McCarthy Attorneys Inc

Workplace

A Fixed Term Employment Contract has a specific time period, with dates known to the employee. This contract is necessary when an employer wishes to employ someone for a particular period only (for example, when an employer needs to hire a temporary employee whilst an employee is on maternity leave or off for surgery). The dates where the employee will be leaving to go on maternity leave and return from maternity leave are made known to the temporary employee. A Fixed Purpose Employment Contract is used when an employer wishes to employ someone for a specific purpose, and it is difficult to determine how long it will take the employee to complete the project or task (for instance, planting, burning firebreaks, or entering data into a new computer system). Employers need to understand that when the end date is reached (fixed term) or the project is completed (fixed purpose), the contract must be terminated, and the employee joins the ranks of the unemployed. When employers use these contracts to avoid the implications of a permanent contract by re-employing the same employee repeatedly using one of these temporary contracts, employers risk the employee being viewed as a permanent employee by the CCMA. The test is whether the repeated renewal of temporary contracts has created the expectation of continued employment in the employee's mind. To avoid this risk, where employees have been employed in terms of temporary contracts, these employees should not be re-employed for a period of 3 – 6 months.

Presenting Evidence In CCMA Matters: The Benefits Of Comprehensive Heads Of Argument

Appearing at the CCMA can be stressful. Proper preparation can alleviate a lot of that stress. Preparing comprehensive Heads of Argument is part of that preparation. Heads of Argument are used to save time and trouble by directing the CCMA Commissioner’s attention to the appropriate and relevant portions of the record so that a proper analysis of the issues can occur.

Heads of Argument are a compilation of the significant points and the reasoning process of one’s argument. Heads of Argument are used to save time and trouble by directing the CCMA Commissioner’s attention to the appropriate and relevant portions of the record so that a proper analysis of the issues can occur. It also helps the Commissioner to deliver an award expeditiously.

The purpose of Heads of Argument is to deliver a persuasive argument to the Commissioner to rule in one’s favour. It helps the Commissioner to understand what one is addressing and what one needs to prove to be successful.

Heads of Argument:

present the relevant points or arguments relied on in a manner that is concise and easy to understand; and

provide a summary of the evidence to be presented and advance submissions concerning it; and

deal with legislation, case law, and past judgments pertinent to the case at hand; and

contain the necessary documentary evidence (such as photographs, minutes, notices, transcripts, etc.) as Annexures. This is particularly important as all the required documents will be centralised and easily accessible.

The Commissioner may want time to consider both arguments and will draft a written award at a later stage. In these instances, Heads of Argument serve as a reminder of one’s argument. It is, therefore, imperative that the Heads of Argument are detailed, contain all the necessary documents, and will provide the Commissioner with all the pertinent points of your case.

It is advisable to seek legal assistance with drafting Heads of Argument in a CCMA matter to ensure that it contains all the necessary information and is prepared following the Rules and the Practice and Procedure Manual of the CCMA.

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Formalising The Domestic Worker Sector: The Effect Of The Compensation For Occupational Injuries And Diseases Amendment Bill

Sweeping the path to formalising the domestic worker sector: the effect of the compensation for occupational injuries and diseases amendment bill

The Compensation for Occupational Injuries and Diseases Amendment Bill (the “Bill”) introduced to Parliament in September 2020 introduces many changes that employers need to be aware of.

This Bill builds on the judgment of the Constitutional Court in Mahlangu v Minister of Labour [2020], where the rights of domestic workers were recognised, and the Court sought to bring more inclusivity to the existing legislative framework to protect the domestic worker sector further.

Until recently, domestic workers were excluded from the protection of the Compensation for Occupational Injuries and Diseases Act (COIDA) and could not claim its benefits, such as compensation for workplace injuries. Employers now also need to register domestic workers for UIF and must pay towards the Compensation Fund, something which was previously not required.

Another new aspect introduced in the Bill is a multi-disciplinary employee-based process for employees who suffer occupational injuries or diseases. Through this process, employers must attempt to rehabilitate and reintegrate affected employees to enable them to return to work. This will compel employers to exhaust all options before resorting to dismissal. 

 

The Bill also establishes inspectors to investigate complaints and monitor and enforce compliance. These inspectors will be able to issue compliance orders, which will become an order of court. They will further have the authority to enter workplaces and even homes to carry out their duties, provided they have received permission to enter from the occupier or owner.

This Bill, therefore, aims to widen the scope of protection afforded to employees and now includes domestic workers within its ambit, thus formalising the domestic worker sector. With this increased protection for employees, on the one hand, comes a heavier burden for employers to comply with on the other.

Employers would do well to seek legal assistance in navigating the complexities of the labour field at this time to aid them in their compliance duties.

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Problems And Solutions For Employee Accommodation

Problems and Solutions for Employee Accommodation

All landowners, including farmers and owners of lifestyle properties, who live outside urban areas, are subject to the Extension of Security of Tenure Act (ESTA). Therefore, all employees, including farm workers and domestics, who reside on these properties, are afforded the protection of ESTA. Thus, those employees who are accommodated on the property may not be evicted from the property without a court order.

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When All Employees Are Equal, But Some Are More Equal Than Others – Justifiable Discrimination In The Workplace

When All Employees Are Equal, But Some Are More Equal Than Others – Justifiable Discrimination In The Workplace

If an employer does this because of any of the grounds listed in section 6(1) of the EEA (including gender, age, disability, religion etc.), it will automatically amount to unfair discrimination. If an employer does this because of any of the grounds listed in section 6(1) of the EEA (including gender, age, disability, religion etc.), it will automatically amount to unfair discrimination.

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