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 Foreign Employee: current law, changing policies which looks at tensions and new attempts to more tightly regulate foreign employees, in light of a recent High Court judgment.
We also discuss four new cases: The first case, a judgment of the Constitutional Court, deals with the requirements for a strike interdict when it is difficult to identify who is involved in strike misconduct. The second case is the long-awaited Constitutional Court judgment on the public sector wage dispute. The third case deals with the requirements for a mandatory vaccination policy in a small workplace, and the fourth case asks whether there is a difference between an "admission policy" regulating access to the workplace, and a mandatory vaccination policy.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
What must be proved before an interdict can be granted?
In Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates (Pty) Ltd and Another (CCT 301/20) [2022] ZACC 7 (1 March 2022) it was held that for a strike interdict to be granted, a factual link between an individual employee and the actual or threatened unlawful conduct must be shown. Mere participation in a strike or protest in which there is unlawful conduct, is insufficient to link an employee to the unlawful conduct, in the manner required for interdictory relief to be granted. The necessary link can however be established where the protesters or strikers commit the unlawful conduct as a cohesive group.
Read more (Worklaw subscriber access only)
ConCourt rules on public sector wage dispute
In National Education Health and Allied Workers Union v Minister of Public Service and Administration and Others (CCT 21/21, 28/21, 29/21, 44/21) [2022] ZACC 6 (28 February 2022) the Constitutional Court has ruled on whether government has to implement the third year of the 2018 wage agreement negotiated with public sector unions. The ConCourt confirmed that a fundamental principle of our law is that a state official must be legally empowered to perform any act, and that public power may only be exercised by a lawfully constituted authority. Where the state has nevertheless acted in an unauthorised manner, the other parties cannot rely on estoppel to say they were misled into relying on a representation, when they had knowledge of the true facts and therefore knew that the representation was untrue or incorrect.
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Latest decisions on mandatory vaccination policies
We cover two recent decisions on mandatory vaccination policies in this newsletter. The one - a CCMA award in Dale Dreyden v Duncan Korabie Attorneys WECT 13114-21 7 March 2022 - held that in small businesses, there are less stringent requirements in developing a mandatory vaccination plan. Emphasis should be placed on whether an employee was aware of the requirement to vaccinate; whether the employer considered reasonable accommodation of an employee who wished not to be vaccinated; whether an employee was provided with a fair opportunity to respond to the requirement; and ultimately, whether the sanction of dismissal was appropriate in the circumstances.
The other case - a Labour Court judgment in Solidarity obo members v Ernest Lowe, a trading division of Hudago Trading (Pty) Ltd (J49/22) ZALCJHB 14 March 2022 - distinguished between a workplace admission policy and a mandatory vaccination policy, and held that the employer's 'admission to the workplace' policy did not constitute a mandatory vaccination policy under Consolidated OHSA Directions.
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ARTICLE: The Foreign Employee: current law, changing policies
By Prof Alan Rycroft
These are anxious times for foreign employees. Their employers are caught between loyalty to often long-serving and competent workers and, on the other hand, an increasingly hostile and punitive legal environment.This tension is increasingly seen in a number of ways, which Alan Rycroft explores in his article. Adding to this, in the recent High Court judgment in Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour (17474/20) [2022] ZAWCHC 14 (18 February 2022), the business need for employees who could communicate with clients in Zimbabwe, Malawi and other countries in their own language, was seen as discrimination against South Africans.
Alan sets out the current law and discusses proposed changes to various pieces of legislation that will impact on these issues.
Read more (Worklaw subscriber access only)
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Bruce Robertson
March 2022
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