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SP
iee
A\CESFT}
G58 A Christianson
ie |
 CHAPTER 3 THE MEANING OF ‘EMPLOYEE’

3ae ee .Peeon
the
other
person
for
whom
he
ofaro
WOR
i
ee is provided
V ) | : Carte

NDP ge ees
200AoftheLRA.
__ section | FO ee
of it, thispresumption
makesit 81
easierfora personwhoapproaches
loymentservices
the
eBs
CCMA
(alsoy
on the face
or the courts to establish that he/she is an employee and entitled to the legislative right
e relies On. However, this provision, while aime ina i

re has to exist some contractual arrangement ,

esivescited above). g toperform work (see theMyeni and
it onlyappliesto those instanceswhere a personwantsto establishhis/herstatu
an
law
employee
(iewhere
forpurposes
acontractual
oftheapplication
dispute
exists
oflegislation.
between
For
employer
purposes
and
ofthe
employee)
saihen
thetest4
developed
bythe courtsandas discussedaboveappliesandtheonusremains
onthe
personwho claims to be an employee to prove that status. |
- It only applies to persons who earn below the threshold laid down by the Ministerof
Labourin terms of the BCEA (currently R205 433,30 per annum—see chapterfour
below).For personswho earn more,the test developedby the courtsandas discussed
aboveapplies and the onus remains on the person who claims to be an employeeto

. prove that status. doesapply,it still is onlya presumption

Ifthepresumption whichmaybe rebutted
by
means of evidence to the contrary. Put differently, the final determination of whether the
personactually is an employee, remains subject to application of the judicial test or
approach
discussedearlier.Whatdoeshappen,though,isthattheonustodisprovethe
presumption
nowis on the employer(ie the presumption
shiftstheonusontotheem-
ployerto provethe person is not an employee).

3.3 Non-standardemployment
3.3.1 Introduction been the most common form of employ-
Permanent
andisfull-time
ment assumedemployment hastraditionally
to be the standard or typical form of employmentunlessthereis an
ae Orimplied
indication
tothecontrary.
Apermanent
employee
issomeone
whois
iebas
elwith
date) isthe
intention
usually ofan
foran ongoing
employment
indefinite
period relationship
(atleast
until coming
into
s existenc
theemployee
retiremen
This
ae oe may beterminated
byagreement
orbymeans
ofa
(fair)
dismissa
Inereastn
Two : teowever,
forms
ah eeeresort
isusually
onewhere
isbeing
hadtothe
employee
orworks
“atypical”
new full-time.
formsofemploymen
of non-standardemploymentare fixed-termemploymentandpart-timeemploy-
ment. Fu
thermore,
employers
oftenmakeuseoftemporary
emp
 ad of appointingemployeesto performcertaj
ce,
rityOF9g
security ardening,or instead
o f appointing
nOne
ofthelrcorebusiness,
‘ce to make perso anemployer
9AY
employ
an, Sty,
ns available to perform
pe these
dunech l€g q a
San
al position of fixed-term employees
hipwhentemporary
loyment relationshi ating
m
Ploy
he definition of an ‘employee’ as set outjINS
s are used. in mind that
the ° he algamated
Bever,sn
& Ot rs vAm
bearing In tion. In Siblya rt emphasisedthat whethera lta
nt to the issue of whether or not there has been 4
‘7 broadtermsandtheimo
RA defines an employee in;slation is whether a workerigant
an
missal. Section purpose of claims
dependent co t what category of emp
distinction for the
employee OFan in
pens to be in.
3.3.2 Fixed-term employeeS for a specified period of time,oruni
Fixed-term contract employees are e mployedeither of a future specified event.Season
the completionof a specific project Or the occurrence
es engagedfor a specificoperationalrequir
workers,replacement workers or employe loyees. Casual workers (usuall
ment would be included in this group of temporary emp _term employees.
employed ona dailybasis gardedas fixed
) are also usually reg d are entitled
Ingeneral, fixed-termemployees are‘employees’ asdefinedan n that fixed-term
protection
afforded legislation.However,
bylabour , experience
. has show be ap-
nes areoften
em exposed
toexploitation
intheworkplace-
x] Employees
may tati

pointed
Firstly,ona terms
in fixed-termbasisin a permanent
of contractua job for
: two reasons.
)
| principles, the fixed-term contract of employment auto-
y inates on the expiry of the agreed period of service, upon the com pletion
of
matically termi iry
ject, or uponthe occurrenceof the specified future event. Employ
the agreed project
use fixed-term ;
have against unfairdis’
missal.
Thetheem
would
protect a
aieateee
and the
automatic
employer, just a pre-a
on expiry of protection
terminati
a fixed-term cemployee
ontract
thereis
ee nodismissal
: PYue
permanent
se Sibisene
Pea
against
anunfair
disricest
0Oe iedOa x Sal C i i ' contra
i i

y,employers
often
aiguner
iors= e 7 ploys
anemployee
0”
Eee een diffe rent categories
: of employees 1
ical
ment and mediical aid
ai 7benefits. Often, these benefits are
 yment,
andthecontract
isnotrenewed,
orpermanent
employment
is
ent aie
ee ed:this
isdeemed
tobea‘dismissal’.
not0ion 198B of the LRA, which only
Ora applies to fixed-term employees earning below
t, providesin section 198B(3)-(6)that a fixed-termcontract
;
CEA threshold amoun ,
in writing and may only be for a period longer than three months if the nature of
-which
theemployee
isemployed
isofalimited
ordefinite
duration,
orthe
royercandemonstrate
anyotherjustifiablereasonfor fixingthe termof the con-
ota contract
must
state
what
these
justifiable
reasons
are.
According
tosection
gB(4)
these
include
where
theemployee
a
19 isreplacing
anotheremployee
whoIstemporarily
absentfromwork;

d to endurebeyond12months; J
(c) isa studentor recentgraduatewho is employedfor the purposeof beingtrained .
notexpecte
encein orderto entera job or profession;
orgaining
workexperi
(d)isemployedtoworkexclusively
ona specificprojectthathasa limitedordefined
duration, beengranteda workpermitfor a definedperiod;
(e) isa non-citizen
whohas
loyedto performseasonalwork;
isemployed
for thepurposeof an officialpublicworksschemeor similarpublic

(h)job creation
is employedscheme; } by an externalsourcefor a limited
in a positionwhich is funded
period;.or ee 3 |
(i) hasreached
the normalor agreedretirementage applicablein the employer's
business.
hat employmentin terms of a fixed-termcontractcon-
Section
198B(5)makes it clear t
n of these principlesis deemedto be of indefinitedura-
cluded
orrenewedin contraventio
rve mention.Both dealt with the practiceof some
tion,
Inthis
regard,
tworecentcasesdesef employmentof its employeesto the continued
employers
tolinkthefixed-term
contracts
0 s Civils CC & Another v Association of
supply
ofworkbytheemployer's
client(s).
InPietWe also discussed in
ee8Construction
Union&Others
(2019)
40ILU131(LAC)
(
ieee:labour
broking
below)the
court
pointed
out
that
section
198B
notonlyre-
Sk:.sa contract
tobeinwriting,
but
italso
hastoexpressly
state
that
itisto
ject
or= ee ofaspecified
event,
onthecompletion
ofaspecified
task or
SUDpY
ofWork
b: date.
lainty
The court
ofterm y me
heldthat
client,
afixed-term
given
contract
linked
itsuncertain
tothefuture
duration,
doesnotmeettherequired
cer-
definite
deh duration
Similarly.j
nation. eldthatthecontracts
Thecourthel inquestion
should
beregarded asof
hdusties
Ba ts milarly,
inCentral
Technical
Services
(Pty)
LtdvMetal
&Engineering
roid services ee Others (2017)38ILJ1651 (LC) alabour
broker
(who
athat the
Ae included aclause initsemployees’ employment
contract
tef tah
What
Ofthe
Lee
~Materialise’.
cease
T:OFaSpecific
oncethespecific
partthereof,
work
ora portion
iscompleted
thereof,
interms
whichever
of
being
Hongbethe 'hecourt
found
thattherequired
specificity
inthecontract
asto
aap
the‘projec
Weemen, nating
lect! event
j of
mentioned : contracts
ofthefixed-term eewaslacking
(itee
didnot
in the clausequotedabove).This meantthere was NO
Milan
. ag‘Stmination
ofth©fixed-termcontract.Consequently,
Singof in
defini
the courttreatedthe
Iteduration, 5 ee
 CHAPTER
3 THEMEANING
OF‘EMPLOYEE:

Importantly,
evenin thoseinstancesmentionedabovewhereit js Perm;
-termcontracts
forlonge lo,@qiaSh .
r than three months,such ep,Ploye.

erms
rmanent
basis ane work,
| unless
thesameorsimilar
performing ftthereis4a:justi
;,,... :

enioemerit,
thequality
orquantity
ofwork
performed,
oranyotherCriteria
o¢: Mgt|
service, merit, .

Simi,
ced198B(9)
further
provides
that
employers
must
afford
employees *

terms
ofafixed-term
contract
andemployees
employed basis3 Ryi |
ona permanent
cessto opportunities
to applyforvacancies.
Section Nemp Q
employs
anemployee
in termsof a fixed-term
contract . Ofalove,
for the completion Who
project
fora periodexceeding
24months, ‘ to thetermsof any@PPlicabje
butsubject i SPeg;
3
: :; Fog.
lective
tionforagreement,
topay
eachcompleted the
yearofemployee,
on
thecontract expiry
ofue
calculated eewie
in accorda remun
Section35OFthe.
ur below).
Ee ori. tetoaddress theabuse of
fixed-termcontr
actsinresPectof
vulnerable employees. However,itsscope isnarrowerthan oneBuOKS
* it only applies to employeesearning belowthe BCEA threshold;
—
* it creates severalexceptionsto the generalrulethat fixed-termcontracts May not be
longerthanthreemonths; |
itployees,
doesnot apply-to
allemployers. Ingeneral,employersemploying fewer than 19em.
or employers employingfewerthan 50 employeesduring the first two years of
Operationof the business, are excluded;and, |
it alsodoesnotapplytothosesituations
where
fixed-term
contracts
arepermitteq
by.
any statute, sectoraldeterminationor collectiveagreement.
Perhaps it is more accurateto describethe objectiveof section198Bas to ensurethat
vulnerableemployeesmay only be employedon a fixed-termbasisfor longerthan three
monthswherethe employerhasa genuineandjustifiableneedfor temporaryemployees.
3.3.3 Part-time employees
Full-timeemployeesworkfor
one employer five or six days a week. They do not work for
another empl
ing hours to the business of one employer. In
wer days in a week than afull-time employee
-time employee. The fact that an employee is a
Part-time employee does not change that employee's status and he/she is still an em-
ployee as defined in labour legislation and enjoys protection against unfair dismissal. How-
€ver, similar to fixed-term employees, vulnerable persons are often engaged in part-time
employment through no choice of their own and are excludedfromthe usualsecurityand
Career progression associated with full-time employment.

hours than a comparable full-time empl

accountthe workinghoursof apart-time
employee on the whole not less favourab ly
employee,
thana comparable
anemployer
full-time
musttreat
employee
a Part-time
doingsa

_s
 CHAF IER S THE ME
EMPLOYE
E’

thesameOF
similarwork,unlessthereisa justif
cgson
includes
d. seniority,
experience
An employe orlength
e 7 notdoiNgSo.Ajustifiab|
workperformed. ployermustalsoprovidea part-t orthequalityor quanti,
~~
ing
and
skills
development
onthewhole
notless
favoy quantity
of
ble to
acomparable
full-timeemployee.
A comparable
full-t
game
type
game ofemployment
oFsimilar
work relationship
inthesame asthe
aspart-time
workplace the or

- gsitprovides
to full-timeemployees.
Notethatsection198Calsoqoes not apply —
to an employee earning in excess of the BCEA threshold:

divisionOFdissolution,for any reason, of an existing business);

toanemployee
whoordinarily
workslessthan
24hours
a onthforanempl
«durin
gan
employee’s
first
three
months
ofcontinuous
employment
with
an3aeor oyer.

3.3.4 Temporary employment services

A temporary
employmentservice (TES), also called a labour broker,is describedin sec-
tion198oftheLRAas ‘anypersonwho,for reward,procures
foror provides
toa client
otherpersonswho perform work for the client and who are remuneratedby the temporary
employment
service
. Organisations
oftenusetheservices
of a TES,eitherto provide
personsto perform non-core functions, or, in times of need, persons who perform core
functions.
For example, an employer may use a TES to provide security personnel in its
workplace(a non-coreactivity). A hospital, faced with a shortageof nurses,mayapproach

aTEStoprovide nurses onanadhocbasis.

Usinga TES brings with it two realities. Firstly, it gives rise to a triangular relationship—
theTESandtheclientconclude a service agreement in terms of which the TES will provide
ileSto
the
will client
have toperform
agreements work
in and
place forthe
with which the
client
persons whopa
will be providedto itsclients

ee the
to
work.Lastly,
when calledontodoso,these persons
will
actually
dothe
work
slifercioftheTES,but will
bepaid bythe TES.Inslightly
different
words,
theCon-
Services
Poi
Advice
Offic describedtheuse ofa TES asfollows
y) Ltdv NationalUnionof Metalworkers intheimportant
cas®ofAssign
of SA & Others(CasualWorkers
sks
Reise sAmicus Curiae)(2018)39ILJ1911 (CC)andalsoreferred
tosomeofthe
between the TES and the
angular relationshinov;
lent
for
anity
aoe exists
wever, the tosplit
functions the
for functions
which the of
the
TES employer
is respons
ible seldom relate to the
d managethehuman
Potion...
aCtual
Ofma
Work
weom
o POnent ofemployment,
e@em ployee.
Their ‘ while
: primary theday-to-day manag
responsibilitiesare to pay 4"
ly.Theclient
is
k allocationsand
ement, wor
 1.te tothebusiness
oftheTESexcept
asa commodity
.. 5
yy
7
ons on the ‘books’ of the TES)in y,it
ame
| <es not
nswhoactuallydothework(thepersment are concluded with the TEs2‘pr Car
MEY
aeposition.
.
places Although
theperso thelr
: formal
lientcontracts ofemploy
in theclient’s
|
: to the supervision
workplaceand subject |a
Ofthe
| |

| beseenas“working
for”ee
p between
theclientand the personplacedin itsworkpl
; Ce

| ifbythe
oneassesses
TES thethe
relationshl
against criteria
discussed
above fortestingwhetherornotanemplo
relationship
exists,onewouldseethatoftenthis could be viewed as an employment
rela
tionship.
Their
actual
‘employment
relationship’
iswiththeclient,buttheirformal
empl
mentagreement
is withthe TES.Oftentheir wages are lower than the wagesofthe
| permanent oftheclientandtheirsecurityof employmentisjeopardized
employees
inAssign
Services,
thecourt
alsoreferred
tothelegalpositionthatexistedprior
to the
9015amendments
to the LRAand discussedsections 198 and 198A of the LRA (at pare

graph79) —
scate. Its purpose was to protectthe
‘{Bleforethe 2014 Amendments,the TES existed to obfu
d to relieve them from having to con-

) a_
emse ae ofemployment relationships
3 an
veswiththe humanresourcesneeds of people working for them. The TES is incen-

|
| lower
wages
for
tivised “Bacdernole
tooffer- Be
aseo
lower
relationships
exist, dedthe
prices
i He
Seance
ees client's
contract,
circumscribednecessarily
bytheLRA
but, translat
while 10
triangu
|
y anddo contractout of their employment obligations in re-
spect of placed employees.’

s, in | rms of :
This precarious position is, i
subsections
198(2)-(4)— general, affirmed.by
section
198oftheLRAInte
¢ Aperson whose servi ces h , pape et tcc

deemed to be the em ployee

ave
been
procured
|
for,
orprovided
vi to, acl by a TES
_aclient x's
yeeoftheTES,andtheTES isthat|person’
ery ip
n’semployer. (Note
(NO™
in thisregard,that‘[i]t
[i]tisiimmaterial,
forthe
3 purposesof section 198(2), whether 4?

ara yb
- Aperson
who isan oe)
Assign Services at
“come theTES’s employee.’
—$°
: ge
saa ofclient
thatperson
areOijoitcontractor
isnot
anempl
ooandcontravenes
the
aintand severallyifthoyeeofa TESporleme
liable ee
a) a collectiveagreem
ent e TES»IN
s a bargain; j re :
andconditions
ofemp!eed IN Spect
ofanyofits
(b) the
(c) a binding
BCEA;arbitration award
pee that r gaining counci
cil that regul
EA;or gulatestermsand gulatesterms
Nd conditi Ons o
(d)
0d) a asectora | determination made in te
IMs Of the
not of the cllent. Yet theypersons
What this means is that
es
onthe‘books BCEA
render their services : ofthe TES a
subject to the wishe ean ae
8oftheclient.
Furthe @ client
‘more ang their. ovees
d ofthe TES
Continue
jointliabilityof theTESandclient,it doessoonlyjn while
include joint liabilityyfor
{ unfait
fabour
Bracticgg,yInlimited
untalr cj On198
rou prowiae
ideaeisin
. discrimination
ee:Neforthe
ps coat
OeNy I"dismiss.
Not: A
 : or, ee eee,
% %

be is

CHAPTER 3 THE MEANING OF ‘EMPLOYEE’

———

This has, in the past, led to many organisations opting to use the services of a TES to
avoid having to appoint its own employees. In addition, temporary employment services
often tried to use two strategies which further prejudice such employees. Firstly, we have
seen that a person who provided his/her services through a TES as an independent con-
tractor did not become the employee of the TES. In order to exclude its own potential
liability, a TES may thus have been tempted to style its employees as independent ?
contractors and, by so doing, to exclude its own liability in terms of labour legislation.
- Secondly, it became a standard practice for a TES to include in the contract with its em-
ployees
a clause
stipulating
that,should
theclientnolonger
wanttheemployee
toperform
‘the work, or the service agreement was cancelled, the contract between the TES and the
employeewouldautomaticallyterminate(ie therewould be no ‘dismissal’and the possi- if
bility of an unfair dismissal claim against the TES was eliminated). |
The amendments to the LRA introduced in 2015 attempted to address some of these
shortcomings.But our courts have also had occasion to deal with these practices and it is
clear that their decisions manifest an intention to protect the interests of the employees of
4 TES. One example of an attempt by a TES to style employees as independent contrac-
tors is to be found in FMW Admin Services CC v Stander & Others (2015) 36 /LJ 1051
(LC).In this case, the TES was in the business of providingsecurity guards to their clients.
This was done in terms of the following, rather elaborate, scheme —
« The individual person (hoping to work as a security guard) tendered for the provision of
security services directly to the TES’s client. The tender was designed to appear to be
thatof a completelyindependent
third partysecurityserviceprovidertenderingto a
client for such services.
* The company (the client) to which this service was provided then accepted the tender,
and an independent contract was then concluded between the company (the client)
and the so-called ‘self-employed security officer’. The contract was described as an —
independentservice agreement in terms of which the individual security guard con-
tracted to work as a security officer without any employment benefits or protections.
* Added to the above, the company (the client) with whom this security officer con-
tracted,then rented to the security officer all the equipment and the uniform necessary
for the security officer to do his/her work. This rent was deducted from the security
Officer's remuneration.
* Thesecurity officer was also required to sign a ‘declaration’stating that he/she exer-
cises his/her ‘right’ in terms of section 22 of the Constitution to render services as a
self-employedsecurity officer and that the provisionsof the LRA and BCEAwere not
applicable to his/her service.
‘nothing but a sham to seek to
NotSurprisingly,
€xtract the
[theTES] court
and described
its clientsfromthis
thearrangement
as
employment } andthe benefitsand
relationship
Protection
then bestowedon employeesin terms of employmentlegislation.This cannot
beabusiness
model
thatserves
to beprotected
.. .’(atparagraph
59).Furthermore
(at
Paragraph
62),the courtsaidthe scheme‘is unlawfulandat oddswiththe constitutional
a It seeks to avoid the protectionsaf-
d BCEA. It directly undermines se-
by employment legislation such as the LRA an
Curity.. lear that whenever a TES places |
aedemployment
Nce.on ...’The
independent courtalso
contracting made
itthe
ccourtwill
arrangements, WYinvestigate itiisa oe4
whether
 doing, of course, the principles digg
true independent contracting ar rangement. InsO
earlier in the chapter about how
to distinguish
be tween
independent
contractors
Sue
Sh,
loyees will apply with equalforce. ane?
ploy pply n clauses’is concerned, twoPOssibiy
As far as the practice q
of ‘automa‘ibterminatio
scoop oF ane decision in Nape v INTCS Co, ig
present themselves. Firstly, along theC),
Nnthepossibility
‘nityexists
that
theTES
may
Y;Prov;
Ora
Solutions (Pty)
Ltd(2010) 31ILy2120 (L) erfeir
in its agreement with its individ ual employees th ) continued
employment
isinei
Isobe includedin the serviceagreementbetwee,th
the wishes of the client (this may a nt then require the employee to be removed, this ma
TES and the client). Should the clie
either be declared to lead to an automatic
termination
of the agreementbetweentheTE
and the employee (ie there is no ‘dismissal ')oratleast bedeclared toautomatically Give
the TES just cause to terminate the relations
hip between the TES and the employee ie
there is a dismissal, but it is fair). However, the Napee case makes it clear that a clause in,
cas
contract
between
a TESand
aclient which
allows
theclienttoundermine
theemployee'
right not to be unfairly dismissed would be against public policy and the TES should notbe
allowed to invoke the clause to justify dismissal. Only if the client’s demand for the removaj
of the employee was lawful and fair may the employer (the TES) rely on operational re.
quirements as a ground for dismissal. The same principle would apply where clauses to
this effect are included in the agreement between the TES and the employees themselves, _
~. Secondly, the continued employment of the employees of a TES may be made subject
to the continued existence of the commercial agreement between the TES and the client

(ieaAe OESofemployment
isconcluded
subject
toafuture
event
—the
termination of the commercial agreement between the TE
i

: stated
that
itisnot
necessarily
a‘dismissal’
should
anautomatic
eanihatien
ne f
premised on the continued existence of the underlying com
:
the
TESand
theclient.
Inthe
words
ofthe
court
(at
baceeerane
re betwee
‘In my view, it does not necessarily follow that in all cas €S an automati a ee
onanevent
contained
inafixed-term
contract
ofemployment
GeelSited
ae withclause
would be necessary to determine whether in the cir
; : ©
based
invalidi
ity. It
circumstanc
was
intended
tocircumvent
the
fair
‘Mor
andtheConstitution.
dismissal
Some
obligations
Pou 4Particular
oftherelevant
casetheclause
considerations,
inmyvi n theemployer
bythe LRA
on tne

i . . . ew, we
wording
ofthe
automatic
termination
clause
and
the
context
ofthe
antic
=reement:
IdInclude
theprecise
ship betweenthe fixed-termevent and the purPose of the contract
«2 thNerelation-
w;

totheclient
whether
theclause
tochoose and
is usedto unfairly
pickwho
istorender
thesee with
targeta Particular
theclient
wheth
ale
e SundertheS€rvice oritis left
employer;
list whether the
is not exhaustive. event
Each isbased
case m onProper
economic
ees by
m nseither
the
aagreement:
and co

ust
bedecided
onIts
circu
Stances
oe.onsideration
Rn 8sNot‘Ollow Me
for ; the
gitimate
terms,
5ould
auto-
 CHAPTER 3 THE MEANING OF ‘EMPLOYEE’

priorto the 2015amendments andthat section198B(whereit applies)nownotonlyre-

quiresa fixed-termcontractto be in writing,but it alsohasto expresslystatethat it is to
terminateon the occurrenceof a specifiedevent,on the completionof a specifiedtask or
project,
orona fixeddate(seethediscussion
of section198Babove).
Inthisregard,
the
court
be construed
madeit to
clear
equate
that to
a contract
the occurrence
linkedto
ofthe
a ‘specified
futuresupply
event’,
of‘the
work
completion
by the client
of a‘cannot
speci-

fiedtaskorproject’
or‘afixeddate’.
. . .Thisissointhata‘specified
event’,
‘thecompletion
of a specified
taskor project’or a ‘fixeddate’doesnotconstitute
a possibility
thatfuture
contractsmay not be suppliedin futureby an employer'sclients.This remainsa possibility
_andnothing
morethanthat.It isbynomeans
a specified
event
which
infuture
willarise, 9.

noris it relatedto thecompletion

of a taskor projector a fixeddate,butis anoperational a

riskwhichmayoccur,one underwhichthe businessoperates’(at paragraph25). Seealso

the discussion of the Central TechnicalServices case in the context of section 198B

above.
Giventhe precariouspositionof employeesin the contextof labourbrokerageandthe
factthat manyemployeesin effectworkedpermanentlyfor the clientsof a TES, it is not
surprisingthatthe legislatureintervenedby insertingsection198Aintothe LRAwitheffect
from1 January2015. This sectionseeksto protectvulnerableemployeesas it only applies
to employeesearning below the BCEAthresholdof R205433.30 per annum.
. Firstly,the section distinguishesbetween a ‘temporaryservice’and a service which is
not temporary. A ‘temporary service’ is defined to mean those instances where an em-

ployee— for the TES’s client for a period not exceedingthree months;
» works
» worksas a substitutefor an employeeof the clientwho is temporarilyabsent;or ,
» works in a category of work and for any period of time which is determinedto be a
temporary
service
bya collective
agreement
concluded
ina bargaining
council,
asec-
ifthe
toral
service
determination
by the employee
or a notice
to the
published
clientis by
indeed
the Minister
temporary,
of Labour.
the employeeremainsthe

employeeof the TES and the rules discussed above apply. However,if the service pro-
videdby the employee to the client is not temporary (for example it is longer than three
monthsand the other exceptionsdo not apply)the situationchanges.Then, in termsof
section
198A(3)(b),
theemployee
is deemedto betheemployee
of theclientof theTES
andthe client is deemedto be the employerof the employee,for the purposesof the LRA.
And,unlessthere is a valid fixed-termcontract(seethe discussionof section198Babove)
theemployeeis deemedto be employedon an indefinitebasisby the client.Furthermore,
section198Astates that an employeedeemedto be the employeeof the client must be
treatedon the wholenot lessfavourablythan an employeeof the clientperforming the
same
seniority,
or similar
experience
work,
orunless
lengththere
of service,
is a justifiable
merit,orthe
reason
quality
forordifferent
quantity
treatment
ofworkperformed
(suchas —

—these are listed in section 198D).Section198A(4)also makesit clearthat the termina-

tionbytheTESof an employee'sservicewith a client,whetherat the instanceof theTES
ortheclient,forthepurpose
of avoiding
theoperation
of theabovementioned
deeming
provisionor becausethe employee exercised a right in terms of the LRA, is a dismissal,
Subject
totherequirements
offairness.
Notethatsection198(4A)
nowprovides
thatpro-
ceedings
maybe institutedagainsteitherthe TES,or the client,or boththeTESandthe
oethis
despite
the
fact
that
theemployee
may
bedeemed
tobethe
employee
ofthe
Client
only, & ier

89
 Cie
ONee es
‘EMPLOYEE | =>
TER
3 THE
MEANING
Sl hal : oo
CHAP ee eee
ith by the Constitutional Court in SsjEe
a

Inthis
regard,
one
important
issue
=:
vices concerned the question as to t
f Se Weg
deems theemployee tobe the employee©
remained whether that employee also nein
theemployee
of theTES(itisQUite
,
sible
tohave
two
employers).
The
court
sla aTES,
it(the
client)
becomes
thea
betheemployer
employer
ofaperson
placed
with
it Aratheclient
of thepersonso placed.
is,forexample,
Poteng
Thismeals. issalorbasedon an allegationthat
liable
unfairfor
anyclaims
labour based
practice onan
hasbeen alleged
une
committed person
againstthe theplaced
with
TES and it.Howeve
the t:
employ,hig
does
notmean
thatacontract
that
might
exist
between
ffect.
TheTES
could
at Geig
necessarily
invalidated
oncethisdeeming
provision
takes
ce stated: ‘while
th:
tobeliable
interms
isthedeemed
ofthe
employer,
contract.
Asthe
theemployee
court
may
inAssign
stillclaim
eitheTESa,|Wigsther
against
rene
Cis
stillacontract
between
theTES
and
theemployee.
This
iseminently
sensible
Conside
that the TES may still be remunerating that employee’(at paragraph 61).
Finally,the pointshouldbemadethat,if anemployee
is deemedto be the employee
of
the client,thisisionlyforthepurposes
liable for
oftheLRA.
Thismeans
thattheclientis potentially
|

that legislation.
3.4 Other Categories of employees
In common parlance, one ofte
time employees, contract workers,

|: between
and fixed-term
employees,
their employers
werediscussed; yees
ioUS andempl
section,
In this section, attention will be pai
their status as permanent, fixed

| willbethatallemployees, ofthecateemployees.
regardless i Again
athePoint
’.eSpective
of
i evident from the dj

follow,
isthat
employee falls.the
level
ofprotection
mayvary,
depen
ding
on 8 also
thed bylabour
Cate “Napters
to
|
|
Probationary employees
It is generally
accepted
thatanemployer
INWhich
mayexpectanempio.
the
! period.
During
this
initial
period
ofthe
employee’s
Service,
skills
<€toSe abe
| The
employer
may alsowish
todetermine
howcompatible
thend
Abilities
ate«tionary
, ployees,
tablish clients,
factorsmanagement
such and
theworkplace
asdiligence,
character ingeneral
The
angPersonality
Oy ker3S
With
ASsQq
©©MPloye;
the purpose of a probationary period is to Provide the “Cou
arti :
another and to determine whether they can co Parties With an Sh ave
Ntinue
Worki oe Portun
periodof timein a healthy
employment
relationship.
¢ ) NgwithSac
 CHAPTER 3 THE MEANING OF ‘EMPLOYEE’

The
employer
may
not
use
the
probationary
period
toavoid
treating
employees
see
The period of probation is generally required to be determined in advance and to

reasonable
length
(this
willdepend
onthenature
ofthejobitself).
Normally,
thegroun
for
dismissal
ofaprobationary
employee
will
relate
tothe
employee's
capacity
orae :
dothe
job.
Item
8(1)
ofSchedule
8tothe
Code
ofGood
Practice:
Dismissal
requires
t7
during
theprobationary period,theemployee's performance should beassessed ande
employeeshould,where appropriate, begiven reasonable evaluation, instruction,
training,
guidanceor counsellingin orderto allow him/herto rendera satisfactoryservice. During or
oncompletion
oftheprobationary
period
oneofthree
things
mayhappen
—thehe
~ee'spermanent
employment
maybeconfirmed,
theprobation
period
maybe ee
subjectto further conditions, or the employee’s performance may be unsatisfactory an
his/her services terminated due to poor performance.
At the outsetthe probationaryemployeealreadyhas the expectationof permanentem-
ployment,
butdoes
nothave
thesame
degree
ofsecurity
asapermanent
employee.
As
will be seenfrom the discussionin chapter eight below (dealing with dismissal for incapa-
city)
itiseasier
todismiss
aprobationary
employee
than
apermanent
employee
forpoor
performance.
Inallother
respects
(egprotection
against
dismissal
formisconduct
orop-
erational
requirements,
protection
againstunfairdiscrimination
or unfairlabour
practices)
probationaryemployees are, in principle, protected to the same degree as permanent
employees.
Senior and junior employees
It is possiblethat some people performcertainfunctionsthat one would not normally as-
sociatewith the functions of an employee. Because of the functions
exercised by senior
managersone may think that that they are not employees. A manager may, for example,
have thepowerto bothappointanddismisspeopl
differently? factory
e. Should
floor,
this
orpowerful
shouldhe/she
senior
be
manager
treated
be treated in the same way as the workers on the

In spiteof the fact that senior managerialemployeesmay act more like employers,for
themostparttheystillareemployees
for purposes
of theapplication
of labourlegislation.
Even a director of a company may a
Iso be an employee of that company. In Protect a
Partner
v Machaba-Abiodun
& Others(2013)34ILU392(LC)thecourtmadethefollowing
observations
aboutdirectorsas employees(at paragraphs46-49)—

€ entity, the possibilityarises that they may be its

employees.Our courts have on several occasions held that directors should be regardedas
employeesin appropriatecircumstances.It is a generaland well establishedprincipleof lawthat
4 companyis a separatelegal person,and there is a fundamentaldifferencebetweenits rights,
duties
andacts
tothose
ofothers,
including
itsdirectors
and
shareholders.
Ingeneral,
there
are
Sssentially
twotypesof directors,morecommonlyknownas non-executive
andexecutive
direc-
lors. The directors of an organisation ar
e thepersons
whoarethemembers
ofitsboard.
An
€xecutive
director,
“mployee,
sometimes
officer,
also
significant
referred
toasan“inside
shareholder,
orsomeone
director”
similarly
isadirector
connected
whoisesa
totheorganisation.
 often
have
special
itsmission.knowledge
Typical ofitsinner
executive
directorssitet
would s chief
include:otexecutive
as heeaePi
Sop
Cer
Whovigy
MayS
Sn‘
the
chairman
orchairperson
ofthe
board,
other
executive
ae eHeatSuc
‘_
financial
officer
iveor
anyother
directordirector
isusuallyseatpleaeTd tieEee:
referred
to ‘iGee
0Catg
Not
o
Bea
esyocbyevenda
with
the
entity
orthe
organisation,
fadoes
7 Aally
reran:
ofitsstakeholders.
A typical
example
would
beBiatregtor
Ww
YISpresident
ofafirm
OFeng
different
industry.
The
anemployee question
willalways as
towhether
becoloured adirector,
bythecontextalbeit
°repeat
inwhich
the ofParting
question direc
thedirectop
¥
Status
hasarisen
and
the
answers
willhighlight
conflicting
factors
that
mayOperate
inany
gon
Situation.TheCourt
hastoconsider
therelevance
ofallofthesefactors,decide
What
y
Should
be
given
toeach
ofthem
and
ate conclusion.’then
balance
one
agains insttheothertoarriy €atan
appr
"Sigh

The
court
then
applied
the
approach
established
Agencycase(discussed inthe
State
Information
Tech
earlierinthischapter
andbasedoncontrol,Integration
and¢
nomic
dependence)
employee. tocome
tothe
conclusion
| that
thedirector
inquestion
was
infact
an| ; i STO

BCEA regulatingworkinghours(seeChapt
198B and 198C of the LRA regulating non O
lier in this chapter); and, section 200A of the LRA creati
employee (also discussedearlierin this
as a general rule,
—_ 2 rE Pt SISO
Ke ee oO oOLT
+ or... |
; veg j

CHAPTER 3 THE MEANING OF ‘EMPLOYEE’

harassmentcases) to the CCMA for arbitration. Employees earning above the threshold
must, as a general rule, refer their unfair discrimination cases to the Labour Court (see
chapter 12 below).

Public servants and private employees

As pointedout in chapterone, public servantswere excludedfor manyyearsfrom the
protection
of generallabourlegislation.
Rather,
publicservants’
employment
wasregu-|
lated by legislation specifically tailored for them and, in addition, they were largely reliant
- on the generalprinciplesof administrativelaw for their protection(the publicemployment
a relationshipwas seen as an administrative law relationship— ie a relationshipwhere pub-
~ fic power is exercised).
Today,public servants have access to, and may rely on, the same labour legislationas
other employees. This is in conjunction with legislation specifically applicable to the em-
ployment
of publicservantsin general(suchas the PublicServiceAct of 1994andthe
regulationsissuedin terms of that Act) as well as legislationthat might apply to the em-
ployment
of specifictypesof publicservants(suchastheSouthAfricanPoliceServiceAct
68 of 1995or the Employment of Educators Act 76 of 1998). As will also be clear from the
discussionin chapter 21, the Constitutional Court effectively removed the possibility of
publicservantsrelying on the principlesof administrativelaw in the decisionof Gcaba v
Minister for Safety & Security & Others (2010) 31 /LJ 296 (CC). Having said this, section
158(1)(h)of the LRA gives the Labour Court the power to review anythingdone by the
Statein its capacity as employer on any ground permissible in law. Although the law in this
contextis still developing, it does seem to create an additional ‘right’ available to public
servants— a right which is to be found in the principle that decisions by the State (also
regardingemployment)have to be, at the very least, rational. It should also be notedthat ©
the processof collective bargaining in the public service is regulated in a specific way —
througha system of public service bargaining councils. This system is discussed in more
detail in chapter 17.

3.5 The identity of the employer

Itis importantto be able to identify who the employer is in borderline or difficult situations
-— in practical terms, if an employee feels his/her rights have been infringed, the correct |
employer(legal entity) must be identified as the respondent in the employee's case. For |
example,
in an unfairdismissalcase,the ‘employee’will allegethat he/shehasbeenun- |
fairlydismissedand the ‘employer’may argue, in response,either that there was no em-
ploymentrelationship or that another company or close corporation was in fact the
employerof the employee. Sometimes, this argument arises from the fact that the employ-
ee’scontractmay be with a shell company, but the employee will actually perform work for
a relatedcompany (where the business's real assets are located).
Whileit is usuallyeasy to identify the employer and while it is possibleto have morethan
oneemployer,it is sometimes necessary to ‘lift the corporate veil’. This means that the
questionas to who the employer is will be cqnsidered with due regard to all the circum-
Stancesto ensure equity and justice between the parties. This, in turn, means that the
CCMA
ortheLabour
Court
willconsider
thereality
oftherelationships
andconsider
who
iherealpartiesare, irrespectiveof the mannerin whichthe partieshaveusedcompanies
“Nd
close
corporations
tocreate
whatappears
tobe
a different
relationship. )

a: i Nee me
 CHAPTER
3 THE
MEANING
OFEMPLOYEE:
Per Ree ere

example,
thecourt
examined
thequestion
ofwho
thetrue‘employer’
Was in Lac
transfer
or saleof a business.
Theold employerhad pret
prior
Shown
toto
the
be
sale
theof
real
the
employer,
business
ctronics
ers
ncil
(2013)
for
so
the
(Pty)
as
34
Furniture
Ltd
to
ILy
relieve
&
96
Others
(LAC)
Man
theand
new Endedtooftrench
il National
employer
has
beenUnion
lifteg
jt 5

InbothBargaining
Cou
UKDMarketing
CC&Oth
OF
SA&Others
y LeeEle
 - SEES"O_O -

_ di56
SO be
SE i EE
Oe Ryot
CHAPTER 3 THE MEANING OF ‘EMPLOYEE’

Fe adates
* ach ae-pe
are
met the
persons
or
ofthethe
Acteffect
or of
anytheir
acts
oromissions
employment
law. must
Ifallthe be
todirectl
requiremen
in
bay failure
tocorily
employment
law.’ CthosSe be “employers”
Obligations andtherefore
of an employer jointly
interms and
ofthe severely
oranyliable
Act other

Thecourt (atparagraph
27) also pointedtoThe Memorandum onthe objects oftheLabour
RelationsAmendment Bill of 2014 which mentionedthat the section was inserted —

peeee .
to prevent
simulated
arrangement
or corporate
structures
thatareintended
to defeatthepur-
poses
oftheLRAoranyotheremployment
law,andtoprovide
forjointandseveral
liability
onthe
part
ofpersons
found
tobeemployers
under
this
section
forany
failures
tocomply
with
anem-
ployer's
obligations
under
theLRA
oranyemployment
law.
This
isparticularly
important
inthe
contextof subcontractingand outsourcingarrangementsif thesearrangementsare subterfuges
to disguisethe identityof the true employer.’
[etiam
areen

However,in Buffalo Coal the court also made it clear (at paragraph28) that any party who
wantsto rely on section 200B to hold an employer liable, must show two things: firstly, that
the personsare carrying on or conductingan associatedor relatedbusinessby or through
an employerand, secondly, that the intent or effect of doing so is or was to directly or
indirectlydefeat the purpose of the LRA or any employmentlaw. |
Of all employers, the State is the largest single employer.We have already seen that
before1993,publicserviceemployeeswereexcludedfromthe ambitof labourlegislation.
Since1995,employeesof the State also fall within the scope of the LRA. But the public
serviceconsistsof peopleworkingfor nationalgovernment
and nationalgovernmentde-
partments,
ontheonehand,andprovincial governmentandprovincial
departments
onthe
other.
in MECfor Transport:Kwazulu-Natal& Othersv Jele [2004]12 BLLR1238(LAC)the:
issuearosewhetherdifferentprovincialdepartmentsconstituteddifferentemployers.The
employeeconcernedwas employedin the provincialDepartment of Health.Heappliedfor
a higherpostin anotherprovincialdepartment, the Departmentof Transport,
butwasun-
successfulin his application.He claimedthat his non-appointment
constitutedan unfair
labourpracticerelatingto promotion(seechapter11below).It wasarguedbythe Depart-
mentof Transportthat therewas no employmentrelationshipbetweenthe applicantem-
ployeeand itself. This meant that there could be no unfair labour practice,becausean
unfairlabourpracticecould only be committedby an employerin respectof its own em-
ployees.
TheLabourAppealCourtanalysed
the relevantprovisions
of theConstitution
andthePublicServiceAct and cameto the conclusionthatemployeesof provincialgov-
ernments
are employeesof the State,irrespectiveof the statedepartmentthey work for.
The
State,thecourtheld,isa singleemployer
andthismeant
thattherewasanexisting
employment
relationship
betweentheemployeeconcernedandtheState.Thismeantthat
theemployee’s
disputeabouthisnon-appointment
gaverisetoa dispute
aboutpromotion
anddisputesaboutpromotionfall withinthe scopeof unfairlabourpracticesas definedin

Section
186(2)of the LRA. 4
 CHAPTER 4
MINIMUM STANDARDS LEGISLATION AND
OTHER SOURCES OF TERMS

4.1 Introduction — j

ec
The
employers.
discussion
thus
ee
quently,
far
has
while
highlighted
eee
the
power
contract
two
tokey
balance
ofemployment
features
the
superior
ofmodern
remains
economic
labour
an
important
law.
power
Most
of
sourc
their
em-
-
of rights
rights ee
legislation
only isies
thatnot
seeks to(see
enough to the
ensure discussion
properly
the fair
protectinemployees.
chapter
treatment twoabove)
hasreliance
of employees.
This One
led to on contrac
particular
the adoption
areaof —

concern is in relation to an employee’s terms and conditions of employment. It includes

issuessuch as the employee’s pay and how the employeewill be paid, other monetary
benefits(suchas bonusesand differenttypesof allowances)basicworkinghours,whether
the employeemay be required to work overtime,overweekendsand/oron public holidays,
what leave the employee is entitled to, how much notice is required to terminate the em-
ployment
relationship,
whatpayments
theemployee
isentitled
toontermination
ofservice
and so forth. |
Labour
itis a clear
legislation
goal of
tries
labour
to achieve
legislation
thistoinpromote
one of fair
twoterms
ways.and
It does
conditions
it directly
of employment.
throughthe

adoption
of minimumstandardslegislation.
Minimum
standards
legislation
laysdownmini-
mum standards of employment and prohibits any downward deviation from these stan-
dardsin,for example,a contractof employment.
Assuch,minimum
standards
legislation
imposes a direct limitation on the freedom to contract. The two most important pieces of
minimum
standards
legislation
currently
inforce
aretheNational
Minimum
Wage
Act9of
2018(NMWA)which regulatesthe levelof minimumpayworkersare entitledto, andthe
BasicConditionsof EmploymentAct 75 of 1997(BCEA)whichregulatesminimumterms
andconditionsof employmentother than minimumpay.Thesetwo statutesalsoallowfor
so-called‘ministerial determinations’ and ‘sectoral determinations’issued in terms of the
BCEAto providefor specificminimumstandardsof employment
for certaincategories
of
employeesor employers, Or certain sectors of the economy.
Labourlegislationalso promotesfair termsandconditionsof employmentindirectly.One
clearobjectiveof the LabourRelationsAct 66 of 1995(LRA)is to promotecollectivebar-
gainingthroughwhich trade unionstry to concludecollectiveagreementswith employers
regulating
terms and conditionsof employmentof their members.The LRAdoesthis
througha combinationof mechanismssuchas the protectionof freedomof association
(the
right
tobelong
totrade
unions),
therecognition
ofso-called
‘organisational
rights’
of
trade
unions
(inorder
toensure
effective
trade
unions),
the
protection
ofthe
righttostrike
(toback
uptheprocess
ofcollective
bargaining)
andtherecognition
thatcollective
agree-
ments
are
Vidual amore
contract important
source
of employment. ofterms
Collective.and
conditions
mayof
bargaining employment
take than:levels,
placeat different De
97factory),
enterprise
level
(inrespect
ofallthe—
namely
atplantlevel(inrespect
ofa specific
 discussed
inmore
detail
inchapters
13to19
below.
. Fornow,itieee
is importang2Qainj
to bear,
hi:

Sented
bytrade
footing.
unions
Secondly,
areinarule,
asageneral
position
tobargain
collective
agr
wibe
secede
bueesadi,
as"More
= ' 2 ualontrac
Quy
employment
BCEA inpermits
the
notonly determination
ofof
terms
thevariation and
conditions
itsminimum o ae
standards oe
fOUSN Thirty
the
Collective
Adres
ments,
butdoes
sotoamuch
greater
extent
than
through
individual
contracts
ofe Ploy
ment.
Lastly,
much
more
leeway
isafforded
todeviate
fromminimum
Standards
legis
council
agreements
than
other
types
ofcollective
: agreements.
ation

4.2.1 The goals of the NMWA

The NMUWACame into o i

sponsibilities
the include
Minister
of annual
Labour reviews
about ofthe
leve|
adjustments
to ofth
it(See M3on
of. Islon)
¢apter Whose
re-
M€ndations
to
sections
6 and7).TheNMW
Commission
alsohasimportant
res readwith
of the BCEA, notably to Investigateand Make recommedation SIbil Es in terms
Labour
about
thepromulgation
ofSectoral
determination
in termf insterof
It is also important to bear in mind that the NMWA ame int ratio_
drop of two realities. Firstly, that the BCEA never Prescribe
) Scribed (and stiy ; against i.
MStth
wage
tobepaid
toemployees.
The
idea
ofaNMWis
thusNove] aie
Secondly,
thatthereareother
sources
ofterms
andConditions
ofe
sectoraldeterminations
andbargaining
council
agreements
thatdo
ribed in the past) minimum wages 4for employees+hat the
a eilethe
prescribing
ofaNMWisanove|
Concept,
the
ideaYCOVver ;

aA ce
ofaMinimum
Cong;
ie
98
_ «
» members
‘volunteer’,
of the
defined
SouthasAfrican
someoneSecret
whoService; workeeanr
performsand TS
Py and
for another person ADATR
who
ieOa.
ah
; ee
does:
ny“ ~-"),
- e
CHAPTER 4 MINIMUM STANDARDS LEGISLATION
_

This, of course,
minimum wages,raises
whichthe; question
will about in
be discussed the4.2.4
interaction
i between the different sources of

4.2.2 The scope of the NMWA

Section2 of the NMWA declares that the Act appliesto ‘all workers and their employers’
except — |
« members of the South African National Defence Force:
« membersof the National IntelligenceAgency; 3

not receive, or Is not entitled to receive, any remuneration for his/her services.
This
provision
IS.
acurious
one
foratleast
tworeasons.
Firstly,
wesawinchapter
three!
fined
aboveinthat
the LRA,
the trigger
the BCEA
for the
and
application
the Employment
of labour
Equity
legislation
Act 55 is
of that
1998of(EEA)).
‘employee’as
The NMWA
de- |

now
introduces
theconcept
of‘worker’,
butstilllinks
application
oftheActtothe‘worker's
different,
‘employer’.
or Itwhether
is not clear
the drafters
whetherofthe
theconcepts
NMWA simply
‘employee’and
wanted to‘worker’
use a simpler
are meant
or a to
more”
be

‘democratic’
pre-empt
anyterm.
possible
It may
legal
also
arguments
bethatthe
orcontractual
drafters
deliberately
constructs
chose
employers
theterm
may
‘worker
relyonto—
circumventpayment of the NMW, including argumentswe have seen in the context of the
definitionof ‘employee’ in other pieces of labour legislation.As discussedin chapter three
above,
4 contract
these
between
arguments
employer
aroseand
predominantly
employee andin the
all were
context
answered
of the existence
decisively,
andbylegality
virtue of -

the
in question.
broadapplication
It is therefore
of section
debatable
23(1)
whether
of thethe
Constitution,
introduction
in of
favour
the term
of the
‘worker
employee
was

necessary
andwhetherit actuallychangesanything. 3
Secondly, section 1 of the NMWA defines a ‘worker’ as ‘any person who works for
anotherand who receives, or is entitled to receive, any payment for that work, whether in
moneyor in kind’. This definition differs from the definition of ‘employee’in the LRA in at
leastthree respects. Firstly, the phrase ‘excluding an independentcontractor’is not part of
the definition of a ‘worker’ in the NMWA. Secondly, the definition in the NMWA refers to
‘paymentinstead of the phrase ‘receive remuneration’.Thirdly,there is no (b) part to the
definition
as in the LRA’sdefinitionof ‘employee’whichincludes‘anyotherpersonwho in
any mannerassists in carrying on or conducting of the business of the employer’. It is
Submitted,
however,
thatnot muchhingesonthesedifferences.
TheNMWAwillnotapply
fo independentcontractorsbecausethey do not work ‘for another. They still work for
themselvesand providethe productof their work to the client(seethe discussionof the
distinction
betweenemployeesandindependent
contractors
in chapterthreeabove).Fur-
thermore,
it makessenseto speakof ‘oayment'
insteadof ‘receiveremuneration’
in the
Context
of the NMWAas the Act is afterall abouta minimumwage.Lastly,omissionof the
(b)part
ofthedefinition
of‘employee’
intheLRA
isneither
here
northere
inthecontext
of
me owing,forworkdoneto beginwith. d, inorderto doso,therehasto beawage—
 CHAPTER
4 MINIMUM
STANDARDS
LEGISLATION

4.2.3 The provisions of the NMWA

sofsection
4(1)oftheNMWA readwith item 1 of Schedule 1 t° the Cth
em histranslates,
fora personwhoworksGight ho... Ny
has
been
setatR20
perhour.
This ; ust under
R300 4 Ours
ata
fivedays
oftheweek,
toa monthly
wageoO!
justu » NOWeVver,
thefolloy
exceptions
applyin termsof Schedule1= |
* The
minimum
wage
forfarmworkers
isR18
perhour
(note
that
there
isa
Sector
termination
applicable
tofarmworkers
—see4.3.8)). Ne:
* Theminimum
wagefordomestic
workers
isR15perhour(note
thatthere
iS ase
cog
determinationapplicableto domestic workers — see 4.3.8). | ;
* The minimum wage for workers employed in expanded public works pro
grammesis.
R11perhour.(Thisis a labourintensiveinitiative from Government, funde
d fromPublic
resourcesand designed to reduce unemployment. The terms and cond itions of em,
ployment arealsoregulated by a Codeof GoodPracticefor Employmen
Government
Learners who Gazette
work in34032
terms
of
oflearners
18February
tions of Work for Expanded Public Works 2011.)
Programmes Government NOtice
{ andCong.
129
jy
 CHAPTER 4 MINIMUM STANDARDS LEGISLATION
a

paidforfourhoursworkforthatday.A workerwhoispai
for
example
onaweekly
his/her
weekly
ordinary
ormonthly
basis,
ormonthly
has
working
toashe
hours.
The
awage
peer
NCSSEG
ayof
inrespect also makes secti

abou g and
sections
4(9) (deductions
5(4)).
These fromwages)
sections oftheBCEA
arediscussed applicable
below
(see totheNMW
4.3.5) i
There
isnodoubt
that
manyworkers
historically
were
paid
less
than
theminimum
wage
now
setbytheNMWA.
Atthesame
time,
andoften
forvery
good
reasons,
itmay
4
difficult
foremployers,
especially
small
employers,
tosuddenlypaytheir
Weckure
atthe
an
read
exemption
levelwith
uired
req thedetailed
bythe
fromthis
NMWA.
regulations
obligation.
ther
One
terms
issued
legal
Exemptions
and
option
conditions
in
101
terms
MWA
available
are
of
and
of
regulated
NMW,
the
employment
Act
other
toany
these
(see
by
applicable
sources
Government
section
employers
‘inconnection
15
of
sectoral
of
is
terms
Notice
to
the
apply
with
deter-
NMWA
and
1401
the
forinf
—
in Government
Gazette42124of 18 December2018)andappliedfor in personor viathe
Department
ofLabour’s
online‘National
Wage
Exemption
System’.
However,
exemptions
areverylimitedand may not be for a period exceedingone year,Orentitlingthe employer
to paylessthan90%of the prescribedminimumwage.At the sametime,section4(8)of
theNMWAdeclaresit to be an unfair labour practicefor an employerto unilaterallychange
wages, hours of work or 0
implementation
oftheNMW'.Thissection,
whichwasadopted
withretrospective
effectto
4 March2017, aims to address the situation where employers try to limit the impact of the
NMWon their costs through, for example, a reduction in working hours rather than not
payingthe wage. Note, however,that this section only applieswhere an employerdoes so
unilaterally
whichleavesroom for an agreementto this effectin a contractor a collective
agreement. Unfairlabourpracticesare discussedin moredetail in chapter11 below.
Thecurrentlevelsof the NMWare notcastin stone.TheNMWCommission
is specifi-
callytaskedto conduct an annual review of the minimum wage and to recommend adjust-
ments.As mentioned,lower levels have beenset for farmworkersand domesticworkers.
Oneof thefirstdutiesof the Commissionis to makerecommendationsto the Minster
of
Labouraboutan adjustmentto the minimumwageapplicableto theseworkers,whichhas
tobeeitherto the samelevelas the generalminimumwageOFas closeas possibleto it.
TheMinister
isthenchargedwithmakinganadjustment
to theminimum
wageapplicable
to farmworkersand domestic workers in view of the Commission's recommendation.As
farasworkersin the expandedpublicworksprogrammesare concerned,the NMWAonly
provides
thattheirminimumwagehasto be adjustedproportionally
to anyfutureadjust-
ment of the NMW.

4.2.4The interaction between the N lation to the level of wages

conditionsof employment in re
introduction
to this chapterit was mentionedthat any employee's(or worker's)terms
iWA
conditions
andtheare
determined
BCEA), through
sectoral theconsideration
determinations, and
different application
levels oflegislation
of collective (the
agreements,
a ,
: Well
asthecontract
ofemployment.
When itcomes
tothelevelofanemployee's
wages
prescribeany level of wagesfor
anyemployees will
mivideforaae
higherlevelof ordinarywagesthanthe
Nationorapplicable
; bargaining t.Inthese
: agreemen
councilcollective cases,
thesimple
Ser
 CHAPTER4 MINIMUM STANDARDS LEGISLATION

i about the actu loyment.

Where
anemp
loyee is PaidMor
:
ere isa Ss :

toral determinations and legislation is discussed in

4.2.5 Enforcement of the NMW

NMW
overrides
theNMWA
any
contract,
collective
saysnothing
agreement,
about
Senora)
eoo Ono
howpayment oftheNMWISto beenforce TOtherlay
Provisions
relating
toenforcement oftheNUWA arecontained in theBCEAd. Allofthe
i oth a system of administrativeenforcement through the ins
- TheBCE,

formly to all employees. It also does Not regulate all ASpects of ONstitution
emt@pply(ieuni-
the
relationship from
anditsProvisions
arenotthediscussion
cast
;
below,
inStone. theBCEA
wee of“mploy-
© Condit
the ©Mployment
4.3.2 The @pplication

an employee’
insection
1 €xcludes
independent
Contractors
Peration of thethey
B are
EA t
fromtheoperation
ployees —
oftheAct.Section
3 also©xcludes
thefi llowing
¢=
* members of the State SecurityAgency;
 CHAPTER 4 MINIMUM STANDARDS LEGISLATION

« unpaidvolunteersworkingfor an organisationservinga charitablepurpose.

Apartfrom thesegeneral exclusions from theBCEA, there arecertain partialexclusions.
The best example of a partial exclusion is to be found in section 6 of the Act. Section 6
provides
thatchapter
twoof theActwhichregulates
working
hours,
doesnotapplyto
certain employees (see 4.3.3 below). Nor do most of the provisions regulating working
hours apply to persons earning in excess of the statutory threshold determined by |
the Minister of Labour in terms of section 6(3). At present, this threshold amount is
R205433.30 per annum. For purposes of establishingwhether an employeefalls above or
belowthis earnings threshold, one has to include the employee’s regular annual remu-
nerationbefore deductions, but exclude subsistence and transport allowances,achieve-
ment awards and paymentsfor overtimeworked (see GovernmentNotice 531 in j
Government
Gazette37795of 1 July2014).Theprovisions
of chapters
twoto fiveofthe
Actalsodo notapplyto employeesworkinglessthan24 hourspermonthfor an employer.
Anotherexample of a partial exclusion is section 27(1), which provides that only em-
oyeeswho have been in employment with an employer for longer than four months and
ployworkfor at leastfour days a weekfor that employerare entitledto familyresponsibility
who
leave in terms of the Act.

4.3.3 Regulation of working time

Chaptertwo of the BCEA regulates the working hours of employees. The following em-
ployees
areexcluded
bysection6 fromtheprovisions
of chapter
twoandtheirworking
hoursarethusnot governedby the BCEA—
» seniormanagerialemployees; ff who travel to the premisesof customersand who
« employeesengagedas-salessta
regulatetheir own hours of work; and
» employees
whoworklessthan24 hoursa monthfor an employer.
Section6(2)statesthat the provisionsrelatingto workinghours,overtime,mealintervals,
ork on public holidaysdo not apply to work requiredto be
restperiods,night work and w
f circumstancesthe employer could not reasonablyhave
donewithout delay as a result o
expected
andwhichcannotbe performedduringordinaryhoursof work.

Ordinaryhours of work rdinary working hours are 45 hours per

Accordingto section 9 of the BCEA, maximum 0
ks for five daysa week.Themaximum
weekand nine hours per day if the employee wor
han five days a week is eight hours
ordinaryworkinghours of employeeswho work more t
a day.
Section
9(2)provides
thattheordinary
working
hoursofanemployee
maybeextended
ifboththeemployer
andtheemployee
agree
although
only
upto15minutes
adayor60
minutesa week and only if it is done to enable an employeewhose duties includeserving
members
ofthepublictocontinue
thosedutiesaftercompletion
ofordinary
hoursofwork. ;
Section9 does not apply to employees who earn in excess of the statutory threshold '

referred
to in paragraph4.3.2.
Overtime
(time
worked
inexcess
ofordinary
hours
ofwork)
ndthatemployees
maynot
 STANDARDS
LEGISLATION

= to 15hoursa week,butthistypeofCollectiy
ed overtimatwo months in any 12-month period. ae Mee
maximum
permit
morethan -and-a-half times the employee's ,,
maynotapplyfor |
ated at one | ve : oA
Overtime
work
|
neration,
alternatively
t Ash
Section
40,
10,
4
and
sections
11and 12referred to below, do
thresholdreferred to above. not
apply
toemploy
=al)Wh

Interms
ofaeide
forthe
employee
working
forupto12hours
inaday(the43ah
ein.me Butthis
agreement
may
not
require
theemployeetowork
more thani
sa re: more thanten
hours’
overtime
inanyweek.Itmayalso
notreQuirean
employee
towork
onmore
thanfive
days
inaweek. 7 7
Section
12provides
that
anemployee’s
ordinary
working
hours
andovertime
May
be
averaged
over
a period
ofuptofourmonths
in termsof a collectiveagreement.
Butthe
employermay still not requireor permit an employee to work more than an average of 45
ordinary
hours
ina weekandanaverage
of fivehours’overtimea weekfor theagree
period.
Sucha collective
agreement
between
the employerand the trade unionlapses
after 12 months. ;

Meal intervals and rest periods

employer must also grant Ing andrecommenc;

en
hoursthat, unlessotherwis | i cing work. The
©agreed,must include
- Thedaily rest Perio
aae Period
unday. ofatthese
Again, least36consecut
basicconditions
d may, by writt
ise of the
MISes ata vw, agreement
nt, be reduced
St Period may, 5 orkplace and has a meal
Yywri
¢byeighthours
j iftenagreement,
be60

Ployeeto workona Sunda Na Sundayan

andone-half
timesthe¢ unday,
the©mployer
m ublehis/herh VSSthe em-
the
employer
may
grant
oe Swage
foreachaessyPay
a preoo “ge.Ifthe
Anemployer
may
not
reaure
we~dulvalent
paid
time
Of(Section
4An nely
one
 CHAPTER
4 MINIMUMSTANDARDS
LEGISLATION
a,

have
agreed
otherwise.
If theemployee
doesnotwork,
he/she
is entitled
to his/her
ordinary remuneration for that day. But if the employee does work on a public holiday, the
employer must pay the employee at least double his/her ordinary wage for every hour
worked(section 18). However, this does not apply to employeeswho earn in excess of the
statutorythresholdreferredto above.
Public holidays are provided for in the Public Holidays Act 36 of 1994. Section 2 of the
Public Holidays Act provides that a scheduled list of days are public holidays and that
whenevera public holiday falls on a Sunday, the following Monday shall be a public holi-
day.In Randfontein Estates Ltd v National Union of Mineworkers (2008) 29 ILJ 988 (LAC)
a questionaroseabout a publicholidayfallingon a Sunday.The employerwas runninga
continuousoperation, and had concluded a collective agreement in terms of which produc-
tion would take place seven days a week on all days of the year, excluding public holidays.
The union argued (and the LAC agreed with the union) that the workers who were sup-
posedto workon the Sundaydid not haveto work. In addition,the Mondaywas a public
holidayas well (in terms of section 2 of the Public Holidays Act) meaning that the em-
ployeeswere still entitled to be paid even though they did not have to work on the Monday.
Whatthe legislature intended with public holidays, said the court, was that there would be
at least 12 public holidays in a calendar year. The intention was not to limit the number of
publicholidaysto 12 days in any given year. What this also means is that employees who
do work on the Monday following a public holiday on a Sunday, should be remunerated
accordingto the abovementioned rules applicable to work on public holidays.
‘Nightwork’ is regulated in section 17. This is defined as any work done after 18:00 and
before06:00 the next day. It does not matter that the bulk of the employee’s work is not
nightwork, nor that the employee only occasionally works after 18:00 (see TFD Network
Africa(Pty) Ltd v Singh NO & Others (2017) 38 ILJ 1119 (LAC) where employees were
requestedto work overtime until 19:00 on a specific day). An employer may only require or
permitan employee to work at night if there is an agreement to this effect and if the em-
ployeeis compensated by the payment of an allowance or by a reduction of working hours.
However,
this does not apply to employees who earn in excess of the statutorythreshold
referredto above. An employee may also only work at night if transportation is available
betweenthe employee’s home, or at least in close vicinity thereof, and the workplace at
boththe beginningand the end of the employee'sshift. If publictransportis available,this
wilbesufficient
(seethedecision
oftheLabour
CourtinTFDNetwork
Africa
(Pty)LtdVv
Singh
NO
&Others
(2015)
36ILJ2142
(LC)
at2145D).
The
employer
willonly
beobliged
loprovide
transport
if thereisnopublic
transport
ateither
thebeginning
orendofthe
anyee's
shift.
Notethat
theBCEA
places
further
obligations
on ee ali a
egregularly
performs
work
after
23:00
and
06:00
the
next
dayoaty es9 ay
rethe health and safety of those employees. Section 17 does not apply toemploy
©earn in excess of the statutory threshold referred to above.

43,4 Leave

“Mployee h for an employer.In some instances,

wh0 works less than 24 hours a mont the BCEA. The BCEA does not
®mp|
*Yersgrantleavein excessof that providedfor in
Pe
CHAPTER MSTANDARDS
4MINIMU LESISEATION
9 a|

Annual leave whichisa periodof 12months’

employmeny
In respectof eachannualleave cycle, ;

same employer,an employee |is en

titled
toatrovides
least21 consecutive days’ annya| eeth
for three weeks’ leave anq the Fo
V

"Sf,
ence to 21 days is to calendar days and no ;
mployee may also
agree that the employee will be entitleg.
The employer and employ he employee worked or was entitled to bepNe
17 days t iq
day
ofannual
paid
leave
forevery i cients
oralternatively
toone
hour
ofpaid
leave
forevery
17hou ployee
Wo
orwasentitledto bepaid(section20). :
Annual
leave
must
begranted
notlater
than
sixmonths
after
theendoftheannual
lea
cycle.
Astotheactual
timing
ofleave,
section
20(10)
statesthatthisis subject
toAgre
ment between employer and employee and, where there is no agreement, it is for th,
employer to determine.
Section40 states that, on terminationof employment, an employer must pay an en,
ployee remuneration for any leave due that the employee has not yet taken. The inter.
action between this section and section 20 (which states that leave must be taken within
six monthsof the end of the leave cycle) has been the subject of litigation. This arises from
the fact that employees sometimes fail to take their leave accrued during a leave cycle
within sixmonths oftheend ofthatleavecycleandthen resign oraredismissed. This gav
rise to the question whether employees who have failed to take their leave within the six-
month
period
areentitled
tobepaid
outthisleave
interms
ofsection
40,orwhether
the
or iSleave
because
itwas
not
taken
within
sixmonths.
InJardine
y rondoae
Hel
a (2003)
24ILJ1147
(LC)
itwas
held
that
they
were
entitled
tobepaid
outthis

also Ludick v Rural Maintenance (Pty) Ltd (2014) 35 |

However,
ifanemployee
iscontractually
si ae (LC)
at1327G).
©Paid
take
loy
leave,
(paid)
the
 to the wage normally payable for work on t
Intermsof section23(1) of the BCEA,an

i illness or Injury.As to the is a

(Ply)Ltdv Mmoledi& Others(2014)35 ILJ406(SCA)

held that the |
held belief that her health was thre employee's genuinely
atenedunlessshecompleted
atraditionalhealer’s

, when an employee regularly takes sick leave on a

Monday
ora Fridaywithoutgoodreason)
orproviding
falseorfraudulently-obtained
medi-
cal certificates may constitute dismissible misconduct (see chapter seven below). The
issueis also discussed under the topic of ill health or injury in chapter eight below (see
Paragraph
8.3.5)whichdealswithdismissalfor incapacity.
Maternity
and family responsibilityleave
In terms of section 25 of the BCEA, an employee is entitled to at least four consecutive
months’maternityleave. The BCEA does not providethat maternityleaveshouldbe paid
leave.
However,payment
inrespect
ofmaternity
leave
isregulated
intheUnemployment
Insurance
Act.Many
employers
doprovide
formaternity
leave
thatmaybelonger
than
the
Slatutory
minimum
andthatispaid
leave
either
contractually
orincollective
agreements.
An€mployee
mustnotify
anemployer
inwriting,
unless
theemployee
isunable
todoso,
Of
the
dateonwhich
sheintends
tocommence
hermaternity
leaveand
whensheintends
_
0retum
towork
after
maternity
leave.
Maternity
leavemay
commenceatanytime
after
four
Weeks
prior
totheexpected
date
ofbirth
(unless
otherwise
agreed)
orbeae
iecessary
inlight
ofthe
employee's
orbaby’s
health
ascertified
byadoctor
. a wi: e
fisregan
d,thedecision
inSwart
vGreenmachine
Horticultural
Services
( ae ;
Slerkieen
(Pty)Ltd)
(2010)
34ILJ
180(LC)
makes
itclear
that
thedecision
isthaa a
the “Mployee
inconsultation
with
her
doctor
and
that
theprimary—— ifee
«>
health
work ofthe
untilsix mother
weeks and
after baby.
birth Section
unless 25(3)
certifiedfitstates
to do thatno
so by aemployee
doctororhaces
e. a3
|
: oe

5 ee eee ke
EE 4 MINIVS
CHAPTER Bie
a
ae
suffera miscarriageor give birthto
enwho es to SIXWeeks’
|g 9 StiIb
EAalsomanyeF ester
an th
Oy
Por ad
theie ne videformaternity
leave.It alsopro
’ O
PCts
mi
TheBCEA
does
more than simply
thebIith
dafter
i section
ofaapregnant
mit
26(1)
chi employee of
theBCEA provig,
oran employee
employwho
ieny.
Ois
nh,
vith
ployeesbefore an
employermaynotrequireor per ahazard Sin
toherhealthor the healthof her Child.FunQa
childtoperformworkthatposes
more,
ifwork
ishazardous
ticable
tthe
BCEA
todoso,section
places
anobligation
26(2)0
onemployers
tohe:
oge |

oteka loyee
than
her
usual
terms
and
conditions
ofempoymen
- TNis
Obliga
e eee isemployee's
pregnancy
and
continues
foraperiod
ofsixMonth
S afte,
birth.
However,
Manyetsa
vNewKleinfontein
GoldMine(Pty)Ltd(2018)39iLy 415
2 (LC)
makesitclear
that
this
provision
doesnotguarantee
suitablealternative
eMployme
whenapregnant
employee
has
tobemoved
outofahazardousJob—it onlyQuarante
consideration
forsuchemployment.
Inthis case

0 ©r
; UNderscor
€d b A?
(Government
Notice
R1444 of‘Ployees
during
p AE ytheBCEA
_
al
ISSues
ltANd
should
INCluding
biologicay
ismi
also
Steps
be
h ae
the
lds
SiDe
l @SPects
of
aCe
potoj
eNtfy
. phy:
als
With
wi ahost
ofrelated
_— CHAPTER
4 | ae
MINIMUM
STANDARDS
LEGISLATION 7 4
Ts:

limited
circumstances
to whichit applies
andlargelyignoring
therealitythatthecareobli-
gationnotonlyarisesfrombeinga biologi
ridstarts
an
sfeortinuise
ener
pragnenen
birth
mother,
but
that
the
proper
care
ofa
-_ ~Acasewhich highlights bot ing ti
¢MIA
vState
Inoi seTSoISE
nsand
some
ofthe
deficiencies
ofthe
BCEA
el p
mployee
had
entered
;
into
acivil
civil
uni
union
Sey
with
(Pty)
Ltd
another
(2015)
man.
36/LJ180
The
couple
(LC).
notonly
Amale
commis-
sioned
a a ee togive
birth
totheir
child,
but
also
decided
that
the
a loyee
in
uestion
ae psthe
role
ofthe
birth
mother
and
take
immediate
reaporeiellt
fothe
_ careofthecniid. heemployee
applied
forfourmonths’
paidmaternity
leaveas provided
forinme
policy
oftheemployer,
but
this
wasdenied.
The
employee
was
aanten
two
months
paid
adoption
leave
andtwomonths’unpaid
leave.
Thecourt
accepted
thatthe
employee
was
against
entitled
tothe
theemployee.
maternity
(Note
leave
thatthiscase
andthat
theemployer
wasnotabout
unfairly
discriminate
theprovisions
oftheBCEAbutt
j
ratherthe wording and application of the policies of this specificemployer.)
The
2018amendments
adoption
leave totheBCEA
introduced
andcommissioning
parentalprovisions
leave. dealing
However, with
atthe parental
time leave
ofwriting
this
handbook,
these
sections
havenotcome
intooperation.7
Section
25Aprovides
forunpaid
parental
leave
ofatleast
10consecutive
daysforan
employee
whois a parent
ofa child,tobetaken
fromthedateofbirthor,in.case
of
:adoption,
fromthedayonwhich
theadoption
order
isgranted
bythecourt
orfrom
theday
thechildis placedwith the adoptiveparentpendinga courtorder,whicheverday comes
first.
Section
25Bprovides
thatanadoptive
parent
ofachild
under
theageoftwoisentitled
to
unpaidadoptionleave of ten consecutiveweeksor to the parentalleaveprovidedfor in
section 25A. This entitlement is from the date of the adoption order or the date on which
thechildis actually placed with the adoptiveparentpendinga courtorder,whicheverdate
comesfirst. The two adoptive parents are not both entitledto adoptionleave.One adoptive
parentmayclaimthe adoptionleavebutthentheotheradoptiveparentwillonlybeentitled
tosection25A parentalleave.It is for the adoptiveparentsto decidewhichonewillapply
for what leave.
Section25C providesthat a commissioning
parentin a surrogatemotherhood
agree-
mentisentitledto eitherunpaidcommissioning
parental
leaveof at leasttenconsecutive
.
weeksortoordinaryparentalleavefromthedateonwhichthechildisborn.Iftherearetwo
commissioning
parents, only one may take commissioning
parentalleaveand the other
maytakeordinarysection25Aparentalleave.It is forthetwoparents
to decidewhowill

takewhat type of leave: n or commissioning parentalleave,payment duringleave

Inrespectof parental,adoptioloymentInsurance Act unlesstheemployer providesfor
isto be regulatedby the Unemp loyee has to notify the employerin writing one month
this and in all three instances the emp
inadvancethat this leavewill be taken.
4.3.5
Particulars
0 eration
Providing writtenparticularssthat theemployer
mustprovide
theemployee,
inwriting,
Section29 ofthe BCEA provide nted
outinchapter
twoabove,
theexistence
ofthis
duty
eneral
withcertainparticulars.As was PO! obligation
that
employment
contracts
mustbe in |
doesnot mean that there is now 2 9
Writing, | pe

109
 -

larstheemployer
Isobliged : the employee,at the commen
toprovide "Me y
Theparticulars
employment,arethefollowing— —,

STN sm oftiowohm Dy
ue*‘
-(b) ' *name
the x ; and occupa’
0ooOl
ee¥i =e: asasd:fering,
-: : :
employee
isemployed;
=. isrequired
orpermitted
tOwork
atVatio
(ce)the
place
ofwork,
and, where
the
laces.
an indicationof this; - oS
Pilates:enyatication
on see. he
(@)the
date
onwhich
the
employment
began:
ae ofiwork
anddays
ofWOrK; Ag
(f)theemployee's
wage
orthe
rate and.meeee
(9).
the
reib-o
pay
forove
tethatthaamo
isentitled
to;
_(h)
any
|
other
cash
payments
x J eS
that
the
employee
: SF
is entitled
ase
to,
ne eC ;
nieSe ‘we
(j). how
-().howfrequently
remuneration
frequently UOT willbe
eRe paid;
ee ac: |
He Renee
“(kyanydeductions
tobemade
fromthe
employee's
remuneration;
aI)theleave
the towhich
period
of the
employee
notice isentitled;
required
to
terminate= orif! employment
employment, 3for
is -
aspecif
~_tiod,
thedate
whenemployment
istoterminate;
a :
(n)adescription
ofany
council
orsectoraldetermination
which
covers
(0) any
period
ofemployment
witha |
~~periodofemployment
=
(p)alistof
any.
other
documents
that
form
part
ofthe
contract
ofemployment
indicating
aplac
_that
isreasonably
accessible
totheemploye
‘where
acopy
ofeaclmay
beobtained’|
—
Section
29(1)
oftheBCEA, Wk oeier a
Provisionsrelatingto remuneration
One of the terms of employmentwhich the BCEA does n
— this is nowdoneby the NMWA(discussedin 4.2) ine
toraldeterminations(discussedin 4.8) and applicableb onjunctionwith the different sec-
ments. argainingcouncilCollectiveagree-

A provides,for ©xample,that j

¥ Ormonthlybasis,
designated
bythe
mation
the
emae forWhich
the

(section
34(1)(a)),
orifthededuction
isrequired
orpermitted
interms
9
incometax), a collective
agreement(eg an agencyfee — 5 fa la
orderorarbitration
award
(section
34(1)(b)). : €echapter
16bel

110
es CHAPTER
4 MINIMUM
STANDARDS
LEGISLATION
e If the deduction is made to reimburse a
n employer for loss or damage, section34(2)
read with section 34(1) Stipulatesthat
this may only be done if —
o_ Either the employer has a court o
rder or arbitration award in its favour ascontem-
plated by section 34(1)(b) which also allows for the deduction, or the employer
itself follows a fair procedure whi
otherwords, even if the employee does
ch establishes
owe the employer
that the loss
a liquidated
or damage
(determined)
occurred —
in the course of employment and
the employee and the employee is given a reasonable opportunity to show why
the deductions should not be made. Even where the employer follows an internal
process, the employee still has to consent in writing to the deduction in a docu-
mentwhichsetsouttheamountdue(seePadayachee
v Interpak
Books(Pty)Ltd
(2014) 35 ILJ 1991 (LC)). The requirement of written consent clearly does not
apply to a deduction made pursuant to a law, collective agreement, arbitration
award or court order (this despite the courts’ apparent contrary finding in Paday-
achee above).
o Where a deduction is made in terms of section 34(1)(a), ie where the employee
consents in writing, the total deductions from the employee’s remuneration for
the purpose of reimbursing an employer for loss or damage may not exceed one
quarter of the employee's remuneration in money. Note that this 25% limit appar-
ently does not apply to a reason for a deduction other than reimbursement for
loss or damage (despite the contrary statements in Naidoo v Careways Group
(Pty) Ltd & Another (2014) 35 ILJ 181 (LC)). Again, it should be noted that the
court in Padayachee stated that section 34(2) applies to all deductions in respect
of loss or damage, whether done by consent or in terms of a law, collectiveagree-
ment, arbitration award or court order. In view of the express wording of section
34(2) —linking its restrictions to section 34(1)(a) deductions only (ie deductions
made by consent) —it is doubtful whether this is correct. At the same time, and in
the case of a court order or award in favour of the employer, it seems clear that
the deduction itself has to be authorised by the court order or award in addition to
the liability of the employee for the amount in question and, in all likelihood, the
25% principle will be respected.
An employer may make deductions from an employee's remuneration in respect of
Overpayments previously made by the employer resulting from an error in calculating
the employee’sremuneration (section 34(5)).
The courts apply section 34 quite strictly. Examples of how this section has been applied in
Practiceare the following —
* The common law rules relating to set-off are subject to the provisions of section 34. In

amount of money, the employer may not simply deduct this amount from the employ-
€e's remuneration without complying with section 34 (see, for example, Botha and
British American Tobacco SA (Pty) Ltd (2008) 29 ILU 1301 (CCMA); and the Paday-
achee case discussed above). Where the amount is liquidated through a court order or
award (and section 34(1)(b) applies) the order or award has to specify the deduction.
ForSection
34toapply,
theremustbea ‘deduction’
fromtheemployee's
‘remunera-
tion’.
38ILY
For
382
example,
(LC)the
inemployee
Mashego
owed
vMpumalanga
theemployer
Provincial
anamount
Legislature
ofmoney
&Others
in respect
(2017)
ot

111
 INIMUM
STANDARDS
LEGISLATION
= N
CHAPTER
4M

of execution and in respect of which the en

loyer issued a writ
which the emp
bank account was
employee's
attached(the fullsalarywas paid
into theznYe
count).Thecourthel ota‘deduction’
asenvisagedbysectionafQ:the
a.
BCEA. In Rank Sharp SA
(Pty)
Ltd vKleinman ( (LC) theeMD
eda settlement
agreementat the CCMAfor paymen;65
and former employeereach
amountto the employeein respectof an unfair dismissal case. The employer ee:
paythisamountas it arguedthattheemployeeowed the employer moneyfor angi
debt
which
could
besetoffagainst
the
settlement
amount.
The
court
accepted
that
fe
settlement
amount
didnotconstitute
‘remuneration’
forpurposes
ofsection
343
accepted
theemployer's
argument
thatitsrefusal
topaythesettlement
amount
did
no
breach section 34.
In the absenceof a writtenagreementconsentingto the deduction, or where one of the
exceptionslisted in section34(1)(b)does not apply, or (in case of recovery for lossor
damage)the employerdoesnot complywith section 34(2) or an applicable court order
or
award,
a
ofdeduction
vMinister will
beunlawful.
Correctional InPolice
Services
&Another &Prisons
(2013) Civil
34/LU Rights
992
(LC) Union
the oboMoy
employe
i
involved
inacar
accident
which
caused
aloss ofR40
000
totheemployer.
Thea.
ployee
never
accepted
responsibility
fortheloss
and
nocourt
found
himVathFiv
osoe ne
et eeciie e employee
liable
andstarted
making
rela Is Salary.|

employee's total remuneration) prompti eee

Prompting the employee to approach
no written consent, ; the exceptions did not apply (the

Even if the deduction is requi

quired or permitted. fo | Section 34(2).
ment
andtheemployee’s
consent
isnotniece
elas: PylaworaColeclve
aa

agreement
permitsa deduction
(as envis J171(L
“* EC)
PartmenEntitled to> jtre“le
“8lVed
deduction
the first
may
 a CHAPTER4 MINIMUMSTANDARDS
LEGISLATION c i.

legislation
provides
forit)or,
failing
iheWk.coresade ae rei a
pliance
and with
section
Murray
& 34(1)(a)
Roberts (see
Autocast National
(2005) Union
26ILJ of
1567Cece
(LC)). ofSA
anGcBiae
Secondly, nis
want
tosuspend
anemployeeeither
with
paypending
aDa raterwitht
ayasadisciplinary
sanction
after
theemployee
has
been
found
guilty
(unfair
suspen-
sionis an unfairthat
labour practice andisdiscussed indetailinchapter 11below).The
suspension without pay is an acceptabledisciplinarysanction un-
oint for now is
in, for example,the contractof employment or a collective
agreement
lessprohibited
ourts have held that this does not violate section 34oftheBCEA(seeNational
Mineworkers & Others v Martin & East (Pty) Ltd (2013) 34 ILJ 978 (LC)).
Unionof e conduct by an employee may not only constitute misconduct such as
Thirdly,the sam rformance of duties, but may also cause the employer monetary loss
thenegligentpe to a vehicle or to machinery. !n such a case, the employer may only
‘make deductions
such as damage inoneoftwoways.
Firstly,
withthewritten
consent
oftheemployee,
subjectto the restrictionsin section34(2).Typically,any disciplinaryenquiryintothe
employee's
conduct
willbesufficient
tosatisfy
atleast
oneoftherestrictions
insection
34(2)(ie establishing
thatthe employee's
conductwasin thecourseof employment
andthat it was the employee’sfault). Secondly,througha court order or arbitration

awardalsoauthorisingthe deduction. t deductions in respect of loss or damage will

From
only the
be Padayachee
lawful case,it isofclear
if, in the absence tha
an exceptionin section34(1)(b),thewrittenconsent
Yiquidatesthe debt’.after the fact. This meansthat the consentmayonly validlybe
given
aftertheresponsibility
oftheemployee
andtheamount
ofthedebthavebeen
fairlydetermined.
This,in turn, meansthatthe practiceof someemployersto include
‘breakage’
OF
‘spillage’
provisions
inthecontract
ofemployment
fallsfoulofsection
34.
(The
sectoral
determination
forthehospitality
industry
alsoprovides
thatfinesmaynot —

» Asfarason
the
belevied recovery
of payments
employees.) mistakenly
madeto employees
areconcerned
e noted that the restrictionsin sections34(1)and (2) do not
apply.In34(5))
(sectiontheseinstances,
it should b the consentof the employee
is notrequiredandtheobliga-
tionontheemployer
apparent dvising
theemployee
oftheerror
and
theamountof thedeductionto WirelessPaymentSystemsCC
(2010)
31ILJ381(LC)).Whether
thisapproach
is stillcorrectis doubtful,
especially
after
theConstitutional
Court
decision
inPublic
Servants
Association
oboUbogu
V
Headof theDepartment
of Health,Gauteng& Others(2018)39 ILJ337(CC).This
casedealt with section 38 of the Public Service Act 103 of 4994 which, similarly to
tionofanerroneous
payment
~ section
34(5)of the BCEA,allows
| for the unilateral
ined bydeduc |
the employer.The courtfoundthis
__toan
employee
to beon
Provision terms
un!
unconstitution | through
d that‘[t]hemechanism |
section
Strictliability
onanemployee
inrespect
ofoverpayment
irrespective
ofwhether
tne
mined
instalments
andwasafforded
anoppor
| see te naffordthearbitrarily
deter™m! a
[ vy
___ forlegal
&mployee
ca
elerans redress’
& Others(at
paragraph
39 IL 67).
itrari
(2018) (See
2298 also
Bux
(LC)) vMinster
it also ofDefer
oe
sometimes
happen *
’
+
, UMois — Bpae ene
SHAPTER
4 MINIM . |
termination
ofhis/her
=Mployme
.
ents
toan eaftere
employee
2 after
tion,
termina the
Th
e employer
Labour will
Court have
does toha
NotiniUty
th
paym d : 7 |
loyer
claim
in
claim
mistakenly
theHigh se
CourtforUdue enrichment
esure G
ces(Pty)
LtdvNaidoo
ro
(2044
diction
insucha case(seeTel
2769(LC)). n employee’s rem,,.
ides th
Section34A(1) prov!
at if the employ erdeducts
from
an emp TOR,
proviident/me dca
d definedas a pension,art
anyamountfor payme nttoa
or similar fund, the emp!o
nilst pay the amo unttothefund
within
seven
days
« .

Son 36 ofheBGEA
Section 35 of the relates tothecalculationnerationand wages
ofremu a,
Jes.
Ap.
to
ployee’s
works. Anwage
iscalculated
employee’s by
monthly es wet
remunerall ageisfour
andone-thirdtimes
theme
ly remuneration or wage, respectively. : a

tion
forpurposes
ofcalculating
leave
pay,
payment
Inlieu
ofnotice
andse €rance
Pay.
In
item
1ofaschedule
(published
asGovernment
Notice
691in Government
Gazette24889
of 23May2003)forexample,
theMinister
providesthat the following payments must be
included in the calculation of leave pay —
 CH APTER 4 MINIMUM STANDARDS LEGISLATION
—_—_

4.3.6 Termination of employment

Notice
Section 37 of the BCEA provi pa
sjoyee
and
ee cbliodemployer
depend noae oe notice
Ongernotice periods.
periods. This
The means
length that
of the theem-
minimum
e pends
ontheemployee's
length
ofservice.
Iftheemployee
hasworked
for
sixmonths
tion orless,
ofemployreny he/she
Iftheis,asaminimum,
employee has entitled
worked to
for
than a year, the minimum notice period is two weeks.
only
one
longerweek's
than notice
pa
sixmonthsfor| ; |
but
tye ce

Four weeks’ notice of termination is the statutory minimum in the case of employees
whohave
domestic
worked
Thesenotice
workers
foran
periods
employer
who have
maybe
been
forlonger
shortened
employed
than
byfor
ayear
a collective
morethan
and also
agreement
for
six months.
farmwore| r
(totwoweeksin case

of employeesemployed for more than a year) but no agreementmay requireor permitan

employee
togivealonger
period
ofnotice
than
required
oftheemployer.
Notice
oftermi-
nationmustbe given in writing,exceptwhenit is givenby an illiterateemployee.An illiter-
ateemployeereceiving notice is entitledto an explanationby or on behalfof the employer.
An employer may not give notice of terminationof employmentduring any period of
_ ordinaryleave,sick leave, maternityleaveor family responsibilityleave (section37(5)(a)).
Noticeof termination given by an employer may also not run concurrently with ordinary
leave,maternityleave or family responsibilityleave. However,notice may run concurrently
withsickleave(section37(5)(b)).Accordingly,an employeewho has beengivennoticeof
termination
of his/hercontract
ofemployment
maytakepaidsickleaveduring
thenotice
period.
Where it wastheemployee
whohasgivennoticeofservice,
he/she
maytakepaid
sickleaveduring the notice period, but again, the notice periodwill run concurrentlywith
thesickleaveand thus the noticeperiodwill not be suspended(see OasisGroupHoldings
(Pty)Ltd v Bardien(2011)32 ILJ 965 (LC)at 970G). 3
If the employer complies with these minimum standards (or the longer notice period
provided
forintheemployment
contract)
thetermination
willbelawful.However,
thisdoes
not necessarilymean that it will be fair. Even if an employer complies with the statutory
minimum
noticeperiodor the agreedlongernoticeperiod,the employee
maychallenge
thefaimessof the dismissal in terms of the LRA (see chapterfive below).The sectionalso
doesnot prohibitthe employer,in casesof seriousmisconduct,fromterminatingemploy-
ment
without
notice(commonly
referred
to assummary
dismissal).

Paymentin lieu of notice ration insteadof notice.

Section
38of the BCEApermitsthe paymentof remune
In otherwords, instead of giving an employee
415 tance,
notice,
the
anemployer
employer
no
maylonger
payrmination
thatem-—
wantsto—
—
ployeesalary or wages in lieu of notice. If, for ins er may pay the employee his/her
havethe employee at the place of work, the employ
remunerationfor the periodof the notice.an employeegives noticeof terminationof em-
Section38 furthermoreprovidesthat if 3 | employermust pay
ployment
andtheemployer
waives
anypartofthenotice
period,
the ee
theemployee
theremuneration
theemployee
wouldhavereceived
forthenotice
period,
unless
theemployer
andemployee
agree
otherwise.
foronemonth's
notice
ofte
If,forexample,
acontract
ofemployment
provides %

A
‘»
 ment contract on 1 March, the em :
loyeed Ployer
andtheemployee
does
nothave
tymae4
ntract
ofemployment
onlyactually
terminates
op,
s Cg
termin e contractof employmenton 1 March,tog. any

can waive any Ppa ing March.

hasnotworkedduring ' :
March
eventhoughhe/she yeewillbeentitledas paymentin lieuofral
‘onto whichthe emplo | is

calcu
‘ondi
muneration in 4.3.9.
discussedin :
Eeksection
39provides
that
where
anemployee
resides
inaccommoda
on
the
employer'spremises
orprovided bytheemployer and ne employer terminatestheCon
tract
throughpaymentinlieuofnotice interms ofsection 38,theemployer ISObligeto
provideaccommodationfor at least a month, or the longer notice period agreed uponby
the parties.If the employee elects to stay in the accommodation, the payment owed to the
employeein termsof section38 is reduced by the agreed value of the accommodation.

Payment on termination of service

Section40 providesthat, on termination of employment, an employer must pay to an em-
ployee —
* Moneyowingin respectof any time off for overtime worked (section 10) or time off for
work
onSundays
(section
16).
This
willbeapplicable
where
anemployer,
instead
of
payingthe higherrates for overtime or work on Sundays, by agreement grants the
employee the equivalent in time off. |
Remuneration in respect of annual leave accrued and due in terms of section 20, but
not taken. Bear in mind that this
only relates to the cur. i cycles
—
see
the
Jooste
case
discussed
inaa. rent
andpreceding
leave
cycle

Severance
pay

oe1employee
ofceBCEA Provides
for Operati
forthe
Payment of severance pay. If an employer dis-

ance
pay
equal
toatplo
least one
Service with that em
: er. .
eeeOeueemployer re mustpay anemployee sever
neration
see
the Payable
statuto
chapter
"Y asadiscus
) een
niSchedule
inebelow, Pay
Fance
Sedben
in 4.3
efit‘’.are
(For
ee eeforeach
set
an
aout
completed
detailed
employee
inA
section
year
ofcontinuo
discussion
would
35 ofform
the
onBCEA,
part
severance
of the
readremu-
pay,
with
7
 onf
jective
ofa certificate
of serviceistoconfi ,

4.3.7 Variation of the provisions of the BCEA

Employers
and
employees
cannot
contract
outoftheBCEA.
Inother
words,
theycannot
simply
provide
innelemployment
contract
that
the
BCEAwilnotapply
tsheote -
ment
and
inflexible
unions
relationship.
totooe
the
But
extreme.
ifor
the
vary
BCEA
Provision
the
minimum
did
not
isprovide
made
Standards
for
for
variation
some
set
way
out
ofin
certain
for
the
employers
Act,
basic
itwould
condition
ancien
berigid
of©
fj

7”bees ms eee sire

aal Ta, 7" oa rer

jective
agreement
condition
Coricluded
ofemployment
inabargaining
council
if thecollective
may
agreement
alter,
replace
isconsistent
orexclude
any
withthepurpose
of’
; Act
andthecollective
agreement
does
not— Kj
uce
the
theprotection
).reduce prote afforded
toemployees
by
sections
7,9and
any
regulation
madein
eons
of section.
13," oe 5; jian ! oe4LeMee
oh.
a"a: pe te bee a
educe
theprotection
afforded
toemployees
whoperform
night
workinte
educe.an
employee's
annual
leave
interms
ofsection
20toless
t
reduce
anemployee's
entitlement
tomaternity
leaveinterms
ofsection
reduce
anemployee's
entitlement
tosick
leave
intermsofsecti
‘conflict
with
theprovisions
ofChapter
Six.
ollective
agreement,
other
than
anagreement
contemplated
in subsecti
‘or
exclude
a basic
Say condition
of.employment,
to.th ited
toral
determination.

rytothe
provisions
ofacollective
agreem
lective
agreement
contrary
tothe
provisio
argaining
council’

Basic
conditions
maybechanged
firstly
bymeans
ofacollective
agreement
concluded
in
abargaining
council.
The
parties
inabargaining
council
may change
anything
contained
in
the
BCEA
except
theprotection
ofemployees
inrespect
ofworking
hours,
ordinary
Lege
ofwork,
ornight
work.
Normay abargaining
council
agreement
reduce
anemployee
s
annual
leavetoless
thantwo
weeks, reducematernity
leave
orreduce
anemployee _
leave.
No council
agreement
may conflict
withtheprohibition
ofchild
labour.
Itis=
envisaged,
once
TayNotreducethese
sections
parental come into
leave,adoption operation,
leave that
4bargaining
orcommissioning counell
parental og
(provad
leave
” {

NF a Se Ae

117
 DS LEGISLATION

for in sections 25A, 25B and 25C of the BCE iUst

‘i
ct before |t can change any basic ¢o, aly
be consistent
withthe objectives
of theA QnoF
by means of a
employmen
t Be tancoat
employmen
t may
bechanged by lect
Secondly,basic c loyer and a trade Union,
p
‘ning
council
byanemp han a bargaining ...
thistype
ofcollective
a basic
conallt itself.
Three
examples
y.
. It mayreplace
orexclude
a© e BCEAitself. PesWhe

theBCEA
allows
this
are:
anincrease
InOVtion10(6));
theaveraging
ofordinary
Work
amaximum
of15hours
perweek
(seesec itesections
9and10);andtheEntitlem
hours
and
overtime
interms
ofsection
12en
Thirdly,
basic
conditions
ofemployment
neyf anagreement.
Butagain,
thismetho
of
bytheemployerandtheemployee
bymeans0 loyeeagreementmay only vary a staty.
variation
isnotverypowerful,
asanemployer-emp
Oe d bytheBCEA.Inotherwords
;
tory
basic
condition
theBCEA ofemployment
permitstheexclusion, tothe
extent
orpermitte
replacementvariationof;a Kaas
ba anton niey
tocamlieel
mentbyagreement
between
theemployer
andtheemployee,
theparti Y Teplac
exclude
orvary
that
condition.
Examples
include:
anagreement
toextend
theperiod
dur
ing
which
Sundays
anemployer has togrant
paid
time
(section16(6));anagreement
offfor
Providing
overtime
(section
fora compressed
10(4))
orfor
work on
workingweek (section
a mealinterval(section14(5)):an agree-

4.3.8Ministerial
andsectoraldeterminations
The Ministerof Labour has signifi
has the power to make a determi cant powers in terms Of the
dards provided for in the BCEA in nation to replace Or exclude
Sais
irae
oe
 Ae Se ee
_ . ie eeee ee ak es

CHAPTER 4 MINIMUM STANDARDS LEGISLATION

—

Secondly,
theBCEA
provides
forsectoral
determinations.
Asectoral
determination
es-
tablishesbasic conditionsof employmentfor employeesin a sector.‘Sector’i

andanareawhichincludes,
according
tosection
1,‘anynumber
ofareas,
whether
ornot
contiguous,
Asectoral
determination
maysetminimum
terms
andconditions
ofemployment,
includ-.
ing minimum rates of remuneration as well as minimum increases. Again, certain limita-
tionsareplacedonthepower oftheMinistertomake asectoraldeterthination
butthese
imitations
arelargelyrestricted
to childlabour,workinghours,andnightwork.However,
theMinisterIsallowedtomake aso-called nationalsectoral
determination
inrespect
of
employees
the Ministernot
of covered
byany
Labour may notsectoral
make adetermination
interms ofcovering
sectoral determination
section 55(8).
Ofcourse,
employees fig
and —

employers
whoareboundbya bargaining councilagreement.
A number of procedures must be followed before the Minister issues a sectoral deter-
Conditions of employment in the sector and area must be investigated by the
mination.
NMW Commissionand the report must be submittedto the Minister of Labour for consid-
eration. The final decision as to whether or not a sectoral determination should be made
remainsthe decision of the Minister of Labour as the Commission has merely an advisory
function.A number of important sectoral determinations have been made in respect of, for
example,the contract cleaning, private security, domestic workers, wholesale and retail,
taxi,forestry, farm workers and the hospitality sectors. There is also a sectoral determina-
tion dealing with learnerships. These sectoral determinations take precedence over the
BCEAin the determination of minimum standards of employment in these sectors. Fur-
thermore, all of these sectoral determinations regulate minimum levels of pay which
shouldbe seen in conjunctionwith the NMWA (discussedabove). At the same time, a ;
ot necessarily
sectoraldetermination does n
addressall minimumtermsandconditions
of
employment.
Whereit doesnotaddresscertainminimum termsandconditions,
theBCEA
applies.
4.3.9 The BCEA (or a sectoral determination), contracts of employment
and collective agreements
Theinteraction
betweenthe BCEA,thecontractof employment andcollectiveagreements
maypresentpractical problems. It may be
difficultto ascertainwhetheran employee's
termsandconditionsof employmentare governedby the BCEAor the contractof employ-
mentor a collectiveagreementor by both contractand collectiveagreement.
Thereare some guidelines to determinewhich source of terms and conditionsapplies.
Theseguidelinesalso apply in the case of a sectoral determination,but with one proviso
tion where there is a bargainingcouncil
namelythat there cannot be a sectoral determina
agreement
as the BCEA prohibitsthis. e BCEA applies to the employee in question. In
The first step is to ascertain whether th
thisregardit is necessaryto considernot onlythe BCEA’sgeneralexclusions,butalsothe |
partialexclusionsset out at the beginningof each chapterof the BCEA.Someof these |
partial
exclusions
havealreadybeendiscussed
in 4.3.2.It is alsonecessary
to consider
whether
theBCEAregulatesthe specificissueunderconsideration.
WhiletheBCEAcon-
forexample,
it issilent
onissues
suchasthe
BsProvisions
Jia relating
the toworks
working
employee hours,
or of
whether
the ile toan
employee
is
entitled ae
annual
etorm-:|
S. , Piaget s 4
oS R4 MINIMUM
2) ee
CHAPTE

Sore BCEA’s
starting
point
inrespect
ofeMploymens
x
O MtrCte

Tigucion
ofprovisions
In
“Abasic
condition
ofemPIOy™

“vith
theprovisions
ofthis
term
ofthecontract
of

able to the employee than the minimum standard.

ifanemployment
contract
provides,
forexample,
thatanemployee
is entitledto25days
paid
annual
leave,
theemployee
willbeentitled
tothe25days’leaveandnotonly
21 days’ leave as provided for in the BCEA.
the
An employer and an employee cannot contract i |
| out of the BCEA. It is not possib]}
foe? CHAPT
ER
4MINIMUM
STANDARDS
LEGISLATION
From this discussion, it should be c|

cause
aSeofthe various
sources
ofterms
seesThese
are
necessary
be-
indicate
that
t ero eontiict
between
the
sources.
AabetaeaieeCue
ofemployment,
although
theyallsaydifferent
things.
Insucha casethefollowing
contrac
guid
uide-|
linesapply—
. Collectiveagreementsand legislati
sioyment
contract
nolcenee
ee aeed over
the
individual
em-
(and
whether
they
arebargaining
ee. council
agreements)
ay} ; die
ee
precedence even over the

feSteemicnt
ag silibany
be
apehed
tana'vi
ms
ryovisions,theprovisions
the contracts ofthecollec-
of employment). If the
provisions
ofthecollective
agreement
arelessfavourable
thantheBCEA,
thecollec-
tiveagreement's
termswillonlybeapplicable
if theagreement
fallswithinthevariation
framework
of the BCEA.If the collectiveagreementdoesnotcomplywiththevariation
provisions
oftheBCEA,
theBCEA
will,asa rule,apply.
A contractof employment may always providefor more favourableterms and condi-
tions than the minimum standards set out in the BCEA. Similarly, a contract of employ-
mentmayprovidebetterterms and conditionsof employmentthanthoseset out in a
collectiveagreement(section199of the LRA).
Someof theminimum
standards
of theBCEAmaybevariedor changed,
evenif this
changeis less favourable to the employee. Such variations, as discussed in 4.3.7, are
provided
for in theBCEAitself.Someof theminimum
standards
mayonlybechanged
ing council agreement,othersby an ordinarycollectiveagree-
bymeansof a bargainof employmentcan,in certaininstances,changetheminimum
ment. Even the contract
standards
of employment.
ployee’sactualtermsandconditions
of employment,
Insummary,when determining anem
thefollowingshould be considered —
(1) Doesthe BCEA(or a sectoraldetermination)applyto the employee(see4.3.2)andis
thetermandconditionin questionregulated bytheBCEA?
(2) Is therean applicablebargainingcouncilcollectiveagreement
stipulating
minimum
termsandconditionsof employment? (Remember therewillnotbeoneif thereisa
sectoral
determination.)If thereis a bargaining councilagreement, it mustbedeter-
minedwhetheror notthetermandconditionof employment is regulatedbyboththe
t. Ifso,andifthe
t changes
matter
hebargaining
isthe
regulated
contract
council
more
of—
BCEAandthe bargainingcouncilagreemen ncilagreement, thelatterwilltake
favourably
to the employeein the bargainingcou ,sion is less favourable than
precedence.
If thebargaining
council
agreement's
prov!t the deviation is allowedin
theBCEAprovision,it mustbe consideredwhetheror no
termsof section49 of the BCEA. If so, effect must be givento t

.~ agreement.
there Ifnot,theBCEA
anapplicable takesprecedence.
enterprise
OFplantlevelcollective
agreement
regulating
the
'ssue? If so, bear in mind that )
employment.
The questionthen beco
 nline
is | with
theBCEA
oranapplicable
bargainin
collective
agreement
is ntract
takes
precedence.
Ifthechanges
containe
Ou
t? If so, the CO
eS. t are less fav
ourable
than
theBCEA
orabargainin
inth
oe rst|

precedence.
only)
Ifthe
BCEA
thequestion
takes
precedence
iswhether
thedeviation
(or wip FeguiatedInthe BCE
in the collectiveagreementjs Alloweg
;
termsoftheBCEA(seesection49). If not, the BCEA takes precedence but
Ifa bap.
gaining
council
agreement
takesprecedenceover the BCEA (or the Matter
'Sregu
lated
only
inwith
abargaining
beresolved council
totheagreement
reference and
bargaining not
council theBCEA)
agreement thematter
itself (and will
wha have;
f
sgt ®® ® ® tit
about
deviations).
gaining
council Ifthe
deviation
agreement inthe
collective
takesprecedence. agreement
isnotallowed
thee
os
(4) Ifthereisa contract
ofemplo

€ enforceme CEA an
* ‘complain
to 3NisSection
©alleged
fail, ©Union,
provide
a trade
hee
“Ofthese
rights
employees
ha ;
androtection
dextende to
of em-
* Persons:
.
Widows .aof employment
yer .¥With
'eSentative
orto3(OUowing
theprovier, rights
inspect —
V Ora
torefuse
to fell ISIOnf the
Act: bout
 CHAPTE
OS
ae ie R4 MINIMUM
STANDARDS
LEGISLATION

secure
Seeisa written
nal undertaking by the employer toc
given and the omply (sect

SSEa aeciovenis
ysv acompliance ordertoan a Ea adi
Bfi5Seah
the ceed
; i
ge,andoe acompliance
also no compliance,orderatthe
application CCMA
may b dion
ion a aIf
69(5)).

compliance
: ermade
anaward
ofthe
the usCCMA
interms
ofsectio
73, N fo. ee
peter3°the
h point
soncemned, esof
eee proceedings
departure by
issection oron
77(1) behalf
which oftheaggrieved
provid See:
‘ution and the jurisdiction of th es that, subject to the Con-
stitu
terms
rovides
of the
otherwise,
BCEA. the
In addition, e
Labour Court Labour
section
has Appeal
77(1A)
exclusive Court
provides
jurisdiction
that
, and
thein
except
Labour
respect
where
Court
of allthe
has
matters
BCEA
exclu-
in _

sivejurisdiction
tograntcivilreliefarising
froma breach
ofsections
33A(prohibited
con-
children),
ductby the
46employer),
(prohibitions
43regarding
(prohibition
theof
employment
work by children),
of children),
44 (regulations
48 (prohibition
onof
work
forced
by

labour),
90(confidentiality
of information)
and92(obstruction,
undueinfluence
and
fraud)
Section 77A clothes the Labour Court with wide powers, including reviewing the Sater
ance of an y function providedr for
words,
in the
anBCEA
employee
or making
has
earesolution).
determinations
choice whether
The CCMA
that
to approach
it considers
also has
the ~
reasonable on any matterconcerninga contractof employment.This mayincludean order
forspecificperformance,an award of damagesor an awardof compensation. The court
mayalso.impose fines where applicable.
Despite
this,thereareinstances
whereothercourtsandtheCCMAalsohavejurisdic-
tionovermattersregulated by the BCEA.Section77(3) providesthat the LabourCourthas
with the civil courts to hear and determine any matter concerning a
concurrentjurisdiction
contractof employment, irrespective of whether that employment contract has been

changedby the BCEA. In othe

the LabourCourt for relief if the employerhas
civilcourts(typically the High Court) or
f course,leadsto the problemof forumshop-
breached the employmentcontract. This, 0
pingand the question whether the ordinary courts should havejurisdictionover employ-
the CCMA)and courts(suchasthe
mentmattersfor which specialist tribunals (such as
ssed in chapter two above (the con-
LabourCourt) have been created. This issue is discu
tract
ofemployment)
andinchapter
21below
(disput
jurisdictionover BCEA matters in at least five instances —
‘ifthe employeeearns below the threshold(R205433.30)andthe employee'sclaimis
forpayment
of an amountof moneyduein termsof theBCEA(section
73A)); |
CCMA, the CCMA may also determine
* ifthere is an unfair dismissal case before the
any
Claim
foranamount
owing
totheemployee
interms
oftheBCEA
(section
74(2));
ithe employeeallegesdiscrimination(an infringement
of the employee's
rightsmen-
also determine any other BCEA
tionedin section 78) in which case the CCMA may
(section74(1)):
ce orders(sections69 and73);and
disputes
| aboutwritten
disputes .; undertakings and complian a . !
era-

nalreasons(section41(6) (see the discussion|

 origins.International labour standards in the form of Inte
rational Labour Organisation
(ILO)Conventions playeda formativepart.Forpresentpu
rposes, the most important in-

mustfall into one of three broad categories namely —

- theconduct(ie misconduct)of the employee;or
* theemployee'scapacity or ability to do the work; or
* theemployer'soperational requirements.
TheILOConventionnot only lays the foundation for the fairness of the reasonsfor dis-
missal,
butalsosets standardsin respectof the pre-dismissal
procedures
that mustbe
followed.
Theseprinciples remain the core of current SouthAfricanlabourlaw in respectof
unfair
dismissal.
Ifthereason
forthedismissal
relates
totheemployee’s
conductorcapa-
city,
the
employeemustbegiven
anopportunity
torespondtotheallegations
made. This
is
also
referred
toastheaudialteram
partem
principle
ortheprinciple
that
aperson
isentitled
(0.
ahearing.
Inthecontext
ofoperational
requirements
dismissals
wheretheemployer
is
facing
financial
challenges
and
considers
reducing
its
workforce,
for
example,
site
Procedural
considerations
apply.
Article
13oftheILO Convention
statesthatint -
Cases,
theemployer
must notify
theemployeesortheir
representatives
thatte .
“ontemplated
andtheemployer must
provide relevant
information.
The oe ' ‘ae
Obliged
to
Missal
consult
Cannot
withtherepresentatives
about
beavoided,aboutmeasures
measures
to minimise
toavoid
dismissa
thenumber
; :aes
of dismissals
Mitigate
theadverseeffectsof dismissal
South
African
lawisclosely
aligned
totheprinciples
setoutin
in
this
thi
ILO
Conve
ntion.

| 1.3Unfairdismissalinterms oftheLRA —
| des
discussion
86 ofunfair
of1995(LRA) dismissal
must law
startwith contained
section inChapter
185
— VIII
of the ge
KH
 fon186,
only
‘employees.
Nave
therightnotfobeunfairly
dismisseq
+
i A esas
Interms
of towhat
constitutes
‘dismissal’
and
whenisadismissal
‘unfa;.
i
e

following
threequestions
—
» Was
theworker
anemployee? |
» Ifso,wastherea dismissal? . og
» Ifso,wasthedismissal
substantively
and/orprocedurallyunfair? iy
Thetestsandpresumptions
to establishwhethera worker is an employee or not are dic.
cussed
inchapter
three
above.
This
chapter
focuses
onthe
statutory
meaning
given
toic
word‘dismissal’.
existence This
statutory
ofadismissal. definition
Aquestion ofdismissal
completely isfrom
separateofrelevanceindeterminin
theexistence
of a disif

Rs Cad
, fee eLRA,
depending divided
on the upbetween
reason for andbargaining
councils,
es the
CCMA bie;
and the -

council system is discussed inc

andnatureof the dismissal. The bargaining
Ranier1 peli hapter 17 below and dispute resolution is discussed in

Priorto th Smis
Concent‘gic, ents to eCLRA ate

nation
of prowing
the
a thete inatic
ction186
Of
t
a and
Vuln at
Otect 0 theThe
ConC ee ts,
al of the
aeVant
"8
h Words contract
« Ss
Ubse
of <.
Mm Which
Ploy e
emplo em Ptsof S ‘g Oo ent
YMent
relat Apesagainst
Ployee"
ap, ee tof Pree
refer
toth
*'D Chapter
rth
thre | lS Shift " intr,
Oduceg:
rage
| Qa em a
to
 CHA noe

[a PTER
5 THE
MEANING
OF
DISMISSAL es
(1) of the LRA defines six forms of dismissal

4ofdismissal
Pee andunfair
labour
our prac
prai
missal’
meansthat
— oe,
Bete si te yed in terms of a fixed eS ieee
ed
the employer
— term
contract
ofemployment
reasonably
|
new
afixed termcontract
TAC Se ha
ofemploymenton the same or simi mee
ek
( ‘un it AnteeeFe similar ‘the

Keis: ie inemployment
onanindefinite
basis
but
otherwise
onthe
ployee
onous
ee easbin
erterms,
able
saath: term
contract
but
ordidnot
a the
offer
; employer
to thoffered
retain
t toretain.
Ost Ly the employee; | —
refused
toallowanemployee
to resume
workafter
she— oe i
temity
leaveinterms
ofany
law,collective
agreement
orher
contract
ot

yer
who
dismissed
ued
e-employ
one aintolerable
number
ployment
ofmore offor
employees
ofthem the
but for
the
same
employee,
has or
[Sao
refused
to similar
holereasons
as
re-employ or has
another; pe
Sn
‘terminated
employment
with
orwithout
notice
‘because
theemploy

Section
186(1)(a)reflectsthe commonlaw approachto what is meantby a dismissal,
inatesemployment.The other subsectionsin sec-
namelyan act by an employer that term!
forms of dismissalprimarilyto ensurethat employersare not
tion186(1)create statutory
abletoevadethe provisionsof the LRArelatingto unfairdismissal.
discussed in chapter three above and deals with
intermsof section198A(4)(whichwas
thepositionof employeesearning below the threshold vis-a-vislabour brokers)the follow-

ingwillalsoconstitute a dismissal —

General
principles of dismissal,namelythat
“ection
186(1
)(a)describes
thestandard
orconventional
form
or withoutnotice.Typically,an
theiem
employer :
terminates the employmentrelationshipwith
eferredto as a Summary dis-
€Mplover-w;
loyerwill terminateemploymentwithout notice (also aterial or
Sein) ififthe reasonfor the terminationis that the employeecommitteda m
Missay’
entis on notice,theperiodof
S8fious
} breachof contract.Where the terminationof employm
t be equalto, or exceed,the|
Minin |Provided forina contract ofemployment, mus ofEmployment
ditions Act75of3©
, mum per;
kesit clear, ee
a (see
chapter
four
above).
Whatisimportant
isthat
theLRA
ma |
x wer,
Ie

497. =
 CHAPTER
5THE
MEANING
OF
DI
SMISay
c
through
section
186(1)(a),
thateventhough
termination
ofempio
may
be
lawful
interms
ofthe
common
he
law,the
termination,
rtsfairness
havebeen
thereof.
pre
whanteeee
bYthe
Mp
Yorg
:ag n
ee
a
Noy
ductis subjectto anenquiryasto t
in a numberof decisions,the cou
insection186(1)(a)in circumstances
takenplaceasenvisaged where,a¢
est ar
“siggy
hX%
g
mightnotapply. Uab
A goodexample is NationalUnionof Leatherworkers
v BarnardNO &/
Nother
termsof(LAC)
[LJ2290section
in349ofthe
whichtheshareholders
6 ie a Act
aSof
nowrepealedCompanies
essed aSpec
1973t
ey
il resol

Ct of 8
searches wreoperation
amploymentofthe
meant that the contracts of e
unfairly
dismiy the
employees
ofthe
of law.Whentheemployees
companyw 1936
th
claimedth aeMinat
oui the employer
raised
the
defence
that
there
had
bee
. they
hag
ie
Fie
ee
ee
oa, yt argument.
On
ata dismissal
appeal,
takespl
this
finding
was
eine ou
med.Th
.
$8al,
Th
InSmi
mith
which vKit
tiejiKat
brings Group
Gabe (Pty)
Ltd(2017) ©Labo
al Theshoe: | tplacewhen an employerhasengaged
ctofemploymentyment
toanendinamanner
r ;j Nana
Arbitration & O workers & Another v Commissio nee
homicide
andthers(2009)30ILJ2771(LC)an emplo 7TorConciliation,
Mediation
sentenced
tofiveyears’
imprisonm
ployee
wasfoundguilty
ofculpab
ent
which
was
later
reduce
a"
Ps
CHAPTER 5 THE MEANING OF DISMISSAL
t
f
Pte

oth erswas
miss (2010)31ILJ1600(LAC)where
oehave existed
beeen courantstlonshln
SrSee
in~atheaeoe Wore
missal disclidsed'in
dawitia
chapter
eae owner.
The
decision
Ie . oftradeagreement
thatprecluded
himfr : : tik
ee
anya Sanioct
ofDelkors salle
direct as
competitorsa technical
intheevent salesrepresentative
ofhisresignation onan
indefini
Ku = pees oo
trade
agreement
but,following
negotiations,
the parties
concluded ee
© of which Delkorre-employedKugardon the sameterms as revious|
restraint
agreedto.Upon
mentin terms
Kugard's
reporting
forduty,
hewas requiredtosign
aLechaeiae fii ny
term
ante
when
Kugar
Beal with
osign
adifferent
thefixed
title
term
than
the
one
contract,
he
hewas
hadpreviously
ordered
occupie
offthepremises
The
7
Labour
Appeal
Court
found
that
Kugard
hadbeen
employed
onanindefinite
duration
con-
tractbeforehis resignationand in termsof the subsequentagreementhe had already
been
re-employed
onthesame
terms
andconditions
thatexisted
prior
tohisresignation
r
Anyattempts
byhisemployer
toenterintoa newthree-month
fixedtermcontract
didnot
‘detract
fromthefactthattheemployee
hadalreadybeenre-employed
onthesameterms.
Theemployer's
actofordering
Kugard
offthepremises
forrefusing
tosigna completely
new
agreement
terminated
theemployment
relationship
andconstituted
a dismissal
as
contemplated
insection
186(1
)(a).
tionbythe
may employee
claim to have(resignation)
been dismissed while the employ
er claims that the em-
Termina thereforeat the instanceof the employee
the partieswill be of
issal in terms of section4186(1)(a).
The intentionof
ini in fact been a resignationor a

facontractofemployment
bytheemployee.
Thecourts
loyee must evince a clear and unambiguousintentionnot to go on with the
‘Aresignation
isa unilateral
termination0
able person to believethat
have held
contractofthat the emp bywords
employment, orconduct
thatwould
leadareason
suchan intention
(seeCouncil
forScientific
& Industrial
Research
Vv
Fijen
the (1996)
17
employeeILJ18(A),andFijenvCouncil
harboured forScientific
&Industrial
Research
(1994)
15ILJ
759
(LAC)).
Notice
oftermination
ofemployment
givenbyanemployee
isa finalunilateral
act
ent (see RustenburgTown
‘which
oncegivencannotbewithdrawn withouttheemployer'scons
TPD220;PotgietersrustHospital
BoardvSimons
Council
v Minister
others 1942 African
National
Congress
1943
TPD 269,Duof Labour
Toit & (Pty)Ltd(" 999)20 ILJ1253(LC)and
v Sasko
vMunicipal
Manager,
George
&others
(2010)
31ILJ69(SCA)
atpara
11).
Inother
words,
itisnot
-anation that is tendere
necessary
for the employer to accept any
it.(See
concur Rosebank
init,
nor
is Television
the &party
employerAppliance
Co(Pty)
entit Ltdv OrbitSales
Corporation
(Pty)
Ltd1969
(1)SA300(T).)
Ifa resignation
were tis accepted
byanemployer;
thelatter
ignation,
to

dsineffect
Teduce be
quiretheentitled,
byasimp
anemployeeto remain
employment inemploymen
to 4 form0sfindentured
relationship labour.
nLtd(2010)
34ILU1477
(LC)paragraph
11. ; 3|
ae
Peel vSA
Broadcasting
Corporatio
<— CHAPTER
5 THEMEANINGOF DisSmissa;

despitethe generalrule that resignation ig ea

cannot
- eahio
dWorkers
Union
&Another
vGlass
&Aluminium
2000
Ccia erp,

resigning
in‘the
heat
ofthe
tionoftheresignation
moment’
andthere7 : ya-dismissal.
bytheemployee
washeldto be
empoyer
toAccent
the
vty
trag
inOuwerhoud
vHout
Bay
Fishing
Industries
(2004)
25/LJ731
(LC)
(atParagr
|
theLabourCourtheldthatthe onus is on the employee to prove that the
118)
re has bes
dismissalin terms of section 192(1) of the LRA and therefore reasoned that—. "Ma

‘Itis accordinglyincumbent upon an employee to establish on a balance of probabi

overt act by the employer that is the proximate cause of the termination of e ities|, -Some
‘
Mployment
is
dismissal
inthis
sense
should
bedistinguished
from
avoluntary
resignation
. . . andthetermina
tionofacontract
bymutual
andvoluntary
agreement
betweentheparties.A voluntaryresignation
byagreement
is not,therefore,a dismissalfor the purposes of s 186(1)(a).’
| CH
Tae
EEE
LL
:
ee iO aS

a APTER
5 THEMEANING
OFDISMISSAL

owsthatnoticeperiods,whethersti
ate
resignation contrary
tothe noticeprovisionsofthesoaasle Accordingly,
an‘immedi
common law terms,
iSmore thanabreach ofcontract.
Thisa ee erate
imp!yee+his faced
aeeffect’.
charges
‘immediate Inof misconduct
these cases, and
the inorder
irony tosie
isthattheeres
eaeak
atwhere an
tries
to
oa strictly. eeand
Applying not
the allowhim/her
principles toresign
inLottering, toshow its
anemployer's wont -ts
argumentvieletodis-.
: enforces
a «mmediate resignation’,
would benot towaive the noticeperiod
aayete
that
theemployer mayuse thenotice period todiscipline
theemployee.
However Bee
conflictingjudgements
a).and‘immediate
on thelegal
resignation’
principles
applicable
in particular.
in the
ps se
eee
; re
nMtati
VKPMG
Services
(Pty)
Ltd(2017)
38ILJ1362
(LC)
itwas
found
that
where
the
resignation
igwith‘immediate effect’,
theemployerloses
therighttodisciplinetheem-
with immediateeffect.Thisdecisionwasendorsedin Chiloanev Standard
pank
ofalso
South
ployee: Africa
; Ltd(unreported,
ZALCJHB,
J2270/2018,
5July2018).
Thecorrect-
nessof these decisions is debatable. This is because none of the cases the court relied on
rovides
authorityfor the propositionthat an Gmmediate
resignation’has the effectof im-
‘mediate
termination
ofthecontract
ofemployment.
Thecourthadnoproperregard
forthe
nted to breach of contract,which would have given rise to the possibility
cific performance.The effectof the minimumnoticeperiodsprovidedfor
the BCEA
The was
courtin also not
Coetzee considered.
v Zeitz Mocaa Foundation Trust& Others (2018) 39 ILJ 2529 (LC)
in
noted
thatthejudgment
in theKPMGcasehadbeenoverturned
onappealonthebasis
thatthe dispute before the Labour Court in KPMG was moot. it was on this basis that the
Labour
Courtin Coetzeefound the decisionin KPMGto ‘no longer[be] persuasive’.In
Coetzee,
an employee who was about to face a disciplinary enquiry, similarly claimed to
have
resigned
‘withimmediateeffect’andthattheemployerhadno ‘jurisdiction’
to proceed
withthedisciplinaryenquiry. The court confirmed the following well-establishedlegal prin- |
ciples:
Anemployee’s
contractof employment
comesto anendonlyoncehis/herresigna-
tionhastakeneffect,which is at the end of the noticeperiod.If an employeewrongfully
purports
to resignon no notice,the employerremainsentitledto exerciseits contractual
r may elect to either accept the
tights
duringthe notice period. Accordingly,the employe
eaand
claim
damages
ortoclaim
specific
performance
bytheemployee.
InCoetzee
eer that,
during
anemployee's
notice
period,
there
isnolegal
impediment
against
coo proceedings
This decisionand,
conduct. wasifendorsed
warranted,
in thesubsequent
Mzotsho dismissal
v Standard Bank of
of anemployee
South for
Africa Ltd

Stan
ieardHeadcase
BankSA was
Ltd followed
& Another byyet
(2019)another
40 view
ILJ 2589 expressed
(LC).In thisinNaidoo
case,two&Another
v
employees
ttempt to avoid their
a, charged
Were withgrossmisconduct
ith | anddishonesty
diate and,inana
effect. Standard Bank informed the em-
|
Sciplinary
hearings,
resignedwith imme tractualnoticeperiod.TheLabourCourt
tion!
th "esignation
found with‘immediate
tsintenti
a .
effectimmediately
brought
theemployment rela-
toa
: ployerwhowishesto discipline
;
an
Nend.In termsof thisjudgment,an em
 ehold
Department
with
‘th
loyer’s
the
‘immediate
section
employee
authority
of
16B(6)
employment
Higher
effect’
toto
his/her
of
’conduct
will
Education
the
first
Public
notice
which
have
.the
Service
perigg
discipling
Provided
&tos
Train
€e
.*
Kan
for
Ord
aot
Oth
“tiv
ing
[2017]©hts34 (ECG) the
d arose emp
fromthe contract
uringthenoticeperio
eh ofonemonth,
readtogether Sige : ctOf1
desthat‘[iJfnoticeof a disciplinaryhearingwas givento an EMPloye
This section provi 2
hall
notagree toa period ofagainst
noticeoftheresignation
Whi 8
the
relevant
stances,
executive
wheretheauthority
disciplinary
Ss proceedings
were instituted employeebefor
shorter
thantheprescribedpe , 3 | }n '
was
found,
‘wasclearly
introduced
into
theActtocater
forprecisely
thesituation
Which
:it
arisen
here,
where anemployee “resigns”inordertoavoid anadverse disciplina finin
andtherebyto leavehis employmentwith an ostensibly clean record’. In thesecircum

hispurported
resignation,
theemployer
wasprecluded
in termsof section16B(6)
from
agreeing
to a shorternoticeperiod.It was found that the employee was therefore Oblige
toserveouthisone-month noticeperiod.He was accordingly still an employee duringthe
courseof the disciplinary hearing which he chose not to attend at his own peril.

following
Statement
bytheConstitutional
Court—

was aff :
would
orded tothemprovided thattheywouldforfeitthatbenefitif dismissedfor dishonesty,
be an unacceptable conclusi
it
reeagi ion to say th :
dismissed
and
hence
remained
entitled
toreboc ued
resigned,
they
could
nolonger
be

INga ‘dismisgay;
SedansOfresignation
with
‘imm
itsSetwhie
©ee Precludes
employee had the employ
resigned ata
xX U : ry Steps
i = Ww.
ere b 2 Sea s :

employer had sus

ILJ
640
(LC)
itWas
hreCouncil
Ndeéran ob
forEducate,
0d Aer interv
ztiated againsthim
itengv Mgijima& J au,

ure
todosooctets
disc}
her
entitle
and
that
thenew
shewa gation° disclos
facingeri
wwwithaProspect
©thefactth
sureCome
tolight
follo ©mployer
t disci tio ciplin athercurrent
eeeven ifresignation
with
Mh@ppointment Ofthee th svenharges. A fail-
a,quences
peesnent relationship,
ofhis/her siren:
actions
entire! effect’
yee willnotn ae yeehis
Sult :“©Ms
Sai Should
tothisnon-
indicate
Ss i l
a “Stl beable
toc_ofMination
of e

ese
nthe‘Mportant
contract isquestion
‘when ok©mployment
n Oes m “Cape
3 the
: con-
m4.
© actu | e : peer ‘ +.i4br
Saee
ane
&.xao
ag =
 CHAPTER5 THE MEANING0
brae ee F DISMISS
AL

clusionof the contract,althoughit did not necessarilycon

the
dispute
contract.
overthe
Theemployee's
employeeclaimed
leasingthat
of a he
motor
hadvehicle
beenunfairly
to which
ferdismissed
the
he status
was entitled
and
of employee
theinemployer
terms
orof | —
employer
onthe
parties
forPurposes
oftheLRA,
stillgave
rise
tocontractual
claims.
Twosubsequentdecisionsof the LabourCourthavetakena differentapproach.In Jack
aypirector-General
DepartmentofEnvironmental
Affairs
[2003]1BLLR
28(LC)
theem-
loyee
had
received
aletterofappointment
asaconservation
inspector
andhad
resigned
from
hisprevious
position.
Thedaybefore
hewasduetostart
work,
hewasinformed
that
theofferof appointmenthad beenrevokeddue to an administrative error.The employee
$
oughtan urgentinterdict
| for specifiC performance of the contract of employment. The
Labour
Court
examined
whether
there
was
anemployment
relationship
between
thepar-
tiesand,to this end, examined the definitions of ‘employee’and ‘remuneration’in the
BCEA.
TheLabourCourtheld that oncethe partieshavereachedagreementon all the
essential
termsoftheemployment
contract,
thecontract
willbebinding
andenforceable.
inWyethSA(Pty)
LtdvManqele &Others [2003]7BLLR 734(LC)
theemployer and the
employeeconcluded
awritten contract on15March whichprovided
thattheemployee
wouldcommencework on 1 April. But beforethe employeecommencedworking,the em-
ployer
informed
himthatit wasnolonger
prepared
toemploy
himasthere
hadbeen
a

argued
thathewasnotan employeeforthe purposesof the LRA.TheLabourCourtdidnot
agree
withthe employer'sreasoningand held that —

‘plersonsin thesecircumstancesmay well have resignedfrom their existing employmentand put

themselves at considerablefinancial risk in the expectationof commencingwork in terms of an
agreement that is bindingon both parties at commonlaw. To deny the statutory protectionof the
securityof employmentconferred by the LRA in the interregnumbetween the conclusionof
a validcontractof employment and the physical commencement of work seems to me to be
contraryto a purposiveinterpretationof the definitionof “employee”.
—Wyeth SA(Pty)Ltd v Mangele& Others[2003]7 BLLR734 (LC) at 739-740.

TheLabourAppealCourt confirmed this purposive approach as being in keepingwith

cn
C)),23
ofthe
Constitution
(Wyeth
SA(Pty)
Ltd
vMangele
&Others
(2005)
26ILJ
749
Desertion
;
or abscondment by the employee

Me'Sno
statutory
definition
ofthe
terms
‘desertion’
and‘abscondment’
Often,
these
nap
Ofare
used
these assynonyms
terms. and
In general anemployer's
terms, however,disciplinary
code
an employee provides
is regarded itsown
as defini-
having de-
Se ,

feeH he/she
Ployer. fails
toreport
for
duty
with
the
intention
ofnever
returning
towork
for
f i i :

1393 °°