November 2020


Introduction - Employment Law Feature November 2020 Employment Law - Feature November 2020

There have been many comments made that this is an exciting time in which to be involved in Employment Law. COVID-19 brought in its wake considerable change and challenges previously not considered.


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RUMOUR HAS IT: WORKPLACE GOSSIP, DISCRIMINATION AND SEXIST STEREOTYPING Employment Law - Feature November 2020

Office gossip is a common occurrence. Employers may prefer to ignore rumours or pass them off as mere lowly tales, for fear that recognising their existence would be improper in a professional environment. This approach is not without its flaws, particularly where these rumours amount to discrimination and victims are left without relief.

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RESIGNING AFTER DISCIPLINARY ACTION BUT BEFORE SANCTION – WHAT IS THE LEGAL EFFECT? Employment Law - Feature November 2020

In a recent judgment, Mthobisi Mthimkhulu v Standard Bank of South Africa (J928/20) (18 September 2020), the Labour Court considered whether an employee, who has been found guilty of serious misconduct, can avoid the ultimate sanction of dismissal by resigning before the employer imposes the sanction.

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A COLLISION COURSE OR A PARALLEL SPHERE: DISSECTION THE INTERSECTION BETWEEN LABOUR, COMPETITION AND BUSINESS RESCUE Employment Law - Feature November 2020

In a well-considered piece, Professor Stefan van Eck analyses existing labour laws under the topic: "Constitutionalisation of South African Labour Law: An Experiment in the Making". Professor van Eck notes,"although this state of affairs [the rights of employees] may not necessarily be evident in practice, workers' human rights were for the first time entrenched in the South African Constitution 16 [at the time] years ago: a new set of labour laws that give effect to International Labour Organisation (ILO) principles were enacted between 1996 and 1998 and local labour law reforms during 2002 witnessed further strengthening of worker's rights in the statute books. In theory also, workers' rights have been promoted on a regional level in the Southern African Development Community's (SADC)...".

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KEY CHANGES TO THE ‘CONSOLIDATED DIRECTION ON OCCUPATIONAL HEALTH AND SAFETY MEASURES IN CERTAIN WORKPLACES’ Employment Law - Feature November 2020

On 1 October, the Minister of Employment and Labour published revised Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces for purposes of guiding employers in handling COVID-19 in the workplace.

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BLOWING THE WHISTLE…WITHOUT BLOWING YOUR REPUTATION Employment Law - Feature November 2020

As organisations face added financial pressures in the wake of the recent global economic downturn, stakeholders need to remain vigilant in their plight against fraud and corruption.

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SECTION 4 OF RICA: THE BIG BROTHER CONSTANT AND THE ADMISSIBILITY OF SECRET RECORDINGS Employment Law - Feature November 2020

COVID-19 has definitively altered the workplace and has accelerated a changing work order. Never before have employers had to manage their work- places as delicately as under the current circumstances, which have forced the world of work to become largely remote.

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RETRENCHMENTS, RESTRAINTS OF TRADE AND COVID-19: TERMINATION OF EMPLOY- MENT FOR “ANY REASON WHATSOEVER”? Employment Law - Feature November 2020

The negative economic impact caused by the COVID-19 pandemic has resulted in many employers embarking on retrenchment proceedings.

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WHAT WILL WE TAKE WITH US? Employment Law - Feature November 2020

An odd question I heard someone ask this week was "if your house was on fire, and all people and pets were safe, what one possession would you hope could be rescued?"

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CANNABIS IN THE WORKPLACE – MTHEMBU AN UNCERTAIN FIRST STEP Employment Law - Feature November 2020

On 18 September 2018, the Constitutional Court decriminalised private cultivation, possession and use of cannabis in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others as intervening parties, Doctors for Life International Inc as amicus curiae) and related matters 2018 (10) BCLR 1220 (CC). At the time that the judgment was handed down, it seemed unlikely that the workplace would fall within the scope of the judgment and unlikely that any reasonable employee would attempt to consume cannabis while at work. However, contrary to what the judgment contemplated, it happened that the issue of where the workplace falls within the legislation was discussed in a case involving an employee who consumed the drug outside working hours and thereafter reported for work. The Cannabis for Private Purposes Bill is currently going through the legislative process and it is, therefore, a good time to review Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA).

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REFERRING MORE THAN ONE DISPUTE FOR THE SAME SET OF FACTS Employment Law - Feature November 2020

This article discusses the case of Feni v Commission for Conciliation, Mediation and Arbitration and Others (JA30/2019) [2020] ZALAC 24; (2020) 41 ILJ 1899 (LAC).

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APPLICATION OF THE DOCTRINES OF RES JUDICATA AND LIS PENDENS Employment Law - Feature November 2020

The differences between the doctrines of res judicata and lis pendens may seem obvious at first glance. In the context of litigation, we understand the former to mean that an aggrieved party has the proverbial "one bite of the cherry"; in other words, once their matter has been litigated to its conclusion through the relevant forums, the matter cannot thereafter be litigated again. We understand lis pendens to mean that a matter is still being litigated and has not yet reached its conclusion. Again, the distinction appears to be straightforward; however, the Labour Appeal Court recently had to determine the distinction and application of these two stages of litigation in the case of Feni v CCMA [2020] 10 BLLR 1001 (LAC) (Feni case), and, in particular, the purpose of these doctrines in ensuring the expeditious resolution of disputes in labour litigation.

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LEGAL REPRESENTATION IN INTERNAL DISCIPLINARY HEARINGS Employment Law - Feature November 2020

The Labour Relations Act (66 of 1995) (LRA) does not deal expressly with the question of whether legal representation should be allowed during disciplinary hearings. However, Item 4(1) of the Code of Good Practice contained in Schedule 8 of the LRA states that when an employee is charged with misconduct, "[t]he employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee". No mention of legal representation is made in the Code.

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LABOUR APPEAL COURT CLARIFIES THE LINK BETWEEN DEPRESSION AND MISCONDUCT Employment Law - Feature November 2020

Depression in the workplace is becoming more prevalent as high pressure work environments with strict deliverables often cause employees to suffer from fatigue and, ultimately, depression. COVID-19 and working from home has, of course, aggravated the situation, often resulting in low morale and frustration for employees. Employers are frequently unsure how to deal with employees who commit acts of misconduct, or perform poorly in circumstances where their mental health is an area of concern.

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A BRIEF SURVEY OF RECENT IMPORTANT LABOUR LAW CASES, WITHOUT THE LEGALESE! Employment Law - Feature November 2020

There have been a number of highly significant cases in the field of labour law, including a decision from the Constitutional Court (CC), a Labour Appeal Court (LAC) decision and two decisions of the Labour Court (LC), all of which have been issued in the past few months. This article will provide a brief survey of these judgments, including critical comment where appropriate.

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