This is the fourteenth alert notice of those issues that will cause YOU to slip and definitely trip in 2024. These issues will be incorporated into our famous seminar textbook as well as our highly sought-after PowerPoint presentation.
The attached notice deals with the following ‘tricky issues :
Harassment at the workplace, how to deal with a hostile work environment, unfair discrimination on an arbitrary ground, the implementation of a differentiating wage structure and the consequences of same, the link between a medical certificate and the allegation of harassment, the link between the withdrawal of the approval for annual leave and the allegation of harassment, the link between the institution of misconduct investigations and the allegation of harassment, transfers, demotion and probation and the potential link to an allegation of harassment, the difference between rulings made by the CCMA (or a bargaining council) as to its jurisdiction at conciliation as opposed to its jurisdiction at arbitration proceedings, the restructuring of an employer’s wage structures and the calculation of remuneration – simply put, what is to be included and what is to be excluded?
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- Harassment is not defined in the Employment Equity Act 55 of 1998 (EEA). In s6(3) of the EEA, the legislature only informs us that harassment is a form of unfair discrimination. Item 4 of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), on the other hand, indicates how ‘harassment’ is generally understood to exist. How did the labour court recently give content to such term?
- Item 4.6 of the Code describes a ‘hostile work environment’. How did the labour court recently utilise this description to draw a distinction between the exercise of managerial powers and harassment?
- With reference to, inter alia, Mnyandu v Padayachi 2017 (1) SA 151 (KZP) and Moos v Makgoba [2022] JOL 54225 (GP), how did the labour court recently apply the objective test applicable when evaluating whether or not harassment has taken place?
- With reference to, inter alia, Shoprite Checkers (Pty) Ltd v Samka and Others [2018] 9 BLLR 922 (LC) and Aarons v University of Stellenbosch [2003] 7 BLLR 704 (LC), how did the labour court recently give content to the word ‘arbitrary’ within the unfair discrimination environment?
- The labour appeal court, in SA Broadcasting Operation v CCMA and Others (2010) 31 ILJ 592 (LAC), held that, in that case, the discrimination had no end date and was therefore ongoing and would only terminate when the employer stopped implementing the different wages. On what basis did the labour court recently hold that the above approach is not applicable when an employee complains of harassment as constituted by various once-off acts on the part of the employer?
- The labour court recently restated the principle that, in the absence of any of the grounds listed or unlisted, differentiation lacks the legal basis to constitute an actionable claim when unfair discrimination has been alleged. How did the labour court apply such approach?
- With reference to, inter alia, Law Society of SA and Others v President of the Republic of South Africa and Others 2019 (2) SA 30 (CC), how did the labour court recently express itself as to the requirement that there must be a rational connection between the exercise of power and the purpose sought to be achieved through the exercise of such power, when applied within the public sector?
- The labour court recently had to deal with the scenario where an employer questioned a medical certificate and held the viewpoint that it did not have an obligation to pay the employee producing such medical certificate for sick leave, seeing that the certificate did not state that the employee was unable to work for the duration of absence on account of sickness or injury. On what basis did the labour court indicate that the conduct of the employer does not amount to harassment?
- With reference to s20(10) of the BCEA and Member of the Executive Council for Health, North West Province v SA Medical Association and Another (2022) 43 ILJ 134 (LAC), on what basis did the labour court recently find that the withholding of approval for annual leave does not amount to harassment?
- In terms of s186(2)(b) of the LRA, it is an unfair labour practice to be subjected to unfair disciplinary action short of dismissal. If this occurred, is an employee entitled to ignore his/her protection under the LRA and conveniently choose to allege harassment?
- On what basis did the labour court recently hold that the institution of forensic investigations or the institution of misconduct investigations does not amount to harassment?
- On what basis did the labour court recently hold that transfers, demotion and probation are to be challenged as unfair labour practices in terms of s186(2) of the LRA and do not, in themselves, form the basis for a harassment claim?
- Rule 14 of the CCMA rules requires the commissioner to establish that the CCMA has the jurisdiction to conciliate the dispute. If a ruling is made by a commissioner to the effect that the CCMA does not have jurisdiction to conciliate the dispute, that decision is final and binding unless it is rescinded or reviewed. How does rule 14 fit into the structure of the CCMA rules when considering whether the CCMA has jurisdiction in terms of rule 22 of the CCMA rules to arbitrate the dispute?
- Rule 22 of the CCMA rules explicitly deals with the requirement that a commissioner is to make a determination as to the jurisdiction of the CCMA when the issue arises during arbitration proceedings. What are the circumstances recently identified by the labour court as to when such a determination will be required?
- With reference to MEC for Finance, Eastern Cape and Others v Legal Practice Council and Others 2023 (2) SA 266 (ECMk), on what basis did the labour court recently hold that the doctrine of functus officio is not applicable to a jurisdictional ruling made during conciliation when, in subsequent arbitration proceedings, the issue of jurisdiction is once again raised?
- With reference to Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC), on what basis did the labour court recently determine that the doctrine of res judicata is not applicable to a conciliation ruling made during conciliation when the issue of jurisdiction is subsequently raised during arbitration?
- When calculating a wage for the purposes of the National Minimum Wage Act 9 of 2018 (NMWA), in terms of s5(1)(c), the following is to be excluded: ‘gratuities, including bonuses, tips or gifts’. On what basis did the labour appeal court recently determine that a bonus to which an employee is contractually entitled is not to be excluded in terms of s5(1)(c) of the NMWA but, indeed, is to be taken into account in the calculation of wages for the purposes of such Act?
- Having determined the meaning of gratuity in terms of s5(1)(c) of the NMWA, the labour appeal court applied the eiusdem generis rule. On the basis of the application of such rule, how did the labour appeal court recently determine the content of bonuses, tips or gifts?
- ‘Provident fund contributions’ is not an item specifically mentioned in s5(1) of the NMWA. On what basis did the labour appeal court recently determine that such provident fund contributions do not fall under any of the exclusions listed in s5(1) of the NMWA and are to be taken into account when calculating wages for the purposes of such Act?
