allowances. (Under general law, payments can be made in kind.)
Payments can be made monthly, weekly, daily or even in irregular cash payments. The general law does not specify what form of payment should be taken.
The Labor Relations Act of 1995 contains the definition of remuneration under the law in section 213: "any payment in the form of money or goods, or both in money and in kind, made or paid to any person in return for the person who works for others, including the state. "
The contract may state that remuneration is "normal tariff for certain types of work," or specified amount or only "minimum wage."
General law does not indicate a minimum wage; this is usually set by the collective bargaining councils and industry-specific.
Reciprocity
A work contract is a reciprocal contract. This means that one promise is made in exchange for another, and one obligation takes place in exchange for another. Employees work in return for rewards; the employer rewards the employee in return for an employee's offer to put his or her workforce at disposal and under the control of the employer.
Summary
To summarize, the essential elements of the employment contract are as follows:
- This is a voluntary agreement.
- There are two lawyers.
- Employees agree to perform certain or implied tasks for the employer.
- There is an unspecified or determined period.
- Employers agree to pay fixed or uncertain remuneration to employees.
- The employer has the right (eligible) to govern the employee in the manner in which he or she performs the duties.
Task
The working relationship begins only when the parties conclude the service contract. Prior to this, no party has the right to others; they are just a prospective employee and prospective employer.
There are, however, two legal exceptions to the principle that employers have no obligation to job applicants:
- The EEA prohibits direct or indirect discrimination against employees or job applicants based on race, color, sex, gender, religion, political opinion, ethnic or social origin, sexual orientation, age, disability , religion, conscience, beliefs, culture, language, family responsibilities, marital status or other arbitrary lands.
- The Labor Relations Act 1995 and the Basic Provisions of the Manpower Act protect employees and employers from discrimination for exercising the rights granted by Acts.
Employer
In addition to the three principal employers' obligations, discussed below, entrepreneurs are further obliged to award their employees rights in terms of applicable service contracts, mutual agreements and laws, and comply with certain legal obligations imposed in the interests of employees.
Reception to service
The employer's obligation to receive employees to the service is a natural consequence of the employee's obligation to enter and remain in service.
The obligation to receive employees to the service does not mean that employers should always provide employees with jobs to keep them busy, although this general rule is subject to some exceptions: where, for example, payroll is based on the volume of work performed, as in the case of workers or salespeople working on commissions, or where failures to allow employees to work downgraded. The obligation to provide employment may also arise when the employer has contracted to train employees in certain professions or trades, such as in the case of article clerks and apprentices.
The general law allows the suspension of an employee, suspected of being a serious offense, while the matter is being investigated, but the employee is entitled to remuneration during the stay.
Employers may deny their employees access to the workplace, or prevent them from working, in a collective bargaining process. This is known as "lock out", and is an action equivalent to an employee strike. If the exit key is valid - if, that, it is in accordance with the Labor Relations Act of 1995 - the employer is exempt from his obligation to pay the employee who is locked up his wages.
Because the employment contract is private, one company can not force employees to work for another if the first employer has no work for him, unless the first employer's business is transferred as a business continuity.
Payments
This obligation is essential for the employment contract to be assumed by the court, where there is no agreement on remuneration, whether the contract is not a contract of employment, or otherwise implied by the parties intended for the payment of a reasonable amount according to custom and industry practices and locality.
The obligation to pay, and the right equivalent to the remuneration, does not arise from the actual performance of the work, but of the service tender.
It has become a widespread practice for entrepreneurs to make "remuneration packages" for their employees who are paid higher in an effective way of taxing, by substituting benefits (such as housing allowances and cars) for a cash component of salary.
Periodicity of payment depends on the agreement or habits of the parties.
An employer may not unilaterally reduce any amount of the payer's entitlement to an employee.
If the contract is terminated as soon as possible for a good cause, the employer must pay the employee for the services provided on the day of dismissal. The same principle applies when employees leave the medium term before the expiry of a fixed term contract or without proper notice.
Safe and healthy working conditions
Under general law, employers are required to provide their employees with safe and healthy working conditions.
The scope of this task extends to provide the right machinery and equipment, well-trained and competent supervisory staff, and a secure working system.
If an employer fails to fulfill this obligation, the affected employee does not violate the contract if they refuse to work until the dangerous situation is corrected.
Under general law, employees should rely on offenses if the employer does not ensure that working conditions are safe and sound, but this is deemed inappropriate, and the Legislature intervenes. This situation is now governed by the Occupational Health and Safety Act, which imposes strict obligations on employers, and states how much should be paid to employees if an accident occurs.
Remedies
If the offense is material, the employee may claim the damage. Provided that it is a material offense, employees may also cancel the employment contract.
Employees can also claim certain performance. This was rarely given in the past but is now considered an option.
Finally, employees may refuse to work, withhold work until the contract is made.
Employee
Sign in and stay in service
The principal obligation of employees under contract is to place his personal services at the disposal of his employer.
Service auctions are a prerequisite and a corollary of employee's right to claim payment of wages: "not working, no pay." The reverse is also true: "no pay, no job," so unpaid employees may legitimately refuse to work without breaking their contract.
If a number of workers are involved in terminating collective work for the purpose of obtaining some concessions from their employer, they are considered striking. Under general law, striking workers do not have to be paid. The general law also allows employers to briefly dismiss striking employees, but this has been amended by the Labor Relations Act of 1995.
Subject to the right to take paid leave as agreed or given by law, once the employee has entered the service, they remain obligated to provide the service until the employment contract expires.
If an employee fails to provide service (with desertion, absenteeism, absenteeism, timeliness, etc.), the Employer is entitled to deduct from the employee's salary an amount proportionate to the absence.
Reasonable efficiency
Employees are perceived by law to guarantee implicitly that they are capable of performing the tasks they agree to do, and that they will implement them with reasonable efficiency.
When an employer seeks assurances about employee competence before bringing them to service, employees are bound by any representation they may make, whether the competence profession is made by the employee itself, or in testimony that they know.
Employee competency standards are entitled to expect their employees to depend on the capacity in which employees are involved and the status and seniority given to them.
The test for a competency standard is that people are comparable to the employee concerned, taking into account the specific training, experience and claims that employees may have associated with their competence.
When an employee has guaranteed that he has a certain level of skill, he must fulfill that representation.
Promoting business interests of entrepreneurs
Employees are required to devote their energy and skills to advance their employer's business interests. They should devote all their normal hours of work to the employer's business; they may not, without the employer's consent, simultaneously work for another employer during the hours they contractually require to meet the needs of their employer.
These tasks arise because the relationship between the parties is fiduciary: Employees should not place themselves in a position where their interests conflict with those of their employers and should not, by exercising their power from the agent, obtaining interests or benefits without to the knowledge of their employer.
Employee Interests must be bonafide : They may not work for other employers if their business interests conflict with the interests of the main employer.
In the absence of conflicting provisions in the contract, nothing prevents employees from holding two compatible jobs, provided that the second is not done during the hours they are required to devote for the first job. Contracting provisions restrict employee moonlighting activities, however, are allowed.
In addition, employees can not compete with their employer's business for their own accounts.
Respect and compliance
Respect and obedience are regarded as the implied task of every employee. The absence of the former makes interpersonal relationships between employers and employees unbearable; rejection of the latter undermines the employer's right to decide how his employees will work.
The Court requires all employees to show proper respect and respect to their employer, and to comply with the reasonable and legal instructions of their employer.
Respect, being a disposition, is a difficult quality to pinpoint. This should not be equated with respect in a manner compatible with a subordinate's position in which the employee by definition stands vis-ÃÆ'-vis of the employer.
Sometimes failure to salute bosses or superiors will not place employees in violation of their obligations to show respect. Disrespect should be disgusting if it is to justify termination of employment, or more often to indicate that the employee has rejected the legitimate authority of the employer's employer, or that it has made the continuation of the employment relationship "unbearable."
Each case must be considered on its own merits to determine whether this conclusion can be drawn.
Except for very dirty filthiness, the right sanction is a written warning in the first example.
Obligations of employees to comply only apply to work-related orders and generally during business hours and for legitimate and reasonable orders.
Employees also have the right to disobey instructions that will make them exposed to personal hazards that are usually unrelated to the performance of their duties.
Orders violate the law if it requires employees to commit illegal actions or do something that is outside the scope of contractual relationships.
Avoiding errors in general
Any error that makes the continuation of the employment relationship unenforceable or unenforceable, or undermines the trust and trust between the employer and the employee, is deemed sufficient to justify dismissal, provided it is serious enough to offset the interests which the court attaches to the employee's job security. Examples of violations are defiance, theft, fraud.
With regard to errors made before the formation of behavior (such as serious crime commissions), the general principle is that there is no obligation on prospective employees to disclose prejudicial information from their past to their future employers unless they are specifically asked to do so.
However, obligations can arise, if no disclosure is material and is a fraud. Whether an employee can be dismissed for not disclosing it depends on whether the employment relationship is reasonably sustainable after the discovery of past mistakes.
Troubleshoot
The employer can only fire the employee quickly due to errors, disabilities or operational requirements. If the damage occurs as a result of a breach of any of these tasks, the company may claim compensation.
Basic work rights
Basic Terms of Employment Law is intended for low-income people: those earning less than R193,805 per year.
No matter what the contract itself says, the Basic Rules of Employment Act apply as a minimum standard to be achieved.
The Labor Relations Act 1995 relates to strikes and unions and the like; The Basic Provisions of the Employment Act are a return option for vulnerable workers who can not union for various reasons, such as the kind of work they do. Domestic and agricultural workers are a relevant example in the South African context.
The purpose of the Working Basic Act is to promote economic development by providing basic conditions of employment.
The Basic Provisions of the Employment Act also contain employee definitions, so the issues discussed above are also relevant here. The Minister is empowered to extend the provisions of the Basic Employment Act for non-employees under certain circumstances. In fact, therefore, if domestic worker is not considered an employee under the Basic Conditions of Labor Law, the Minister may extend the terms to her for her own protection.
Minimum Wage
The employer does not have the wisdom to pay less than the minimum wage. As mentioned above, the Working Procedure Act provides the minimum standards to be achieved; employers must, at least, comply with the Working Procedures Act.
Minimum wages are the result of negotiating boards in most circumstances, but some professions do not have bargaining boards. Their minimum wages are therefore regulated by the Basic Provisions of the Manpower Act.
Clock
A maximum of 45 hours per week is allowed to work. These terms (regarding hours) do not apply to the following persons:
- someone who earns more than R205 433.30 per year; or
- someone in a senior management position; or
- Sales staff, employees are required to travel in carrying out their duties, and those who can determine their own hours of work.
Overtime
Overtime allowed under voluntary agreements.
Payment for overtime is 1 ½ times normal wage.
Sunday
The payment to work on Sundays is two times the normal wage if the employee is not expected in the case of his contract to work on Sundays, but if the employee is expected to work on a Sunday in the case of his contract, the employee must receive 1.5 times the normal wage.
Public holidays
A worker is entitled to pay double only if it is specified in the employee contract that he is expected to work on a public holiday.
Feeding interval
An employee is entitled to one hour off for every 5 hours of work.
Weekly rest period
An employee is entitled to 36 consecutive hours. Issues such as night work, holidays and holidays are also discussed.
Sick leave
An employee is entitled to a 6-week leave during the three-year period, which is often interpreted as a day for 26 working days.
Maternity leave
An employee is entitled to four months of total, leave must commence at least 4 weeks before the expected date of birth, and ends at least 6 weeks after the expected date of birth. However, this does not specify that this is paid leave. In the case of the Unemployment Insurance Fund, when a woman is on maternity leave, she is entitled to the benefit of the Unemployment Insurance Fund for half the time it spends. Usually the employer will pay the other half, but this is not required in the Working Basic Act.
Family escape leaving
If the employee has worked for more than four months, he is entitled to 3 days of family responsibilities, as in the case where there has been a death in his family.
Remuneration
Employers should keep records of working hours and wages for each employee for at least three years.
Employees must be paid in South African currency at work (unless this is changed in the contract).
Employers can not deduct money from employees unless written written consent is obtained.
Regarding severance pay, in case of retrenchment or dismissal for operational reasons, the employee is entitled to pay one week for each year of work.
Variations
The Basic Provisions of the Manpower Law are the minimum standards that the employer desperately needs. Entrepreneurs can award more, but never less, than what is set.
If the employer gives more than the minimum, he may be locked to always give more, because he must then comply with the required annual increase, based on the percentage of the current payment.
Employer may change the terms of the contract by
- individual agreements; or
- mutual agreement by industry.
Unfair work practices
In the past, the concept of "unfair labor practices" was broadly defined. The Industrial Court (a specialist court that exercises jurisdiction over alleged unfair labor practices) takes on some innovative approaches. The court formulated a set of rules to regulate unfair dismissal. These rules are now listed in Chapter VIII of the 1995 Labor Relations Act and in the Code of Good Practice: Dismissal.
Work relationships have three stages:
- early, when the employee is a job applicant;
- center, which continues as long as the relationship continues; and
- the final section, which may be termination, resignation, or retirement.
Unjust behavior by the employer at the beginning of the relationship usually takes the form of unfair discrimination. Unjust behavior by employers at the end of the relationship is usually an unfair dismissal. Unjust behavior by the employer during the relationship subsistence will take the form of unfair work practices.
Section 186 (2) of the Labor Relations Act 1995 defines "unfair labor practices" as "unfair acts or omissions arising between employers and employees," and involves
- unfair behavior by an employer related to promotion, demotion, probation or employee training, or related to the provision of benefits to employees;
- an unfair suspension of an employee, or other disciplinary action that is not trivial dismissal;
- failure or refusal by an employer to reinstate or reinstate a former employee in any contract; and
- Employment losses, in addition to dismissals, are contrary to the Protected Disclosure Act, as employees have created the protected disclosures defined in the Act.
Protection coverage
The first part of section 186 (2) speaks of unjust work practices because of any unfair acts or omissions arising between employers and employees. Only those who have worked, therefore, enjoy protection against unfair labor practices; only people, that is, are included in the definition of "employee."
This concept may also include former employees, if the employer refuses or fails to reemploy the former employee in terms of the agreement, for example.
Full list
Because the use of the word "involves," the court has stated that the list of unfair labor practices, listed in section 186 (2), is complete. Therefore the definition of "unfair labor practices" in the Labor Relations Act is now much narrower than its predecessor, the Labor Relations Act of 1956. This is because concepts such as unjust discrimination have been removed from ambit and included in the EEA..
The fact that this list deeply poses three problems, because the Constitution explicitly gives everyone a right to fair labor practices:
- whether the constraints of constitutional rights are justified, which according to the general consensus are;
- the actual interpretation of this definition; and
- the freedom of employees to rely directly on the Constitution, which is contrary to the current Labor Relations Act.
With regard to the interpretation of this definition, the general principle is that laws restricting constitutional rights should be interpreted in such a way as to minimize restrictions. Definitions must be interpreted so as to provide maximum protection.
With regard to the freedom to rely directly on the Constitution, employees may rely directly on the Constitution to oppose practices not covered by the 1995 Labor Relations Act, such as transfers. This problem, however, remains to be developed by the courts.
Promotion and demotion
Basic principles
Many cases have been referred to the Commission for Conciliation, Mediation and Arbitration and courts in this regard. Of these cases, three major problems arise:
- the meaning of "promotion" and "demotion;"
- the injustice of the employer's behavior; and
- treatment.
Meaning
Employers typically use one of two systems to promote employees:
- developmental level, where employees are regularly evaluated and advanced to a higher level within the parameters of the work; and
- an application-for-vacancy system, where vacancies are advertised, and current employees and external applicants are invited to post.
The second system is problematic. The Conciliation, Mediation and Arbitration Commission and the court have stated that it is not a promotion at all, since the employee is none other than a job applicant.
First, to form a dispute concerning promotion or demotion, the aggrieved individual must become an employee of the company in which he wishes to take action.
Secondly, we must compare the jobs currently held by the employee with the work being applied.
Factors to be taken into account include differences in the level of remuneration, benefits, status, level of responsibility or authority or power, and the level of job security.
At Mashegoane v Northern University , the dispute is whether the university's refusal to appoint a lecturer to a Dean's faculty position involves a promotion. The law regulating the university provided that the Dean is appointed by the Senate acts upon the recommendation of the Faculty Council. The university believes
- that the Dean's position is not being applied; and
- that it is not a promotion; but
- that it was a nomination.
After the court determines that the applicant is the current employee, it is found that his salary will remain the same, but that he will receive the Dean's allowance and will own the car he owns; this is the only benefit. His status will be much improved. He will have more responsibility, authority and strength. Given this, the appointment is a promotion.
In Nawa v Department of Trade and Industry , however, the court stated that there was no promotion because there was no intention to change the terms and conditions of the existing work, despite intent to change the way in which the work was done.
Generally the Commission for Conciliation, Mediation and Arbitration and other institutions quickly assume that there is indeed promotion or demotion.
Disputes about Promotion and Impairment typically involve employees who are denied higher level posts in the employer's organizational structure or disempowered status or benefits.
Injustice
Generally, injustice implies a failure to meet objective standards, and includes arbitrary, inconsequential or inconsistent behavior, regardless of whether it is intentional or negligent.
Mere unhappiness on the part of employees is not fair.
With regard to substantive justice, it may be difficult to justify the choice of a particular candidate in appropriate terms. An employer is free to consider subjective factors, such as performance at the time of the interview, when considering a promise or promotion. However, employers must keep giving reasons.
With regard to procedural justice, employers must follow their own procedures: If there is a practice of advertising a post, it may not, without good reason, depart from that policy. An employee can challenge the composition and competence of the selection panel.
Examples of injustices include the bias, nepotism, and false exemptions of an employee from a short list by mistake by an employer or selection committee.
Troubleshoot
The relief shall be determined on terms which the Commissioner considers reasonable.
Assistance may be in the form of a declaration order, a protective promotion, re-submit it to the employer for reconsideration, and return to the previous position (in case of demotion).
Trial
Guidelines may be collected from the rules governing the obligations of employers before a fair decision to be dismissed on the basis of poor performance is achieved, as well as from the Code of Good Practice: Dismissal.
In this context, unfair behavior may include failure to properly inform employees of required performance standards, and failure by employers to provide employees with reasonable guidance, evaluation, training, counseling and instruction.
Terms of benefit
An employer may engage in unfair labor practices through unfair behavior related to the provision of benefits.
This provision, contained in section 186 (2) (a) of the Labor Relations Act 1995, does not appear to be problematic, but has been covered by considerable uncertainty over the interpretation of "benefits."
The initial decision of the Conciliation, Mediation, and Arbitration Commission gave broad meaning to the term "benefits."
The problem is complicated by article 65 (1) (c) of the Labor Relations Act of 1995, stating that employees should not strike over issues that may be referred to arbitration in the Labor Relations Act of 1995. Disputes over "benefits" may be referred to arbitration. If "benefits" are given a broad meaning, and taken to include remuneration, this means that employees should not strike wages and salaries.
There are two approaches to resolving interpretive issues:
- focus on the meaning of the word "benefit," and try to define it; or
- focus on the nature of the dispute itself, keeping in mind the distinction between rights disputes and interest disputes.
Generally the court takes a narrow approach to interpretation. They apply a combination of the above two approaches. It has been held that the term "benefits" in the definition of unfair practice only includes the benefits of exit contract and ex lege: the benefits already in the matter of contract
Source of the article : Wikipedia
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