Employment Law Archives - Ashersons Attorneys

01 Oct 2022

Dismissed for Criticising a Mine’s “No High Heels in the Workplace” Rule

Employers have a general duty to ensure health and safety in the workplace. But as a recent Labour Court case illustrates, policies dealing with these issues must be correctly drawn, implemented and enforced. A mine’s “no high heels” policy challenged A mining operation introduced a health and safety policy, applicable to all employees, requiring that: “Appropriate shoes must be worn at all times. Slippers, high heels and open shoes are not allowed”. A later clarification provided that “Only flat shoes may be worn at work…”. After a risk assessment around the issue of wearing high heels two years later, a…

04 Apr 2022

By Ashersons Attorneys

Exemption Clauses and Thieving Employees: Can You Sue (or Be Sued)?

Employee theft has been a headache for employers from the dawn of history, and no business should ignore the dangers it poses, particularly if your business handles third-party high value goods. Your chances of being sued if one of your employees steals a customer’s asset/s are high, the reason being of course the concept of “vicarious liability” – the legal rule that can make you generally liable for your employee’s actions. Your best defence (other naturally than taking steps to stop light-fingered employees from stealing in the first place!) is the “exemption” or “disclaimer” clause. It can present a formidable…

01 Mar 2022

By Rafi Weiner

Fired For Moonlighting

“Moonlighting” is the practice of employees boosting their monthly income with a “side-job” or “side-business”. It has been a feature of working relationships since the dawn of history, but now the pandemic lockdowns and the shift to the “gig economy” (where independent contractors and freelancers are paid for short-term assignments) have seen dramatic increases in the number of employees forced to supplement their incomes in this way. Some stats suggest that now almost half of all employees have a second source of income, and both they and their employers need to take note of a recent Labour Appeal Court decision…

01 Sep 2021

By Rafi Weiner

A Million Rand Warning: Act When Employees Reach Retirement Age

Many employees reaching “retirement age” (often set at 60 or 65) are not ready to retire. Perhaps they need to carry on earning an income, often they are fit and healthy and want to remain engaged and productive. Increasingly, both factors are at play. Regardless, the concepts of an aging workforce and “65 is the new 50” are here to stay, and employers and employees alike need to tackle the changing realities that come with them. Agree a retirement date upfront! Firstly, do not as an employer make the mistake of not specifying an agreed retirement age in your contracts…

05 Jul 2021

By Ashersons Attorneys

R4m Damages for a Workplace Sexual Assault

Employers who don’t adequately address the problem of sexual harassment in the workplace can expect to pay the price in court. As can the perpetrators themselves. We look at the case of a woman [PE v Dr Beyers Naude Local Municipality and Another (828/2011) [2021] ZAECGHC 35] whose decade long trek through the courts has finally resulted in a damages payout of just under R4m. The employer and the perpetrator are “jointly and severally” liable for both the damages and for a no-doubt substantial legal bill. Our discussion of the judgment leads us through the factors taken into account by…

13 May 2021

By Selwyn Zackon

Companies: Are Restraints of Trade Valid in a Time of Covid?

Consider this unhappy (but not unlikely) scenario: For whatever reason, you part ways with your fellow director/shareholder (or perhaps a key employee), who goes off immediately to join (or found) the opposition. Now you have a major problem – he/she was privy to all your trade secrets and confidential information and they are now being used to compete against you. Your business could be crippled. Using the time-tested restraint of trade clause An effective and time-tested way of protecting your business from such a risk is to insist on all directors, shareholders and key employees signing restraint of trade agreements…

13 May 2021

By Rafi Weiner

Employers: Beware the “Casual Worker” Myth!

Employees in South Africa enjoy strong protections under a raft of laws such as the Basic Conditions of Employment Act (BCEA), the Labour Relations Act (LRA) and the Employment Equity Act (EEA). Failure to comply with these Acts, whilst perhaps tempting to many employers struggling financially in these hard times, is not only unfair to employees (many of whom are in equally dire straits), but also an extremely risky business from a legal perspective. The CCMA (Commission for Conciliation, Mediation and Arbitration) and our courts take a dim view of employers flouting these laws, and offenders will pay heavily for…

01 Apr 2021

By Rafi Weiner

Can an Employee Who Refuses Vaccination be Fired?

Most of us will celebrate the day we are offered a COVID-19 vaccination, but here in South Africa as overseas it seems inevitable that a significant number of people will refuse to be vaccinated. The reasons given for this stance have been many and varied, some mainstream and reasonable, others less so. Perhaps some of those refusing will reconsider if and when they find they are denied opportunities available to those vaccinated - travel restrictions spring to mind but another example could be establishments like hotels and restaurants getting sticky on the issue if customer demand for safety grows. A…

02 Mar 2021

By Ashersons Attorneys

Can Employees Resign to Dodge Disciplinary Hearings?

It’s an age-old workplace dodge - threatened with a disciplinary hearing and fearing a guilty verdict, an employee resigns with immediate effect and walks out the door with a defiant “Well that’s it, you just lost your right to discipline me. See you around, loser”. No longer! Our courts have dealt with this issue often in the past in various guises and with conflicting outcomes. Fortunately, a new Labour Appeal Court (LAC) decision in The Standard of Bank of South Africa Ltd v Chiloane, Johannesburg Labour Appeal Court Case no. JA 85/18 has finally settled the matter. The bank employee…

04 Nov 2019

By Ashersons Attorneys

Employees on Probation: Can You Dismiss for Poor Performance?

Our laws allow employers to hire new employees on a probationary basis, and doing so can give both parties time to assess how good the “fit” actually is and whether the employee should become a permanent one. Employers must however avoid falling into the trap of thinking that they can dismiss a probationary employee at will; on the contrary they must ensure both “substantive” and “procedural” fairness at all stages of the process. But how do you ensure fairness? The Labour Relations Act’s “Code of Good Practice: Dismissal” provides important guidelines in this regard (note that what is set out…