Temporary employment laws in South Africa

 

A client asked: “Can my employee keep me on as a temporary employee, indefinitely, and dismiss me whenever it feels like it?” 

Regarding temporary employment contracts, our Labour Relations Act (LRA) provides that: 

·         If a company employs a person for longer than three months, he or she would be ‘deemed’ to be an ‘indefinite period employee’ (i.e., permanent employee) of the employer. 

·         This principle will not apply if there is a justifiable reason to retain him or her as a temporary employee.

 ·         The LRA protects them against unfair dismissal. 

·         If a labour broker employs a person, he does not become the client company’s employee after three months. However, if the broker dismisses the employee after three months for a reason, he believes is unfair, both the client company and the labour broker can be taken to CCMA and held jointly and severally liable. 

·         These provisions only apply to employees who earn less than the Basic Conditions of Employment Act threshold (currently R205,433.30 per year). 

·         It is also not applicable to businesses that employ less than ten people or new companies that employ less than 50 people within the first two years of the business opening.

Justifiable reasons

There are circumstances when an employer is justified in employing someone on a temporary contract for longer than three months without becoming a permanent employee. E.g., if the employer can satisfactorily prove that the nature of the work is for a limited and definite period, or there is another justifiable reason for temporary employment such as:

 

• Replacing of another employee who is sick or absent from work.
• Employment on account of a temporary increase in the volume of work, which will likely not last longer than 12 months.
• If a company employs a student or recent graduate to gain work experience.
• It employs a person for a specific project which has a limited or defined duration.
• It employs a non-citizen who has a work permit for a specific duration.
• It employs a person to perform seasonal work.
• Employed for an official public works scheme or similar public job creation scheme.
• Employed in a position that is funded by an external source for a limited period.
• If an employee reaches the expected or agreed retirement age applicable in the employer's industry.

Equal Treatment

Another change made to the temporary employment laws is that, after three months of employment, a fixed-term employee (even if the reason for the fixed term is justified) the employer cannot treat the employee less favourably than a permanent employee unless justified.

A justifiable reason includes when the different treatment is because of the application of a system that considers:

• Seniority, experience, or length of service
• Merit
• The quantity or quality of work performed
• Or other criteria of a similar nature

The above is not applicable if such a reason is prohibited by Section 6(1) of the Employment Equity Act (this refers to human-rights grounds such as race, religion, gender etc.)

Employers must also provide employees with equal access to opportunities to apply for vacancies, whether on permanent or fixed-term contracts.

 

Negotiating successfully

 

Negotiation is when two or more parties with different needs and goals try to find a mutually acceptable solution. A successful outcome will help the parties build better relationships, lasting, long-term solutions that satisfy both parties' needs and assist in avoiding future problems and conflicts.

As Steven Covey suggests in his book "The 7 Habits of Highly Effective People", negotiating requires give-and-take that is a win-win for both parties. A good negotiation leaves each party satisfied and ready to do business with each other again.

Good negotiators are flexible, creative, aware of themselves and others, good planners, honest, win-win oriented and good communicators.

Lawyers train to be confrontational and to posture, scoring points with their clients. Aggression will only alienate other parties and destroy negotiations.

The trick is to be calm, confident, and considerate. A skilled negotiator will keep the discussion going and facilitate mutually beneficial outcomes. He or she will not confuse negotiation with confrontation and will remain calm, professional, and patient. They will never make it personal or become angry or hostile.

A good negotiator will consider the expectations of both sides and prepare for compromise and mutually beneficial solutions. Most importantly, they will put things in writing. Compromise does not mean capitulation but settling for a result that is moderately satisfactory to the participants. A good tactic is conceding a point that is not vital to one party but is critical to the other.

Experience shows that it is better to avoid a stern approach and adopt principled negotiation as the best practice. A skilled negotiator will focus on interests, not positions, and generate various objective criteria before settling on an agreement.

A successful negotiation requires strategy, planning, and preparation. Define the minimum acceptable, anticipated, and ideal outcome. Write a plan to list, rank and value the issues and any compromises or concessions parties might make.

A skilled negotiator will know when to look for closing signals like fading counterarguments or tired body language from the other party. They will summarise where negotiating positions converge, and articulate agreements reached, and concessions already made.

They will get the agreement in writing and signed as soon as possible.

Contact me if you need my help. I have been settling disputes since 1974.

What is an accident at work?

 

The Compensation for Occupational Injuries and Diseases Act, 1993 ("COIDA") defines an accident as "an accident arising out of and in the course of an employee's employment and resulting in a personal injury, illness or the death of the employee".

COIDA provides that if an employee has an accident resulting in disablement or death, he or his dependants are entitled to the benefits provided for in the act.

Who is liable for damages for an employee's injuries during a protest action over labour issues?

Members of a trade union, National Education, Health and Allied Workers' Union accessed the offices where Ms Catherine Churchill worked as an employee of the Premier of Mpumalanga. During the demonstrations, she claimed that the protesters assaulted her, and she suffered physical injuries (bruises, scratches, and a swollen foot). As a result of being shocked and humiliated, she also suffered a psychiatric injury that left her with PTSD (post-traumatic stress disorder).

Arising from the incident, Ms Churchill sued the Premier of Mpumalanga for past and future medical treatment, general damages, past and future loss of income. She alleged that the Premier's and the Director-General's negligence caused her injuries.

The Supreme Court of Appeal of South Africa ("SCA") heard the matter in Churchill v Premier, Mpumalanga.

The Premier and the DG raised a special plea contending that Ms Churchill's claim constituted an occupational injury, entitling her to compensation in terms of COIDA. In other words, she had a lawsuit against the Compensation Fund established under COIDA and not against the Premier and the DG.

The court had to decide if the Premier and DG were protected from liability, and considered the following key issues:

"Did this incident arise out of Ms Churchill's employment so that her injuries, both physical and psychiatric, were sustained in an accident for the purposes of COIDA? It was accepted that because it happened at her place of employment and while she was going about her duties, it arose in the course of her employment. Did it arise out of her employment? In other words, was it sufficiently closely connected to her employment to have arisen from it? The fact that it occurred in her workplace when she was going about her duties is undoubtedly a factor that connected it to her employment. In that sense, her employment brought her within the zone of risk, but that is merely where the enquiry commences. Was the risk also incidental to her employment?"

The SCA found that the purpose of COIDA is to compensate for occupational injuries and disease directly sustained when at work. It would not apply to accidents tenuously and tangentially connected to the employee's duties.

The SCA found that the accident did not arise out of Ms Churchill's employment. The SCA concluded that the only connection between the incident and Ms Churchill's occupation was that she was at work at the time. The incident did not relate to her duties. She was not assaulted because of the position she held, or because of anything she had done in carrying out her duties, or for any reason related to the protest action that took place that day.

Therefore, her injuries did not arise out of her employment, section 35(1) of COIDA did not apply, and the Premier was accordingly liable to compensate her for damages. 

Can an employee be fired for refusing to be vaccinated?

 

Countless South Africans are anxiously awaiting their chance to get vaccinated against the novel coronavirus (COVID-19). However, in many countries, some people have refused to be inoculated.

Our President made it clear that this is a voluntary vaccine.

While no firm regulations are in place around international and interstate travel, some countries may require travellers to have a Covid vaccination passport. In time, pubs and restaurants could also refuse entry to people who refuse to get vaccinated.

Can your current (or prospective) employer force you to be vaccinated as the government eases pandemic restrictions and we go back to work? Can a mandatory COVID-19 vaccination be required as a condition of employment? Can an employee be dismissed for refusing to be vaccinated?

The law is unclear.  Until our courts rule on a case-by-case basis, employers should be wary of making a jab compulsory and dismissing an employee who refuses the vaccination.

Our courts will balance employees' rights between our Constitution (that gives citizens the right to privacy or bodily integrity) and compliance with health and safety protocols. The applicable laws are the Disaster Management Act, the Occupational Health and Safety Act, the Mine Health and Safety Act, and other legislation pieces, including the Labour Relations Act (the LRA).

Section 187(1)(f) of the LRA makes a dismissal automatically unfair if an employer unfairly discriminates against an employee on grounds such as age, religion, conscience, and belief as well as "any other arbitrary ground". Time will tell if an employer can fairly dismiss an employee who refuses the vaccination on religious or similar grounds.

Employers should create a Covid vaccination policy that may be mandatory or flexible, depending on the workplace health risks.

The ultimate test will be if the mandatory vaccination policy was fair and reasonable in the circumstances of each case. If it was, an employee's refusal to be inoculated might be a ground for dismissal.

 

Can I refuse to go to work during the lockdown?

The Covid-19 pandemic has sown fear and confusion. People have lost their jobs and others are scared to go to work and be with co-workers.

Can an employee reasonably refuse to work in an office or workplace? In the recent CCMA case of Botha v TVR Distribution, the CCMA found that if an employer issues a lawful and reasonable instruction, even during a pandemic, the employee is obliged to obey it and could face dismissal for failure to comply.

The commissioner had to decide on the fairness of Botha’s dismissal on the grounds of gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown.

Botha’s employer had the required CIPC certificate to allow it to operate as an essential service during the lockdown. The employer ordered Botha to go to work but he refused, because he had not been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he refused to break the law.

After hearing the evidence, the commissioner found that the dismissal was substantively fair but procedurally unfair. The commissioner found that the company had complied with all the disaster management health and other regulations to protect Botha, but he simply had no intention to attend work.

Regarding the evidence, various authors, and the Labour Relations Act (especially Schedule 8 Code of Good Practice: Dismissal) the commissioner found that an employee’s lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority; that Botha’s refusal to report for duty amounted to a failure to obey a lawful and reasonable instruction, he was insolent and insubordinate in doing so, and that his dismissal was therefore substantively fair.

The commissioner further ruled that as that the chairperson at Botha’s disciplinary hearing seemed to have prejudged the case and failed to allow Botha to provide mitigating factors for his conduct, the dismissal was not procedurally fair. Accordingly, the employer was ordered to pay one month’s salary to Botha as compensation.