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She is clearly an independent contractor. It follows that she can’t claim deemed employment simply because she earns less than the threshold. She must first qualify as an employee to do so.
It must be calculated on the employee’s salary as it was in the years before the reduction and on the lower amount for the period after the reduction.
No – the employer has a clear right, if not a civic obligation, to report a crime such as the alleged fraudulent misrepresentation to the SAPS. It may be perceived as a “threat” to persuade the employee to sign the MSA – but it’s not unfair or unlawful if the accusation is legitimate. If it’s not, the threat could itself constitute a crime of intimidation.
In this case, the fact that the employee hastily signed the MSA in response to the threat is a telling sign that the threat was probably legitimate – and it reveals of a guilty frame of mind.
I don’t think the “zero earnings” argument is relevant. The purpose of the path to arbitration in the CCMA for job applicants below the threshold is to provide a speedy remedy for vulnerable employees who claim discrimination at the entry point of employment. This necessarily implies that “earnings” for the job the applicant applied for would have been below the BCEA threshold. The value of the earnings for the job would have been stated and known before appointment. And it could be anything from zero up to the threshold. Without this remedy, “vulnerable” applicants would have to refer a discrimination dispute to the Labour Court which has general jurisdiction over discrimination disputes – a path which is beyond the reach of most vulnerable would-be employees.
The arbitrator’s duty is to make all reasonable efforts to contact the absent party and to find out the reason for the absence. Some of the examples referred to in the question would be reasonable efforts to satisfy the duty. It would not be reasonable to expect an arbitrator to apply some of the other examples – such as establishing if the party’s electronic system was working.
No – a mother is not entitled to both 4 months maternity leave and 10 days parental leave.
The BCEA is silent on this point. But there’s an existing principle in the BCEA to the effect that two types of leave must not run concurrently: For example, Section 5(a) says annual leave and notice periods may not run concurrently with any other periods of leave or during a notice period.
And there’s another general principle which applies a “purposive” interpretation for ambiguous or conflicting legal language and provisions.
The purpose of maternity leave is to provide time off work for a mother before, during and after the birth. The longer 4-month period aligns with this purpose.
The purpose of parental leave is to provide time off for a parent on the birth of a child. The purpose of “parent” means someone other than the mother – such as a father, spouse, relative etc. And the shorter 10 day period aligns with this purpose.
Yes – I agree with Ali that it would be fair to give a harsher sanction to an employee who operates heavy machinery than to a fellow employee does a less risky job. Context matters.
However, a zero tolerance rule for the type of misconduct, regardless of the risk factor, would enforce the parity principle. This would justify the same harsh sanction for all offenders of the zero tolerance rule.
Yes the employer was correct. The correct way for the employee to complain about the unfair suspension would be to refer an unfair labour practice dispute to the CCMA or bargaining council in terms of s186(2)9b) of the LRA.
Yes a commission only employee is entitled to the statutory leave entitlements. This applies if he or she is a full time employee and not an independent contractor.
The leave periods are the same as employees with salaries. The calculation of leave pay can be based on the average commission earnings in the past 3 or 6 months.
The protection of confidentiality does not cover misconduct by any party during the conciliation. If it did, the legitimacy of the conciliation process as a forum for good faith dispute resolution would be severely damaged. It can’t be used as a shield for commit wrongdoing.
An aggrieved party could report a Commissioner who uses threats to coerce a party into signing a settlement agreement to the Director of the CCMA. This would initiate an investigation to examine available evidence of alleged misconduct. And the complainant could make an application to the Labour Court for an order to have the settlement agreement set aside.
The main evidence would be testimony of parties about what they saw and heard in the conciliation. Contemporaneous notes of threats could be used to corroborate the oral evidence. So could any secret audio recording which a party may have made during the hearing.
It’s inherently difficult to prove coercion. So the odds are stacked against the complainant from the start to prove it on a balance of probabilities. The legal principle “caveat emptor” or “let the signer beware” is the most immediate legal hurdle to overcome. And there’s the instinctive perception that the complainant’s real problem is “signer’s remorse” and is looking for a way to nullify the agreement to escape liability.
No. The pain tablet he took was common cause. There was no evidence to prove he’d taken a soporific substance in addition to the pain tablet. So, the most probable cause of his drowsiness was the pain tablet he got from his employer. And pain tablets are known to cause “drowsiness”. This makes the employee’s version inherently probable. The arbitrator should accept it in the absence of a more probable version.
I agree with Michael that he could be paid 3 weeks. This is because the one-year FTC was employment and should be added to the 2-year stint of permanent employment.
On Anna’s point: An FTC can be terminated early for operational reasons. If so, the employee would be entitled to severance pay for more than one-years’ service. This assumes the FTC was for more than one year – or if a one-year FTC had been renewed for another period.No, the contractor has not acted within the law.
The change in the shift system is an operational requirement. The law requires an employer to consult with their employees about how an operational change will affect their conditions of employment. The purpose is to take whatever reasonable measures or alternatives may be available to preserve the employees’ existing conditions.
The contractor can’t simply change the conditions unilaterally. Nor can they threaten disciplinary action if the employees don’t accept the change. If there are no reasonable alternatives or other jobs available for the affected employees after genuine consultation, the contractor may only then be able to terminate the employees for operational reasons.
This would be possible regardless of the 5-year fixed term contracts and the absence of any reference to the contractor’s right to change the shift system.
