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The Basic Conditions of Employment Act(BCEA) has changed to make provision for three new categories of leave. The first category is parental leave that relates to the birth of a child. An employee who is a parent of a child will be entitled to 10 consecutive days’ parental leave. This will effectively replace the three days’ paternity leave currently provided for in the BCEA, but the current maternity leave provisions in the BCEA remain unchanged. Parental leave may commence on the day the chi...
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Not to over-criminalise Labour Law

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In SAPS v SSSBC and others (PA 10/2017) (handed down on 5 November 2019), the Employee, a sergeant, employed by SAPS since 1991, was dismissed after being found guilty of shooting and killing a civilian with his service firearm. The SAPS charged the employee with four counts of misconduct arising from his killing of the deceased. After the employer had presented evidence and the employee had testified and presented evidence, he was found guilty of three of the charges. The sanction of dismissal ...
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May an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”. Section 187(1)(c) of the South African Labour Relations Act, 1995 (the “LRA”) as amended provides that a dismissal will be automatically unfair if the reason for the dismissal is “a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer.”
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SEXUAL HARASSMENT IN THE WORKPLACE

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SEXUAL HARASSMENT IN THE WORKPLACE   In terms of the Employment Equity Act, No. 55 of 1998 (Act), harassment of an employee is a form of unfair discrimination and it is prohibited on any one or combination of grounds of unfair discrimination listed in the Act.   Sexual harassment is a form of unfair discrimination based on the grounds of sex, gender and/or sexual orientation. It has been characterised by the Labour Appeal Court as “the most heinous misconduct that plagues a workplace”.   ...
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Is THERE a DIFFERENCE between a TEMPORARY EMPLOYMENT SERVICE (TES) and a SERVICE PROVIDER for PURPOSES of SECTION 198?   q  Amendments to Section 198 and the insertions of sections 198A-C of the LRA came into operation on 01 January 2015. q  One of the most crucial impacts of these amendments is the deeming provision in terms of section 198A(3)(b)(i), which provides that an employee engaged by a temporary employment service (TES) (otherwise known as a labour broker), for the purposes of rend...
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The BCEA and Its Amendments Pertaining To Compliance Orders: What Does It Mean For You? 1 January 2019 marked a new age for the South African labour market with the introduction of the National Minimum Wage Act (NMWA). Due to the introduction of a National Minimum Wage, certain provisions of the Basic Conditions of Employment Act, 75 of 1997 (BCEA) have been affected. Therefore, the Basic Conditions of Employment Act, as amended (BCEAA), inter alia incorporates certain provisions of the NMWA. T...
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What is Insubordination?

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What is Insubordination? Insubordination, in the workplace, refers to an employee's intentional refusal to obey an employer's lawful and reasonable instructions.  Such a refusal may undermine a supervisor's authority and ability to manage and, therefore, is often a reason for disciplinary action, up to and including dismissal. Elements of insubordination For conduct to constitute insubordination, a number of elements must be present;      It must be clear and evident that an instruction wa...
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Organisational Rights

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Organisational Rights: -    Obtaining Organisational rights assist a Union in recruiting and servicing its members, and to ensure workplace democratisation.   Is a union entitled to exercise organisational rights in a specific workplace, regardless of the scope of its constitution?   In order for a Union to exercise organisational rights in a workplace, the scope of the Union’s Constitution must include the industry/sector within which the Employer operates.   Example: -   In Lufil Pa...
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Arbitrary Ground Journal

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Alleging Discrimination based on an Arbitrary Ground: For an applicant to successfully prosecute his or her case on the basis of unfair discrimination on an “arbitrary ground” as contemplated in section 6(1) read together with section 11(2) of the EEA, the applicant will be required to identify and state the ground relied upon and such ground must have some characteristics that impacts upon his/her human dignity. Section 6 of the EEA provides as follows:  “Prohibition of unfair discrimina...
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Fixed-term Contracts of Employment: Ensuring Compliance with the Labour Relations Act   The amendments to the Labour Relations Act (“the LRA”) in particular section 198B thereof, which amendments came into operation on 1 January 2015, clarifies the legal position regarding fixed-term contracts of employment.   Section 198(B): - In terms of section 198B, there are two main remedies available to an employee employed on a fixed-term contract – to be deemed indefinite (section 198B (5)) or t...
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