That Employment Law continues to play an increasingly important role in business is confirmed by the vital information provided by practitioners in this feature. The coronavirus pandemic has changed the way law firms operate globally. Technology has played a pivotal role in enabling some form of normality. High on the list of concerns for all firms must be the health and well-being of their staff. The impact of COVID-19 on not only the physical well-being of staff, but also their mental health, will be a determining factor in both the ethos and success of firms. And what about firms that mandate a return to the office? It is worth taking note of the backlash at investment bank Morgan Stanley; no doubt this, along with comments from others that 'their talent pool was about to get bigger', saw CE James Gorman backtrack and say that around 80% of its employees' work will be done within its offices, and that the bank 'would use COVID-19 as an opportunity to introduce more flexible working'. Other firms say they expect to be able to attract talent from firms that deny attorneys flexibility. For as long as there is uncertainty about COVID-19, and with countries like Germany expecting a fourth wave in September, there is little doubt that its impact will be a factor in future plans globally.
The abuse of leave provisions is a bug bear for all employers. The problems associated with managing employee leave have been exacerbated by the remote working environment, where employers have even less control over the conduct of employees. With the introduction of special leave associated with receiving COVID-19 vaccines or any side effects associated therewith, employers must ensure that the rules pertaining to COVID-19 vaccination leave are clearly communicated to employees in order to avoid any abuse.
The COVID-19 pandemic has forced those interested in labour law in South Africa to reflect on its fundamental principles and their suitability to a post-COVID-19 South African workplace. This reflection comes at a time when questions were already being asked about the suitability and efficacy of these principles, in light of the tragic events at Marikana, rapid technological development, crippling unemployment, little to no economic growth and a general trend towards a "new world of work". This reflection has, in certain instances, morphed into critical scrutiny. Consequently, South African labour law, or at least South Africa's general approach to it, may come out of the COVID-19 pandemic rather different to what it was going in.
Background to the matter
The employee was a member of the South African Police Service (SAPS), employed as a chef at a local police college in Graaff-Reinet. There were two charges against him, namely raping a 16-year-old female at her place of residence, and contravening any prescribed Code of Conduct for the Service or Public Service. The employee was the neighbour of the girl, who lived with her mother. The rape happened outside the employee's working hours.
Some 18 years ago, with the birth of my gorgeous son, I was fortunate to have bosses who gave me the opportunity to work mornings only. On my return to work from maternity leave in September 2003, I started a routine of shutting down my laptop at 13h00 every day, when I would leave the office and metamorphose from a practising lawyer into a mom. My afternoons in the early days of motherhood would be taken up with Moms and Tots, Clamber Club and Monkeynastix. As the kids grew up (my beautiful daughter followed in 2009), I became a mom's taxi, ferrying to and from school, extra curriculars and parties. More recently, I have been enlisted into the circle of swimming moms sitting at endless swimming practices gossiping and time keeping at galas. As part of my mornings-only routine, my laptop would be put in its bag only to come out at the office the next morning, after my first cup of coffee. A warning, I am dangerous without coffee.
More than a year into the COVID-19 pandemic, some employers are still grappling with the idea of remote working. For many employers, this new normal has afforded them the opportunity to reassess their business models, their working arrangements, and their overhead costs (including whether they should ditch their large and expensive corporate offices in favour of more modest office space).
During the COVID-19 pandemic, it has become common for employees to work from home. Apart from the health benefits, there are other reasons for the increase in popularity of homeworking, such as more flexibility for employees, less commuting, increasing productivity, and a cost saving for the employer by reducing workspace. Persons working from home may want to claim a deduction for certain expenditure they incurred in their home office.
Mental health matters should matter in the workplace. The current global COVID-19 pandemic has required many employers to confront this issue with growing urgency. Isolation, social distancing and continued lockdowns have led to a rise in mental health issues that impact on the workplace, with the potential impact being felt by employers who have a positive duty to accommodate and assist employees in this context.
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.
On 20 May 2021, in the case of Bulldog Abrasives Southern Africa (Pty) Ltd v Davie and Another (J123/21)  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.
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.
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?
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?
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.