Workplace laws to look out for in ’08

2008-01-15 00:00

The year 2007 can be dubbed “The Year of the Strike”, argues Michael Maeso, partner of Shepstone & Wylie and head of the firm’s employment law department.

Statistics show that 2007 was plagued by the most strikes since the 1994 elections, and it seems that no industry was spared, says Maeso.

The public sector strike experienced high levels of intimidation and violence; the motor manufacturing industry managed to conclude their annual negotiations without too much strife, while the motor retail industry was not so lucky, and the construction industry learnt how strict deadlines always play into the hands of unions.

“We have also seen an increase in the amount of fraud and white collar crime in the employment context, and have worked closely with forensic auditors to make sure that evidence and charges arising from the audits are used to the employer’s best advantage when taking disciplinary action,” he says.

Last year also produced a number of important judgments, the most famous being the Sidumo vs Rustenburg case, where the Constitutional Court changed the test for review and put to death, once and for all, the reasonable employers’ test.

At a practical level employers will have to be more diligent in the manner in which they present evidence in support of sanction at disciplinary inquiries and at CCMA arbitrations.

Another significant change in the law is that if an employee is reinstated, back pay is paid from the date of dismissal to the date of resuming employment, and is not limited to 12 or 24 months. This payment is based on the employee’s total remuneration, which would include benefits.

Maeso points out that this could create serious practical issues in relation to retirement fund membership where the fund benefits were paid out to the employee on dismissal and have been spent.

During the year the Labour Department cracked down on employers in respect of their employment equity obligations in terms of the Employment Equity Act. This included a “name and shame” campaign and getting various court orders against employers.

The Labour Department is reviewing the earnings threshold in terms of Section 52 of the Basic Condition of Employment Act.

Currently that threshold is R115 572 per annum and all employees earning more than the threshold are excluded from certain sections of the Basic Conditions of Employment Act, including ordinary hours of work and overtime. Also, the maximum income threshold of the Unemployment Insurance Fund has been increased to R149 736 per annum or R12 478 per month or R2 879,53 per week.

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