A practical guide to: Handling damages caused by employees
Employers are sometimes faced with a situation were an employee caused damage to the employer as a result of their actions or omissions. Employers must decide to either impose a warning or deduct the cost of the damages from the employee’s salary. The question now arises whether you can issue a warning and deduct the damages - or whether this amounts to double jeopardy. What is double jeopardy? Double jeopardy occurs where an employee is punished twice for the same incident of misconduct or...
Data breaches and the notification thereof
With the Protection of Personal Information Act (POPI) created to regulate the protection of personal information, an enormous impact is expected as South African businesses will soon be legally obligated to notify of any data breaches. What is expected from businesses faced with data breaches? The responsible party will have to notify the Information Regulator, as well as the data subject, should there be reasonable grounds to believe that the personal information of a data subject has been...
Is an employer obliged to pay bonuses to employees?
The question of “Why didn’t I get a bonus?” is one that crosses the mind of many employees, as they often feel that they have a right to a bonus. The South African Labour Law is silent on the issue of bonuses with the result that the payment or non-payment of bonuses is left to the discretion of the employer. Certain bargaining council collective agreements make provision for the payment of bonuses and are thus binding on the employers of those sectors. The general rule of thumb is that if an...
Back to basics with Broad-Based Black Economic Empowerment
South Africa was engaged in a racially segregated system called Apartheid from 1948 until 1994, where one’s race determined social, economic and political advantages and/ or disadvantages. In 1994, the first democratic government was elected in South Africa. This government implemented Broad-Based Black Econoic Empowerment (B-BBEE) in 2003/2004 as a racially selective program initiated to empower those previously disadvantaged groups. The B-BBEE Codes of Good Practice perpetuate in 2007 as an...
The Employer’s Guide to: Annual Leave
The Basic Conditions of Employment Act 75/1997 (BCEA) states that the provisions for annual leave do not apply in the following instances; Employees who work less than 24 hours per month for an employer. Leave granted to employees in excess of the entitlement allowed in terms of the BCEA. Calculation of annual leave The BCEA stipulates that employers must grant annual leave of at least 21 consecutive calendar days (Section 20(2)(a)). Employees working 5 days in a week should get 15 working...
Is the GDPR applicable to my business?
The General Data Protection Regulation (GDPR) was enforced on 25 May 2018 by the European Union Law and was drafted to coordinate any previous and or current legislation in one document. This means that every resident of the European Union’s (EU) right to data privacy are protected under this regulations. Any law or regulation approved by the EU are in general applicable within the member states of the European Union. It must be emphasized that the GDPR is not a South African Law and that the...
When should my employees retire?
There is no compulsory retirement age for employees in South Africa therefore employees may continue working until they are incapable of performing their job. In these circumstances the employer would need to follow the incapacity procedure as set out in Schedule 8 of the Labour Relations Act (LRA). Section 187(1)(f) of the LRA declares a dismissal of an employee based on their age automatically unfair. The Labour Court can award up to 24 months of the employee’s remuneration as compensation,...
Supplier Development and the Amended Construction Codes
The Amended Construction Sector Codes have brought about significant changes to the Supplier Development element. Generic Enterprises now have to ensure that their assistance meets the requirements of a compliant Supplier Development programme. A Generic Enterprise is regarded as the following: Contractors - revenue above R50 million; Built Environmental Professional (BEPs) - revenue above R25 million. The requirements for a Supplier Development programme are : The measured entity may not hold...
Dismissal for insubordination – a case study
The contract of employment is a reciprocal contract. This means that one promise is made in exchange for another, and one obligation is incurred in exchange for the other. The employee works in exchange for remuneration; the employer remunerates the employee in exchange for the employee offering to place his labour potential at the disposal and under the control of the employer. A clarifying case: This was the underlying principle in the Labour Appeal Court (LAC) matter between Barry Jorgensen...
Information Leaks – what does the law say?
Much has been written about the Protection of Personal Information Act (POPI), its effect on direct marketing and the consequences of unlawful use and processing by responsible parties. Despite this, in the case of MiWay v King Goodwill Zwelithini, MiWay found itself under the scrutiny of the Information Regulator when a telephonic conversation between one of its sales agents and King Goodwill Zwelithini was leaked on social media. The telephone call in question was made by the sales agent to...