Automatically unfair dismissal
Background In the recent Labour Court matter, heard on 17/05/2019, Jacobson v Vitalab (LC) (unreported case no JS 1042/12, 25/05/19), Van Niekerk J dealt with the interpretation and the ambit of section 187 (1)(c) of the Labour Relations Act 66 of 1995 (LRA). The matter at hand was if an individual employee can successfully rely on section 187 (1)(c) to claim that his dismissal was automatically unfair. Section 187(1)(c) was amended in 2014 to provide that a dismissal is automatically...
RECLAIMING SHARES OF BLACK SHAREHOLDERS AFTER THEY HAVE “SERVED THEIR PURPOSE”
In the case of Peel & Others / Hamon J & C Engineering (Pty) Ltd & Others (2012/00994) the South Gauteng High Court dealt with this issue amongst others. For our purpose, we will only deal with the above issue. Summary of facts: In order to improve its BEE scorecard to obtain a government tender, Hamon & Cie (“the company”) entered into a Shareholders Agreement with two black female employees.In terms of the Shareholders Agreement 13% shares were sold to each of the two...
The legal status of evidence obtained from Entrapment
Misconduct such as theft is by its very nature not easy for employers to identify, simply because it is not intended for them to find out. It is, therefore, common practice for employers to resort to trapping the employees by for instance bugging their phones, installing hidden cameras or utilizing any other method. This is an aspect that affects us all and maybe we should discuss the legal status of evidence obtained from Entrapment. Often employers get confused between the method of trapping...
The Future of Broad-Based Ownership Schemes and Employee Share Ownership Programmes in South Africa
During April 2019 the B-BBEE Commission declared that a majority of transactions involving broad-based trusts deviates from the law and do not constitute genuine and effective black ownership. These transactions involving trusts, BBOS and ESOPs did not meet the rules set in Statement 100 Annexes (B)-(D), and thus cannot be recognised for ownership points. The commission has informed those companies not complying to rectify their ownership structures and undergo a re-evaluation on...
General requirements for a fair dismissal based on misconduct.
Schedule 8 Item 7 of the Code of Good Practice: Dismissal (Labour Relations Act) states that to determine whether a dismissal is fair, the following needs to be considered: If the employee contravened a rule or standard regulating conduct in or of relevance to the workplace and;If a rule or standard was contravened: whether that rule or standard was valid or reasonable;the employee was aware or could reasonably be expected to have been aware of the rule or standard;the rule or standard has...
Submitting false documentation
Submitting false documentation is a serious offence which warrants a hearing, sadly employers are often lost when trying to establish if medical certificates are valid and this misconduct is often overlooked. Both section 23 of the Basic Conditions of Employment Act (BCEA) and Rule 16 of the Ethical Guidelines from the Health Professionals Council of South Africa (HPCSA) set out requirements for medical certificates. Rule 16 states: (1) A practitioner shall only grant a certificate of illness...
VALIDITY OF B-BBEE CERTIFICATES
The sub-element Preferential Procurement is important as points are awarded based on procuring from companies having good B-BBEE ratings. On most scorecards, it is noticeable that a large number of points are allocated to the sub-element Preferential Procurement. Therefore, the person/s appointed to collect suppliers B-BBEE certificates and/or sworn affidavits must ensure that the information received is correct. Below are some guidelines to assist your company when claiming points for the...
Trade Coupons and similar promotions
In terms of the Consumer Protection Act, a promotional offer means an offer or promise expressed in any manner of any prize, reward, gift, free goods or services, price reduction or concession, enhancement of quality of quality of goods or services, irrespective of whether or not acceptance of the offer is conditional on the offeree entering into any other transaction. It should be noted that a person must not make a promotional offer with the intention of not fulfilling it at all, or,...
‘Big Data’ explained
Big Data can be described as “representing the information assets characterized by such a high volume, velocity and variety to require specific technology and analytical methods for its transformation into value.” If we take Big Data and combine it with artificial intelligence and facial recognition, it has the ability to intrude on people’s lives on a considerable scale. One’s right to privacy has become a pressing human rights issue worldwide. Social media is being utilized by industries and...
The Fearful Witness who holds crucial evidence
A guide to in-camera proceedings. Intimidation and threats are common in the industrial sphere in South Africa. These actions often come about after serious misconduct is alleged to have been committed - dishonesty, unprotected strikes etc. Employees not only have to work in close conjunction with one another but often live close to each other and use the same transport home. Therefore, it is understandable when an employee is too frightened to testify in a hearing. An Employer cannot compel a...