Quarter 3 2021


RESTRAINTS OF TRADE IN LIGHT OF RECENT JUDGMENTS Employment Law - Feature September 2021

There is a common assumption among employees (and many employers) that restraint of trade covenants are invalid and unenforceable, especially in light of the right for South African citizens to choose their trade, occupation or profession freely, as enshrined in the Constitution of the Republic of South Africa, 1996. But this assumption is incorrect, as the Appellate Division (now the Supreme Court of Appeal) held, in the landmark case of Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) that covenants in restraint of trade are valid and enforceable.

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RESTRAINTS REMAIN VALID DURING THE PANDEMIC Employment Law - Feature September 2021

On 20 May 2021, in the case of Bulldog Abrasives Southern Africa (Pty) Ltd v Davie and Another (J123/21) [2021] ZALCJHB 58, the Labour Court found that while the COVID-19 pandemic has had severe and, in some cases, irreversible effects on the economy of the country, employees cannot opportunistically use it as a reason to breach restraint of trade agreements. The pandemic is not a vis major that renders contractual performance objectively impossible.

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‘YOU’RE FIRED’: TERMINATING A FOOTBALL COACH’S CONTRACT Employment Law - Feature September 2021

The latter part of the 2020/2021 football season saw the 'sacking' of José Mourinho [Tottenham Hotspur FC], Zinedine Zidane [Real Madrid FC] and, closer to home, Gavin Hunt [Kaizer Chiefs FC]. The termination of these coaches' contracts demonstrates the highly competitive industry in which football coaches operate.

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WHO WILL WATCH THE WATCHERS?1 Employment Law - Feature September 2021

Employers and employees rely on employment tribunal commissioners to discern between appropriate and inappropriate conduct, and to remedy the incorrect classification and consequences attached to employee conduct. If an employee is charged with misconduct, the commission is tasked with considering the facts afresh, and determining the appropriate sanction in deserving cases. Faith in the statutory dispute resolution system hinges on the sound exercise of judgement by commissioners every day. Our legal system even tolerates the fact that a commissioner may occasionally get it wrong. But what happens when the commissioner is the one engaging in misconduct?

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EMPLOYMENT POLICIES: MUST THEY BE REASONABLE, LAWFUL AND FAIR? Employment Law - Feature September 2021

The purpose of employment policies are for employers to establish and communicate to employees acceptable, appropriate, ethical and constructive conduct in the workplace. Well-written, clear policies, supported by effective disciplinary procedures, ensure sound governance, risk and compliance control measures and help reduce the likelihood of misconduct, harassment, discrimination and unfair labour practises in the workplace. Employment policies thus serve as a set of rules for labour relations. But what if the policy is not reasonable, lawful or fair?

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UNDER PRESSURE – COMMUNITY DEMANDS AND EMPLOYER RESPONSES Employment Law - Feature September 2021

The Labour Relations Act (66 of 1995) (the LRA), as amended, contemplates a specific model of collective engagement between employers and employees. At its most fundamental level, the LRA creates a framework for the workplace to be organised by unions which represent employees in the workplace, in relation to various issues which are, more often than not, matters of mutual interest.

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COMMON PURPOSE, DERIVATIVE MISCONDUCT & DISMISSAL AFTER DUNLOP Employment Law - Feature September 2021

Recently, in NUMSA obo Nganezi & Others v Dunlop Mixing and Technical Services (Pty) Ltd & Others (2019) 40 ILJ 1957 (CC) (Dunlop), the Constitutional Court clarified the limits of the doctrine of derivative misconduct, as it was understood at the time.The Court considered the vexed question of determining the individual culpability of an employee in the context of collective misconduct and said:

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LOOTING AND CIVIL UNREST: THE DANGER OF ACTING WITH A COMMON PURPOSE Employment Law - Feature September 2021

The arrest of former State President Jacob Zuma sparked civil unrest across the country, particularly in KwaZulu-Natal and Gauteng. The vandalism and looting have had devastating effects on numerous businesses.

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VIOLENCE IN STRIKE ACTION AND THE DOCTRINE OF COMMON PURPOSE Employment Law - Feature September 2021

It is trite that employers may dismiss employees who commit violence and damage property during strike action. In some cases, especially where there is a large number of employees involved in the strike action, the difficulty that employers face is identifying the specific employees involved.

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STICKS AND STONES (AND GOLF CLUBS) WILL GET YOU FIRED Employment Law - Feature September 2021

Striking employees often, and regrettably, have in their possession sticks and other objects which may be used as weapons while on the picket line. Unions routinely contend that these objects do not constitute 'weapons', and that the strikers have a 'right', rooted primarily in their cultural beliefs, to carry a stick. While we are, of course, products of our culture and environment, the submission ignores the fact that a workplace should be free from violence and intimidation.

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H1 snapshot M&A Activity September 2021

The total value of M&A activity for H1 2021 (excluding failed deals) was R175,7bn from 213 deals, a significant increase from the previous year's figures of R108bn off 157 deals. A closer look shows that the greater number of deals for the period fell in the 'over R50m, under R200m' value category, though the total value of these deals represents just over 2% of the aggregate value for the period. Of the 213 deals executed in H1 by companies listed on one of the local stock exchanges, 186 of these involved companies with primary listings. Of these 186 deals, 36 were cross border transactions by SA domiciled companies with Africa and Europe being the top two regions. Drilling down further, 26% of targets were in the property sector, followed by technology 15% and financial services 11%.

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