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Frequently asked questions
Related to employment in South Africa
An employer’s obligation to consult employees or their representatives arises when the employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements. In other words, whenever the economic, technological or structural reasons of an enterprise are such that it requires the reorganisation of the workplace which may not result in the termination of employment of any employee, an employer is obliged to consult prior to making a final decision on the introduction of the proposed changes even if such changes may not necessarily lead to the termination of any employee’s employment. [Read more]
There are a few differences and considerations between section 189 and section 189A of the LRA, these include the following:
- Large v Small scale retrenchments;
- Minimum time periods for consultation prior to dismissal;
- the possibility of independent facilitation of the consultative process; and
- the possibility of industrial action as opposed to adjudication by the Labour Court following the consultative process if the dismissals are still in dispute…[Read more]
The risks is that employees may challenge the retrenchment on a procedural or substantive basis. Procedural by way of an urgent application to the Labour Court under section 189A(13) and substantive by referring a dispute to the Labour Court or by engaging in industrial action. [Read more]
Taking disciplinary action against an employee depends on the circumstances and seriousness of a particular offence. There are many forms of disciplinary action including verbal, written and final warnings as well as dismissal. [Read more]
As a starting point, schedule 8 of the Code of Good Practice: Dismissal, sets out the procedural requirements when dismissing and employee for Misconduct. The following requirements are summarised as follows: [Read more]
Item 9 of the Code of Good Practice: Dismissal sets out the guidelines in cases of dismissal for poor work performance. The guidelines clearly distinguish between establishing the fact of poor performance, affording the employee an opportunity to remedy the defective performance, and the consequences of any inability to remedy the defective performance.[Read more]
- A dismissal based on incapacity may be viewed as a no-fault dismissal. In other words, it may not necessarily be the employee who is deliberately responsible or at fault for the termination of employment.
- It is important to have regard to Item 10 and 11 of the Code of Good Practice: Dismissal, which sets out the guidelines in cases of dismissal arising from ill health or injury. In addition, have regard to the employer’s policies in relation to incapacity. [Read more]
Collection of personal information related to employees
Yes, employers are generally permitted to conduct background checks on both job applicants and employees, but there are specific regulations and legal requirements that must be followed to protect the rights and privacy of individuals. The key legislation that governs background checks in South Africa includes the Protection of Personal Information Act, 2013 (POPIA), the Labour Relations Act, 1995, and the Constitution of the Republic of South Africa. [Read more]
Yes, employers are generally permitted to conduct credit checks on employees, however, there are specific legal requirements and restrictions that must be followed to protect the rights and privacy of individuals. The following considerations must be taken into account regarding conducting credit checks:[Read more]
Section 7 of the Employment Equity Act provides that medical testing of an employee is prohibited unless legislation permits or requires the testing or it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job. [Read more]
As a starting point, it is important to note that employers are obliged to provide and maintain a safe and healthy working environment. To this end, section 8(1) of the Occupational Health and Safety Act, 1993 provides that “every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.” This includes ensuring that employees are not under the influence of intoxicants whilst on duty. [Read more]
In terms of POPIA, an employee’s personal information and that of his/her dependents may only be processed (collected, stored, shared or destroyed) by the employer in certain circumstances.
The Regulation of Interception of Communications and Provision of Communication- Related Information Act, 2002 (RICA) allows for certain communications to be intercepted, especially where those communications are sent in the course and scope of the business of the employer, and where the employer is a party to those communications. [Read more]
The general rule of RICA is that all intentional interceptions of any sort of communications during the course of its occurrence or transmission in the Republic are prohibited. In addition, any recording of a conversation that has been done without the consent of a party thereto is deemed as unlawful.
However, in terms of RICA, there are a number of exceptions to this Rule, wherein consent is not required as follows: [Read more]
Access to a manager’s performance review notes can be a complex issue, and it can vary depending on several factors to be taken into account. [Read more]