FAQs

X is employed by Sell-IT-All (Pty) Ltd (“the employer”) as a data capturer on a fixed-term contract for 6 months. The rationale behind X’s fixed-term contract is that he is “replacing someone who is temporarily absent” in the workplace of the employer. X earns R9000.00 per month. Apart from X, the employer also has permanent employees who are employed as data capturers who earn R12000.00 per month. They do the same or similar work as X. Is there an obligation on the employer to treat X not less favourably in comparison to the permanent employees, even though X is only employed on a fixed-term contract?

ANSWER: 

In terms of section 198B(3) and (4) of the Labour Relations Act 66 of 1995, as amended (“LRA”), an employer may not employ an employee earning below the threshold (R205433.30 per annum) on a fixed-term contract for longer than 3 months unless there is a justifiable reason. In the absence of the justifiable reason, as envisaged in section 198B(5) of the LRA, the fixed-term contract employee would be deemed to be permanent.

In considering the facts, it is evident that there is a justifiable reason for fixing X’s contract of employment, being that “he is replacing someone who is temporarily absent”. Consequently, X would not be deemed to be permanent despite his fixed-term contract exceeding the period of 3 months.

Nonetheless, section 198B(8)(a) of the LRA provides that “an employee employed in terms of a fixed-term contract for longer than 3 months must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment”. It should be noted that this provision is not subject to the existence of a justifiable reason to fixing the contract of employment for longer than 3 months. Whether or not there is and/or was a justifiable reason for exceeding the period of 3 months is irrelevant when considering the application of section 198B(8)(a) of the LRA as quoted above herein.

Taking this into consideration, it follows that there is an obligation on the employer not to treat X less favourably to the other permanent employees doing the same or similar work as X, unless the employer has a justifiable reason for the different treatment. The justifiable reasons which would justify different treatment include (but are not limited to): seniority, experience or length of service, merit, the quality or quantity of work performed, or any other criteria of similar nature [See: section 198D(1) of the LRA]. In the absence of a justifiable reason for different treatment on the part of the employer, X must be “topped-up”.

X is employed by Sisonke Security Agent (Pty) Ltd (hereinafter referred to as “SSA”) as a Grade C Security Guard.   The nature of SSA’s business is procuring for or providing to clients, for reward, other persons who perform work for the client.  Due to the nature of SSA’s business, X was placed on the premises of a client, Helmie Housing Estates (“the client”), in order to provide security services.  X worked at the aforementioned premises for 4 months and was remunerated R6000.00 per month by SSA.  On 10 January 2020, whilst rendering his services, X was removed from the client’s premises by SSA.  In justifying the removal, SSA submitted that the client is unhappy with X’s services.  In considering the given facts, can X refer an unfair dismissal dispute against SSA?

ANSWER:

In terms of section 198A(1) of the Labour Relations Act 66 of 1995, as amended (“LRA”), a ‘temporary service’ means work for a client by an employee –

(a) for a period not exceeding three months;

(b) as a substitute for an employee of the client who is temporarily absent; or

(c) …

Taking into consideration the above cited provision, it is evident that X was not rendering a temporary service as he worked for the client for more than three months, nor was he a substitute for an employee of the client who is and/or was temporarily absent.

Section 198A(3)(b) provides that an employee not performing such temporary service for the client is –

(i) deemed to be the employee of that client and the client is deemed to be the employer; and

(ii) …

Consequently, since X was not rendering a temporary service for the client, and as a result of section 198A(3)(b), he is and/or was deemed to be the employee of the client.  In determining the meaning of “deeming” one should consider the Constitutional Court (“CC”) judgment in Assign Services (Pty) Ltd v NUMSA and others (CCT 194/17) ZACC 22 [2018].  The CC, amongst other things, held that the sole employment relationship provides greater protection than dual employers, as it provides certainty and security.  The client becomes the sole employer for the purposes of the LRA.

It follows that X, when referring the unfair dismissal dispute to the CCMA, ought to cite the client as his employer and not SSA.  The client is the employer for the purposes of “dismissals” because the latter is regulated by the LRA.  It should be noted that section 198A does not apply to employees who earn above the minimum threshold, being R205 433.30 per annum (R17119. 44 per month).

On 01 January 2020, X applied for a job at ZigZag (Pty) Ltd (hereinafter referred to as “the employer”) as a cleaner. Subsequent to submitting her application, X was shortlisted and invited to attend an interview. During the interview the employer noticed that X was pregnant. As a result of this, the employer did not give the job to X. Can X refer an unfair discrimination dispute to the CCMA, taking into consideration that the Employment Equity Act No. 55 of 1998 (as amended) only prohibits unfair discrimination against “employees”?

ANSWER:

In terms of section 6 of the Employment Equity Act No. 55 of 1998, as amended (“EEA”), “No person may unfairly discriminate, directly or indirectly, against an employee…” It should be noted that the aforementioned provision prohibits unfair discrimination against “employees”. The question which remains is whether X, at the time of the alleged unfair discrimination, was an “employee” of the employer.

Section 1 of the EEA provides that:

“employee” means any person other than an independent contractor who –

(a) works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) in any manner assists in carrying on or conducting the business of an employer.

When considering the aforementioned definition, it appears that X falls outside the definition of an “employee” and thus cannot refer an unfair discrimination dispute to the CCMA.

However, despite the abovementioned, section 9 of the EEA provides that: “…for the purposes of sections 6, 7, and 8, an ‘employee’ includes an applicant for employment.”  Therefore, by virtue of section 9 of the EEA, it follows that X is considered to be an “employee”. As a result of this, X can refer the dispute to the CCMA.

X is dismissed by his employer, Rubber Stamps (Pty) Ltd, for committing misconduct. Subsequent to being dismissed, his union referred an unfair dismissal dispute to the CCMA. The employer filed an application to be legally represented at the CCMA and same was granted by the CCMA. The employer’s legal representative decided to contact X’s union for the purposes of holding a pre-arbitration conference. Is there a duty on the union to hold such conference with the employer’s legal representative? What is the purpose of the pre-trial conference?

ANSWER:

In terms of Rule 20(1)(a) of the CCMA Rules, “the parties to an arbitration must hold a pre-arbitration conference if both parties are represented by a trade union, employer’s organisation, legal practitioner and/or candidate attorney”. This Rule is mandatory if, amongst other things, both parties are represented. Therefore, based on the given facts, it follows that there is a duty on the union and/or employee to hold the pre-trial conference with the employer and/or employer’s legal representative. This must be convened at least 14 days prior to the date scheduled for arbitration. The purpose the pre-arbitration conference is for the parties to attempt reaching consensus on the
following –

1. any means by which the dispute may be settled;
2. (b) facts that are agreed between the parties;
3. (c) facts that are in dispute;
4. (d) the issues that the CCMA is required to decide etc.
   

Despite the above, the CCMA commissioner has a discretion to continue with the arbitration despite non-compliance with Rule 20(1) cited above. However, any non-compliance will be taken into account when considering costs at the conclusion of the arbitration hearing.

On 01 October 2019, owing to financial problems, X informally borrowed R5000.00 from his employer, Siyasebenza (Pty) Ltd (“the employer”). Subsequent to the latter, and as a result of an investigation conducted by the employer, X was implicated in an alleged theft of money in the workplace. Consequently, X was disciplined for committing serious misconduct (i.e. theft). During the disciplinary hearing X was found guilty and the chairperson recommended a summary dismissal as a sanction in terms of the aforementioned circumstances. As a result of this, on 14 October 2019, the employer issued a notice of termination to X. Can the employer deduct the R5000.00 owed by X from his last salary and/or statutory monies owed?

ANSWER:

In terms of section 34(1) (a) of the Basic Conditions of Employment Act 75 of 1997, as amended (“the BCEA”), “an employer may not make any deductions from an employee’s remuneration unless, … the employee in writing agrees to the deduction in respect of a debt specified in the agreement…” Furthermore, it should be noted that a deduction in terms of subsection (1) (a) [as highlighted above], may be made to
reimburse an employer for loss or damage only if [section 34 (2)] – the loss or damage occurred in the course of employment and was due to the

1. fault of the employee;
2. the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deduction should not be made;
3. the total amount of the debt does not exceed the actual amount of loss or damage; and
4. the total deductions from the employee’s remuneration … does not exceed onequarter of the employee’s remuneration in money.

In consideration of the facts, the employer cannot deduct the R5000.00 from X’s salary because there is no written agreement, as required by section 34 (1) (a) of the BCEA, permitting the employer to make the deduction. The money was borrowed informally.

In any event, even if the deduction was permitted (i.e. there was a written agreement permitting the deduction), the employer would have to comply with section 34 (2) (a) – (d), as highlighted above (i.e. amongst other things, deduct only one-quarter of X’s remuneration), prior to making the deduction.

On 25 October 2019, as a result of an investigation conducted by the employer, X was implicated in an alleged theft of money in the workplace. Consequently, X was issued with a notice to attend a disciplinary hearing from his employer. The disciplinary procedure
and/or policy in the workplace specifies that:

“An employee is entitled to be assisted in the disciplinary hearing by a fellow employee only. No outside representation is allowed during a disciplinary hearing…”

Despite this, on the date of the disciplinary hearing, X arrived with an external legal representative (“attorney”). The chairperson of the disciplinary hearing, due to the aforementioned clause in the employer’s disciplinary procedure and/or policy, instructed X’s attorney to leave the disciplinary hearing. Was the chairperson of the disciplinary hearing allowed to do this solely on the basis of the above quoted clause?

ANSWER:

Employers and/or chairpersons of disciplinary hearings are generally of the view that clauses similar to the one quoted above do not grant them a discretion to allow external legal representation in disciplinary hearings.

In MEC: Department of Finance Economic Affairs and Tourism: Northern Province v Mahumani [2005] 2 BLLR 173 (SCA), the Supreme Court of Appeal held that such clauses in disciplinary procedures and/or polices should not be lightly departed from. However, there
may be circumstances in which it would be unfair not to allow external legal representation in disciplinary hearings.

In terms of our common law a person does not have an absolute right to be legally represented before tribunals other than courts of law [See: Dabner v SA Railways and Harbours 1920 AD 583 at 598]. However, disciplinary hearings need to be fair and if, in order to achieve such
fairness in a particular matter external legal representation may be necessary, the chairperson of the disciplinary hearing has the power to exercise his or her discretion and allow same. The chairperson cannot merely deprive external legal representation in a disciplinary hearing
solely on the basis that the employer’s disciplinary procedure and/or policy does not cater for same. The chairperson will have to consider all the surrounding circumstances (i.e. the reasons submitted by the employee for external legal representation) and exercise his or her discretion objectively. The employer’s disciplinary procedure and/or policy cannot trump an employee’s right to a fair disciplinary hearing.

On 18 October 2019, owing to load shedding, the employer sent following e-mail to all its employees:

“Kindly take note that there will be no electricity at the office the entire morning. You are thus requested to go home as you will not be able conduct your regular working activities. Unfortunately, we will apply the principle of ‘no work no pay’ for the remainder of the day as you will not be rendering any services during load shedding.”

Is there a duty on the employer to remunerate employees during load shedding?

ANSWER:

It should be noted that in terms of our common law and the Basic Conditions of Employment Act 75 of 1995, as amended (“BCEA”), an employment contract is reciprocal. In other words, the parties to the contract, being the employer and an employee, agree that the employee will work for the employer and in return, the employer will remunerate the employee accordingly. It follows that if the employees
tender their services, the employer is obliged to pay the employees, irrespective of whether the employees were able to perform their duties. The employer’s duty to pay the employees is not subject to actual performance of the work, but from the tendering of services.

In consideration of the facts, if the employees offered to do the work and/or tendered their services, and the employer could not provide work due to load shedding, the employer is still obligated to pay the employees their remuneration. Therefore, if the employees leave the workplace, as instructed by the employer, they would still be entitled to their full remuneration.

X is employed as a cleaner at Wash N’ Rinse (Pty) Ltd (“the employer”). X earns R8000.00 per  month. Despite rendering her services for the entire month of September 2019, X’s employer fails and/or neglects to pay X’s salary despite it being due. X refers the dispute to the CCMA claiming her outstanding salary. Does the CCMA have jurisdiction to deal with X’s dispute? If not, should X institute a civil claim (i.e. Magistrate Court and/or Labour Court and/or Small Claims Court etc.)?

ANSWER:

n terms of section 73A(1) of the Basic Conditions of Employment Act 75 of 1997, as amended (“BCEA”), “…an employee or worker … may refer a dispute to the CCMA concerning failure to pay any amount owing to that employee or worker in terms of … a contract of employment…” The aforementioned provision does not apply to employees or workers earning in excess of the threshold prescribed by the Minister, being R205 433.30 per annum. Taking into consideration the facts: X earns below the threshold and the amount which is due,
being X’s salary, is derived from X’s contract of employment. It follows that section 73A(1) is applicable and X can refer the dispute to the CCMA. The CCMA will conciliate the dispute. In the event that conciliation fails, and after certifying that the dispute remains unresolved, the CCMA will immediately arbitrate the dispute (Con-Arb).

X would have had to institute the claim in either “…the Labour Court, the High Court or, subject to their jurisdiction, the Magistrates’ Court or the small claims court” if she earned above the threshold [See: section 78A(3) of the BCEA].