Nabeel Noorbhai Attorneys

Passion, Quality and Integrity

Articles of Interest

 

 

Nabeel Noorbhai //ANN7 news interview//Justice for Delu

http://www.ann7.com/a-mothers-two-year-wait-for-justice/


Shahista Carrim (ITV Interview November 2018)- UIF/Maternity in the work place

https://www.youtube.com/watch?v=MOxutze55Aw

 

Domestic workers can now claim money for injuries after landmark court ruling

https://www.businessinsider.co.za/domestic-workers-can-claim-money-for-injuries-after-landmark-high-court-ruling-against-coida-2019-5

Tempted by that online will, divorce settlement or lease template? Read this first

https://www.fin24.com/Money/Wills-and-trusts/tempted-by-that-online-will-divorce-settlement-or-lease-template-read-this-first-20190428-2

 

It's high risk: private cannabis use can get you fired

https://www.news24.com/SouthAfrica/News/its-high-risk-private-cannabis-use-can-get-you-fired-20190406

 

ConCourt affirms employer's right to suspend without constituting a hearing

https://www.fin24.com/Companies/concourt-affirms-employers-right-to-suspend-without-constituting-a-hearing-20190219



EXTENSION IN PATERNITY LEAVE !!!

It's official! South African dads are getting paid paternity leave!
It's been nearly a year since the news that South African dads would be able to spend 10 working days at home with their new families. And this past Friday, the Labour Laws Amendment Bill was officially signed into law. Here's what you need to know.

It happened! It's true.

On Friday 23 November, President Cyril Ramaphosa signed the much-anticipated Labour Laws Amendment Bill into law. This Bill, which got the thumbs up in Parliament last November and just waited for the president's nod, gives fathers in South Africa the right to 10 days’ paid parental leave. 

It was ACDP MP Cheryllyn Dudley who first brought the proposed bill to the National Assembly in 2017, where it was passed and sent to Parliament. The Labour Laws Amendment Bill is the first piece of legislation to be passed in the National Assembly by a private member.

Reacting to the news via the ACDP Facebook page Cheryllyn said, "It has been an honour and a privilege for me to have been instrumental through the Labour Laws amendment bill in adding to this victory.”


The passing of the bill was also praised by Sonke Gender Justice, tweeting: 


  

The amendments

So, what exactly does the new Bill entail?

In addition to making a massive difference for new dads, the bill also includes provisions for adoptive parents and surrogate mothers, as well as women who have experienced miscarriage or stillbirth. 

The newly passed provisions are as follows: 

Parental leave: 

  • 10 successive days 

Parental adoption leave: 

  • 10 consecutive weeks or 10 consecutive days

*A child must be 2 years old or younger for adoptive parents to qualify for parental adoption leave and is only applicable to one parent. 

Commissioning parental leave (applicable to surrogate mothers)

  • 10 consecutive weeks or 10 consecutive days

A note on maternity leave 

  • A mother who loses her child in the third trimester, or whose baby is stillborn, remains eligible for maternity leave (4 consecutive months). 

The president has not given an official date for when the amendments will come into play but according to reports, this date is 1 January 2019. 

Read on News24: Working dads can now take paternity leave for 10 days

What did the law say about paternity leave in SA?

Previously, dads who wanted to stay with their baby and its mother had to take family responsibility leave, which was limited to 3 days per annual cycle, or use their annual leave. They were only entitled to family responsibility leave once they’d been employed for 4 months and for at least four days a week. The law made no provision for paternity leave for adoption or surrogacy.

What is the maternity leave situation in SA?

A mother is entitled to unpaid maternity leave of 4 months, while her position is reserved for her. She may claim from UIF for 17 weeks, at 38% to 58% of her salary (the salary ceiling is R12 478), tax-free. Some employers do pay their employees in part or full. 

Moms who miscarry in the third trimester or have a stillborn child can claim for 6 weeks. 

Read more about the Basic Conditions of Employment Act (BCEA) Section 27. 

Read: What the law says about maternity leave

How we stack up against the rest of the world:

This new bill will bring SA more in line with other countries, many of which offer 1 to 4 weeks' paternity leave. Some give parental leave which may be taken by one parent or split between both parents. And some offer incredible benefits for dads. Here's a snapshot:

In Canada, dads have several options. They may take 5 weeks of maternity leave at 70% pay, or 3 weeks at 75% pay (up to a certain maximum), paid by social security. Alternatively either parent may take 32 weeks: 7 weeks at 70% and 25 weeks at 55%. 

In the USA, 12 weeks’ parental leave applies to either mom or dad, but it’s inpaid – no UIF/social security claims available. 

In Australia, dads get 2 weeks' paternity leave at minimum wage but no payment (including maternity leave) is available to families where the primary caregiver earns above a certain threshold. Moms and dads are entitled to 52 weeks’ unpaid leave, shared among them, in the first 12 months after baby’s birth.

India is progressive and gives fathers up to 3 weeks at 100% of their salaries for the first and second children. From then on, only 12 weeks of paid maternity leave is permitted. 

And Iran makes paternity leave compulsory for 2 weeks, at full pay, and moms get 6 months’ maternity leave at full pay too!

In Romania, the dad gets 1 paid week – but 3 weeks if the dad took an infant care course! It also grants one parent 104 weeks at 85% of their salary – that is, 2 years; or 156 weeks if the child has a disability, and the other parent 4 weeks.

Spain grants dads 4 weeks at 100%; or 156 weeks unpaid parental leave for either parent. 

Finland offers 11 weeks at 70% up to a certain maximum.

Slovenia gives 12 weeks at 100% for 2 weeks, then a flat rate afterwards.

Sweden gives 18 weeks at 80%, up to a maximum!

In Japan, a father may take up to 1 year unpaid leave or may share the 26 weeks’ maternity leave with the mother.

Source: Wikipedia

What you say:

"We definitely need it, especially in the first two months because there's no sleeping in that time. My girlfriend and I had not slept, or else we'd take turns – she'd sleep and I'd be up the whole night, then I'd have to go to work the next morning. And when she wasn't sleeping at night, she didn't have a choice but to look after the baby during the day too. So how do you cope in that situation? Two people are definitely a win. 

"Also spending time with the child – how do you cope knowing that your little boy is just there but you'll next see him only in a few hours? This paternity bill is going to work out well for dads." 

– Zukile Daniel, video editor and father 

“Having paternity leave is really great as a father, because so many fathers don’t get to experience how it goes raising a child from birth. It’s really difficult for mothers as well to be on their own, they need comfort, they need somebody else who’s going to help out. The worst part about it is the sleepless nights because the baby is crying, needs a nappy change, the mother is exhausted especially if she’s breastfeeding, she really does need the help of the father in that time to be around.

I also think paternity leave is good for fathers for bonding with the child, from day one. You have to be there as a father, you have to be there.”

– Freeman Nofemele, barista and dad of 2 kids

“Well played Parlie! To be given more time off during this special time is really a fantastic initiative from the government. Dads around the world are more hands on than ever before, and all dads should be excited about being able to spend a few extra days alongside their partners and new bundles of joy.”

– Myles Brown, native advertising manager and dad 

(SOURCE News24)



 

 

 

Labour Law Articles and Downloads (source SA Labour Guide)

 


 

 

 

 

 

 

 

  • New Domestic Worker Minimum Wages: 01 December 2016 until 30 November 2018

 

 

 

 

 

 

 

 

 

  • First Aid Boxes in the Workplace

 

 

 

 

 

Conciliation – Arbitration [Con/Arb]: - ‘A Hybrid Process’

By Johann Scheepers

 PREMIER FOODS (PTY) LTD (NELSPRUIT) v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION and GLEN CORMACK N.O. and MAROPENG STEWARD LEKOKOTLA (case no: JR 2103 / 12) (8 November 2016), before Snyman, AJ.

“The LRA permits councils and the CCMA to arbitrate disputes immediately if conciliation fails. The process of ‘con-arb’ collapses the normal two-phase process of conciliation meeting, followed by arbitration on a later date. This expedited procedure has potential dangers. For one, the same commissioner must necessarily act as both conciliator and arbitrator, meaning that, when acting in the latter capacity, he or she may have been privy to compromising information received when acting in the former capacity. This may render the process subject to review.”

[See Dr John Grogan, ‘Labour Litigation and Dispute Resolution’ Juta, 2014 ed. at 158].

Background

This matter concerns an application by the applicant [the employer] to review and set aside an arbitration award by the second respondent, Commissioner G Cormack, [the commissioner] in terms of which the third respondent’s dismissal [the employee] by the applicant [the employer] was held to be substantively unfair; and the third respondent [the employee] was afforded the relief of reinstatement retrospective to date of dismissal. The application [the review] was brought in terms of Section 145 of the Labour Relations Act (‘the LRA’). 

The review was brought by the employer based on grounds of misconduct committed by the commissioner during the con/arb proceedings. As a consequence of the misconduct, the employer alleged that it was deprived of a fair hearing.

In this matter with con/arb proceedings, the issue of the employee’s dismissal was first conciliated. The parties made opening statements where after conciliation proceedings failed.

When the proceedings resumed, on record, the employer made an application for the recusal of the commissioner. This recusal application was founded on statements the commissioner had made to the applicant’s representative in the course of the settlement discussions in conciliation about the evidence in the case and the applicant’s prospects of success.

The employer contended that these statements made by the commissioner indicated that the commissioner had already made up his mind in the matter, against the employer. 

In the review application, the employer has contended that the commissioner had been inextricably involved in a discussion of the evidence the conciliation, and following that he told the employer that continuing with the arbitration would result in them losing.

It was clear from the transcript that the employer had barely started motivating its recusal application when the commissioner intervened, saying: ‘I’m going to interrupt you, I’m not going to recuse myself, I don’t believe you have any grounds to ask me to recuse myself…’   

The employer was thus not allowed by the commissioner to bring a recusal application, and it followed that the employee was never required to answer such.

In his arbitration award, the commissioner did not deal with the recusal application. The commissioner did make mention that he dealt with certain aspects of the case in the conciliation but had not formed an ‘opinion’ as to whether this was the crux of the charges.

The commissioner held that a recusal would lead to a postponement and delay in resolving the dispute, which would be prejudicial to the employee. However, the commissioner recorded that ‘the arbitration then continued by agreement’, as part of the reasoning why he did not recuse himself. 

The transcript of the proceedings showed that the employer never agreed to continue with the proceedings. The employer had just commenced with bringing the application for recusal when the commissioner ‘simply shut it down’.

The employee was not even called on to answer the submissions and claim any prejudice that may result to him if the recusal was upheld. The employer was in fact given no choice by the commissioner other than commencing the arbitration by calling its first witness.

The Labour Court Judgment

The Court first addressed the test for review where the issue in contention was misconduct on the part of the commissioner. For the purpose of this summary, it was deemed unnecessary to restate in detail the judgments considered and referred to by the Court.

Suffice it to refer briefly to some of the case law referred to in the judgment. In the judgment of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, (2007) 28 ILJ 2405 (CC), Navsa AJ held that in light of the constitutional requirement (in s 33 (1) of the Constitution) everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and said that ‘the reasonableness standard should now suffuse s145 of the LRA’.

(source: SA Labour Guide)

 

 

Labour Brokers and their Clients: Who is the Employer?

By Anastasia Vatalidis, Director and Kerry Badal, Associate, Werksmans Attorneys

Issue

Who is the employer of an employee employed by a labour broker who has been performing services for a client of a labour broker for more than three months, and earns below the threshold (R205 433.43 per annum)?

Summary

Amendments to the LRA came into operation on 1 January 2015.  A particularly controversial amendment which affects the labour broking industry and which required clarification, centred around the ‘deemed employee provisions’ in the new section 198A(3)(b) which section provides that an employee of a labour broker earning below the threshold will be deemed to be the employee of that client if the employee is assigned to that client for more than three months.

The debate which arose regarding section 198A(3)(B) relates to whether the deeming provisions would create a dual employment relationship amongst the labour broker employee, the labour broker and the client, or whether the provisions contemplate a sole employment relationship between the labour broker employee and the client.

Court’s Decision

Two conferring decisions have recently been handed down by two separate employment forums, pronouncing upon this pertinent issue. These decisions were handed down by the CCMA in the matter of Assign Services Proprietary Limited v Krost Shelving and Racking Proprietary Limited and National Union of Mine Workers of South Africa ECEL 1652-15, and in the National Bargaining Council for the Road Freight and Logistics Industry (“NBCRFLI“) in the case of Refilwe Esau Mphirime v Value Logistics Limited / BDM Staffing Proprietary Limited FSRFBC 34922.

In both decisions, the CCMA and the NBCRFLI found in favour of a sole employment relationship and held that if an employee provides services to the client of a labour broker in a manner which falls outside the scope of the definition of temporary services, and earns below the threshold, that employee will be deemed to be the employee of the client. In other words, the employment relationship between the labour broker and the employee would cease to exist.

Importance Of This Case The findings of the CCMA and the NBCRFLI are not uncontroversial and it is inevitable that the Labour Court and the Labour Appeal Court will, in due course, be called upon to review these findings. Although these decisions have potentially far reaching consequences for the labour broking industry, its employees and clients, it should be borne in mind that these decisions do not negate the continued use of labour brokers, but seeks to regulate such use.

 The Basic Conditions Amendment Act formally a law of SA – Department of Labour

The Basic Conditions Amendment Act, 2013 and its Administrative Regulations published on 29 August 2014 came into effect on the 1 st of September 2014.

The objectives of the amendments to the Basic Conditions of Employment Act are to address government’s commitment to avoid exploitation of workers, to ensure decent work for all workers, to protect the employment relationship, to introduce laws to regulate contract work, to sub-contracting and out-sourcing, to address the problem of labour broking, to prohibit certain abusive practices, effect certain consequential amendment as a result of the insertion of new definitions and to effect certain textual corrections, to strengthen the implementation and enforcement mechanisms of the Act, e.g. increased fines for non-compliance and to ensure South Africa’s compliance with International Labour Standards (Conventions 100 & 111).

The Basic conditions of Employment Act was amended so as to substitute certain definitions, to prohibit employers from requiring employees to make payments to secure employment and from requiring employees to purchase goods, services or products, to prohibit anyone from requiring or permitting a child under the age of 15 years to work, to make it an offence for anyone to require or permit a child to perform any work or provide any services that place at risk the child’s well-being.

The Act also provide for the Minister to publish a sectoral determination for employees  and employers who are not covered by any other sectoral determination, to provide for the Director-General to apply to the Labour Court for an employer to comply with a written undertaking by the employer, to provide for a compliance order, to delete certain obsolete provisions, to provide the Labour Court with exclusive jurisdiction in respect of certain matters; Provide for certain offences and penalties, to increase the penalties for certain offences, and to provide for matters connected therewith.

Media Statement: Department of Labour: 02 September 2014

 

New Amendments to Labour Legislation 

The President assented to the Labour Relations Amendment Act on 17 August 2014. The Department of Labour indicated that they are currently working on the regulations that will accompany the newly-signed law before it is promulgated. In addition The Department of Labour indicated that they will approach the President with the hope that it would be signed before the beginning of October 2014.