Employment Law

A Matter of Trust


Every employee has a duty to protect the interests of his/her employer. This derives from the common law duty of good faith that the employee owes to the employer, and is incumbent on every employee.

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Sit Up & Take Notice!

One of the more aggravating things that employees do from time to time, is to march into the office and ‘resign with immediate effect’.   Of course, there is no such thing, and any breach of the notice provisions, is the same as any other breach of contract

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Labour Brokers - A possible move?

A draft bill recently published in the UK prohibits an employer from treating an 'agency worker' less favourably than what it terms a 'comparable direct worker'.  If passed, this would then make it unlawful for an employer to use brokered labour on lower or lesser terms and conditions of permanent full time employees.

This is a very interesting step, as it does not seek to ban the practice of labour broking, which certainly has a place in any economy, but ensures that such an employee could not be treated as a source of cheap labour.

Could a similar step be taken in SA? Certainly, in a philosophical sense it would be attractive to government, and possibly even unions, but it does not deal with the complaint that such employees are not subject to the requirement of procedurally fair termination - at the hands of the employer using the brokered labour, which of course, is one of the attractions for the user.

Could it found a claim for unfair discrimination in pay and conditions under the equality provisions (i.e. equal pay for work of equal value) of the EEA?  It seems unlikely, unless the action were to be based on some act of unfair discrimination, but it might be an interesting avenue for exploration.

Certainly, there is nothing to prevent unions to get in and organise brokered labour - after all, this is what unions do, and then demand pay equality.  The LRA would provide a channel for this.

Either way, some action is to be expected.  As we have said, we cannot see labour broking being banned outright, despite the Minister of Labour publically and rather dramatically stating that he would be prepared to die in the attempt

Social networking, Privacy & The job seeker

Recently we were asked a question about privacy issues surrounding social networking sites and whether or not it is acceptable/legal to base judgement of potential employees on their social network profile?

The impact of social network sites such as Facebook on the workplace has only recently started coming to light in South Africa. It would be acceptable to check out a person’s profile, provided that they had it listed as publically viewable. If it is publically viewable then they have in effect published their information on a public forum, meaning that it would be perfectly acceptable to check up what they do, how they behave etc.

It is probably safe to assume that whenever information is in the public domain, it could be considered not to be private.

Should the information not be published to the public then accessing the information would likely impact on the individual’s right to privacy. An example of this would be if the employer was to speak to a third person, who was friends with the potential job candidate. If the third person provided the employer with access to the job-seekers profile, then that would be a breach of the job seekers right to privacy.

It is not uncommon for companies overseas to arrange for a media search when hiring a new employee, in order to get an understanding of any public statements that have been made by the employee in question. Likewise, searches on sites like Google, Twitter, Facebook and MySpace are becoming more and more common, with numerous instances of candidates being refused employment because of pictures or statements showing them partaking in various forms of illicit behaviour which more conservative employers would find distasteful.

Social networking, Privacy & The job seeker

Climate Hots Up - Despite Winter Chills

The employment climate is hotter than it has been for at least a decade, and the events of the next six months will determine the forces that will impact upon our employment surround for the next severall years.

Strike action is at the highest level in a long time, and several key negotiations are still under way.  With COSATU unions still firmly focussed on double figure increases, and employer's being reluctant to move upwards towards the union target range, more strikes seem inevitable,  The Public Sector negotiations will also test Government stance.

The labour broker issue will not lead to outright banning, but, as we suggested, to regulation.  We think it is also probable that issues such as 'independent contractor' clarification, as well as further light as to who exactly is in an employment relationship will also surface as a part of this intervention.

Relationship between Government and COSATU will also be tested going forward.  The unoion confederation is more confident and vocal than it has been for some time, and Government no longer needs to make electoral promises, but to deliver.  The unions will be pushing hard - we have yet to see how Government will respond.

It looks as if much of the labour landscape as we know it at present might be in for some re-arrangement.


Climate Hots Up - Despite Winter Chills