Retirement age for employees is a complex topic for employers to navigate. It is increasingly the norm for employees to want to work beyond retirement age due to financial concerns, the desire to remain productive, the increase in remote work possibilities and rising longevity. On the other hand, employers often prefer the older employees to make room for younger employees. In South Africa, we have three acts that are relevant to retirement. These are the Basic Conditions of Employment Act...

In the fast-paced world of employment law, the Double Jeopardy principle again took center stage in the matter of SAMWU obo AN Malatsi v Gert Sibande District Municipality. The principle of Double Jeopardy prevents employers from subjecting employees to multiple punishments for the same offence, thereby ensuring fairness and protecting employees against undue harassment. The abovementioned case is a crucial reminder for employers about their rights to institute disciplinary action, especially...

In our interconnected world, platforms like Facebook, Twitter, WhatsApp, and LinkedIn often blur the lines between our personal and professional lives. What employees do in their personal time is generally off-limits to employer intervention. But there is a limit. Where an employee's Social Media posts impact the employment relationship detrimentally, the employer may act. This is especially the case, where the posts could be perceived as Hate Speech in South Africa's historical and political...

In a High Court judgment released on 25 October, the court found section 25 of the Basic Conditions of Employment Act (‘the BCEA’) that regulates maternity leave unconstitutional. While the validity finding has been suspended for two years to give Parliament time to amend the BCEA, the court introduced interim relief that comes down to a temporary amendment of the laws regulating maternity leave in South Africa. The separation of powers is a vital democratic principle enshrined in our...

In the realm of employment, there has always been a debate about when it's appropriate to terminate an employee for a first instance of negligence. Allow us to simplify this complex topic for you. In determining the justification for dismissal, specific criteria must be met: Loss or Damage: The employee's actions should have resulted in an actual, tangible loss or damage to the employer, not just a potential one.Foreseeability: The employee should have reasonably foreseen that their...

It is common practice for employers to include restraint of trade clauses in employment contracts to prevent employees who resign from competing with the business of their previous employer. A second common practice is settling labour disputes, such as misconduct disputes, through mutual separation agreements. These agreements terminate the employment relationship between the parties voluntarily and usually contain a clause confirming that the agreement is a full and final settlement of all...

Processing of employees' personal information is a necessary function in every workplace. POPIA prescribes how companies should collect, store, and share such information to protect employees' privacy rights. Here are some fundamental POPIA principles to keep in mind: Be clear about why you need the information (‘the purpose’).Only collect the minimum personal information necessary for the intended purpose.Implement adequate technical and organisational security measures to safeguard...

As an employer, maintaining a harmonious and productive workplace is essential for the success of your business. Unfortunately, there may be times when misconduct occurs, and you find yourself in the dark about who is responsible. This is where polygraph testing can become a potentially valuable tool for employers. Polygraphs can be used during the investigation phase to assist the employer in identifying the misbehaving employee. They may also be used during the subsequent disciplinary...

Several workplace misconducts are also criminal acts. Two of the most apparent ones are theft and assault. When an employee is accused of one of these misconducts, it is common for employers to also lay criminal charges against the employee. This can create a dilemma for the employee, who may be concerned about incriminating themselves in the criminal case by giving evidence during the disciplinary hearing. The result is that employees often insist that workplace discipline be postponed until...

Business owners often struggle with shrinkage, also known as stock loss.  Although shrinkage itself is easy to prove, it is usually difficult to conclusively prove the cause of the shrinkage. Due to this difficulty in proving the guilt of individual employees, employers sometimes charge a group of employees with team misconduct.  With team misconduct, the employer alleges that the blame for the misconduct is shared amongst a group of employees. The legal justification for this...