Martin Vermaak Blog

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In a previous article entitled “Employees and Contractors”, we touched briefly on the criteria used to distinguish between an “employee” and an “independent contractor”. In this supplement, we intend to refer to another commonly arising issue, namely if a shareholder or director of a company or close corporation can be an “employee” for purposes of labour law?

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In an article entitled “Poor Work Performance in the Workplace”, some of the requirements for a substantively and procedurally fair dismissal of an employee on the basis of poor work performance are briefly discussed.

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In a previous article entitled “BUSINESS TRANSFER”, the provisions of section 197 of the Labour Relations Act 66 of 1995 (LRA) were discussed. In summary, the provisions of section 197 of the LRA are designed to protect the employment status of employees when the business of an employer changes hands, so that the new employer assumes the obligations of the former employer.

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In an earlier article entitled “Constructive Dismissals” the author discussed the basic legal framework relating to constructive dismissals and warned that “Employees should think carefully before they resign only to claim ‘constructive dismissal’ as they will be unemployed, without the regular income from their employer that they are used to, and the onus will be on them to establish the fact of the dismissal.”

An Appeal by the CCMA against a judgement of the North Gauteng Court was upheld by the Supreme Court of Appeal (SCA).

The judgement had ruled the exclusion of Lawyers from the CCMA’s proceeding (under it Sub-Rule) 25(1) (c) as unconstitutional.

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SUBSTANTIVE FAIRNESS OF DISMISSAL

In a previous article entitled “Fairness: Disciplinary Hearing”, Martin Vermaak discussed the requirements of substantive fairness in relation to dismissal for contraventions of workplace rules set by the employer.

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Sedibeng District Municipality v South African Local Government Bargaining Council and Others [2012] 9 BLLR 923 (LC)

In this matter, two employees brought a claim contending they had been subjected to an unfair labour practice when they were not promoted to certain posts on the basis that they failed a polygraph test.

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others [2012] 11 BLLR 1099 (LAC)

Until recently, the general view among lawyers (and for that matter, employers) was that they were entitled to deny an employee sick leave in the absence of a medical certificate from a registered medical practitioner, and actual “sickness” in the medical sense of the word.

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The Employment Equity Amendment Bill was tabled in Parliament late last year. The following are some significant changes to the Law which will be brought about by the Bill, once enacted.

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Food & Allied Workers Union v Ngcobo 353/12 [2013] ZASCA 45

This judgment by the Supreme Court of Appeal confirms that a trade union is liable for damages if it fails to properly perform its mandate to represent its members before bodies such as the Commission for Conciliation, Mediation and Arbitration, and the Labour Court. The court reasoned that after a union accepts a member's case, it is obliged to perform its functions faithfully, honestly and with care and diligence and to account to the employee for its actions. In case the case of a failure to do so, the court held, the employee is entitled to claim damages from the trade union in the amount of the award that would have been made if the claims for wrongful dismissal had succeeded.

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DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER AND ANOTHER V POLICE AND PRISONS CIVIL RIGHTS UNION (POPCRU) AND OTHERS (107/12) [2013] ZASCA 40 (28 MARCH 2013)

The duty to accommodate diverse religious and cultural practices in the workplace was emphasised in this recent judgment from the Supreme Court of Appeal.
In this case, five correctional service employees were dismissed by the Department of Correctional Services for keeping dreadlocks in violation of department policy. The employees had previously refused to cut their dreadlocks, citing different reasons, such as cultural and religious beliefs. They were then dismissed from the department, with immediate effect.