Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the new 'Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace'. We also discuss three new cases: The first case investigates whether a fixed-term contract morphs into permanent employment if the employee continues working after the end of the fixed term contract. The second case, a Constitutional Court judgment, deals with the effect of inherent requirements of a job which arguably discriminate against a disabled employee. The third case deals with the liability of an essential service employer to remunerate its employees during the Covid-19 lockdown.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Effect of continuing to work after the expiry of a fixed-term contract
In Gauteng Provincial Legislature v Commission for Conciliation, Mediation & Arbitration & others (2022) 43 ILJ 616 (LAC) it was held that the mere fact that an employee continues to work in the same position for the same employer after their fixed-term contract has come to an end, does not mean that the fixed-term contract has 'morphed' into permanent employment. It may still be on a fixed-term basis, and depends on the facts of each case.
Read more (Worklaw subscriber access only)
Discriminatory inherent job requirements
In Damons v City of Cape Town [2022] ZACC 13 30 March 2022 the Constitutional Court held that inherent requirements of a job are a complete defence to a claim of unfair discrimination, where they are rationally connected to the performance of the job, adopted in a good faith belief that they are necessary to the fulfilment of a legitimate work-related purpose, and reasonably necessary to the accomplishment of that purpose.
The obligation to 'reasonably accommodate' only applies if such reasonable accommodation will make it possible for the employee to fulfil the inherent requirements of the job. Accommodation beyond this, ceases to be reasonable, because it would effectively require an employer to employ someone who cannot possibly perform the inherent requirements of the job.
Read more (Worklaw subscriber access only)
The employer's liability to pay essential service wages during lockdown
In Buys v Oasis Group Holdings (C422/2020) [2022] ZALCCT 5 (24 January 2022) it was held that the duty to pay, and the commensurate right to remuneration, arises not from the actual performance of work, but from the tendering of services. The Covid-19 regulations in force during level 5 of the lockdown made it clear that essential service employers were not excused from their obligation to pay their employees' salaries.
Read more (Worklaw subscriber access only)
ARTICLE: The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace
By Prof Alan Rycroft
There are at least 18 Codes of Good Practice covering diverse aspects of South African employment law, placing a formidable obligation on employers and managers to comply with multiple duties and recommendations. In addition to the sexual harassment Code, a Code on Preventing and Eliminating Violence and Harassment was published in 2020 as a draft for comment.The drafters have clearly now had second thoughts about this draft Code and have instead gazetted a new Code under the Employment Equity Act, effective 3 March 2022, entitled The Prevention and Elimination of Harassment in the Workplace. This also replaces the previous sexual harassment specific Code, and incorporates other aspects of harassment - general harassment and bullying, and 'racial, ethnic and social origin' harassment. There is accordingly now a single new harassment Code, but which repeats much of what was contained in the previous sexual harassment Code.
Prof Rycroft in his article discusses the new Code, and identifies problems that may be experienced in its application.
Read more (Worklaw subscriber access only)
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Contact help@worklaw.co.za for more information.
Bruce Robertson
April 2022
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