Recent Trends in Employment Litigation in South Africa

Annelise Petzer | SchoemanLaw Inc  

Category: Litigation | Employment Law  

Introduction 

South Africa has a complex set of laws and regulations governing employment, and recent years have seen significant developments in employment disputes. This article will review some of the most important trends in employment litigation in South Africa. 

Strike-related Misconduct 

Acts of violence, intimidation, and damage to property committed during the course of strikes are common in South Africa. Employers often approach the Labour Court on an urgent basis to seek an interdict against violence and intimidation. However, using interdicts is susceptible to abuse by employers with ulterior motives, and granting relief against striking employees can undermine collective action. 

In the case of the National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another1, the Constitutional Court held that interdicts against striking employees must be cautiously approached. While the Court accepted that strike-related misconduct constituted a blight on the South African industrial relations landscape, it also pointed out that using interdicts is susceptible to abuse by employers with ulterior motives and that granting relief against striking employees can undermine collective action. 

Amendments to the Employment Equity Act 

The Employment Equity Act of 1998 has been amended by the Employment Equity Amendment Act 4 of 2022. The amendments aim to promote diversity and equality in the workplace by introducing new measures. Here are some of the notable amendments introduced by the amended Employment Equity Act in South Africahttps://www.vandeventers.law/Legal-Articles/entryid/2195/understanding-the-amended-employment-equity-act-in-south-africa: 

The amendments restrict the application of certain sections of the Employment Equity Act to a reduced group of employers, relieving the administrative burden on smaller employers. The amendments introduce sectoral numerical targets to ensure equitable representation of historically disadvantaged groups based on race, gender, and disability at all occupational levels in the workforce. The amendments require employers to conduct a pay equity analysis and report on progress in achieving employment equity targets. The Employment Equity Act aims to achieve workplace equity by promoting equal opportunity and fair treatment by eliminating unfair discrimination and implementing affirmative action measures to ensure equitable representation in all occupational levels of designated groups. The amended Employment Equity Act introduces several noteworthy changes that demand attention. These revisions will reshape the landscape of employment practices in South Africa. 

The amendments to the Employment Equity Act will notably impact employers in South Africa. Understanding these effects is crucial for businesses to ensure compliance and effectively navigate the changing landscape of employment equity. Employers must promote equal opportunity in the workplace by eliminating unfair discrimination in any form. 

Harassment Code 

The new Harassment Code2 aims to guide employers on how to prevent and address harassment in the workplacehttps://www.dlapiper.com/events/2023/03/south-african-employment-update-2022-review-and-2023-preview. The Code defines harassment broadly and guides how to investigate and resolve complaints of harassment. Some of the key features of the Harassment Code: 

The Harassment Code defines harassment as any unwelcome conduct based on a person's race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. The Harassment Code guides how to investigate and resolve complaints of harassment in the workplace. The Code requires employers to have a written policy on harassment and to provide training to employees on how to prevent and address harassment. The Harassment Code requires employers to take proactive steps to prevent harassment in the workplace. Employers must create a culture of respect and dignity in the workplace and take steps to ensure that employees are aware of their rights and responsibilities. The Harassment Code requires employers to take complaints of harassment seriously and to investigate them promptly and impartially. Employers must ensure that the investigation is confidential and that the complainant is protected from retaliation. 

The Harassment Code is an essential development in South African employment law as it provides clear guidance to employers on how to prevent and address harassment in the workplace. Employers must take proactive steps to ensure that their workplaces are free from harassment and that employees know their rights and responsibilities. The Harassment Code requires employers to handle complaints of harassment seriously and to investigate them promptly and impartially. Employers who fail to comply with the Harassment Code may face legal action and reputational damage. 

Employment Protection Legislation 

Employment protection legislation applies to all employees who ordinarily work in South Africahttps://www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/WCMS_158919/lang--en/index.htm. The main employment law statutes of South Africa are the following: 

The Labour Relations Act3 ("LRA") 

The LRA governs freedom of association, collective bargaining, strikes and lockouts, and other forms of industrial actionhttps://www.replicon.com/regulation/south-africa/. The Act also establishes the Commission for Conciliation, Mediation and Arbitration (CCMA), which is tasked with resolving multifarious employment-related disputes, including freedom of association and general protection. The Labour Appeal Court hears appeals against final judgments of the Labour Court to decide questions of law reserved by the Labour Court. 

The Basic Conditions of Employment Act4 ("BCEA") 

The BCEA regulates working time, leave, termination of employment, recordkeeping, and prohibition of child labour in South Africahttps://www.replicon.com/regulation/south-africa/. The Act sets out the minimum terms and conditions of employment that employers must provide their employees. The Act applies to all workers and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service, and unpaid volunteers working for charities. 

 The Basic Conditions of Employment Act also provides for sectoral determinations, which are legal instruments that set minimum terms and conditions of employment for specific sectors or industries. The Employment Conditions Commission is responsible for recommending sectoral determinations to the Minister of Labour. 

Employment protection legislation in South Africa is comprehensive and covers all employees who ordinarily work in the country. The Labour Relations Act and the Basic Conditions of Employment Act are the leading employment law statutes in South Africa. Employers must comply with these Acts to ensure that they provide their employees with the minimum terms and conditions of employment required by law. The CCMA and the Labour Appeal Court are available to resolve employment-related disputes. 

Conclusion 

 South Africa's employment landscape is complex and constantly evolving, with significant developments in employment disputes in recent years. Employers and employees must stay up-to-date with the latest developments in employment law to ensure that they comply with the law and protect their rights. The main employment law statutes in South Africa are the Labour Relations Act and the Basic Conditions of Employment Act, which regulate various aspects of employment, including working time, leave, termination of employment, and freedom of association. South African law also prohibits discrimination in the workplace and requires employers to follow affirmative action policies to provide more opportunities for marginalized groups. 

 In conclusion, South Africa's employment landscape is shaped by a complex web of laws, regulations, and social factors. Employers and employees must navigate these challenges by staying informed about the latest developments in employment law and working towards creating inclusive and equitable workplaces. By doing so, they can contribute to the country's economic growth and social progress. Contact an expert at SchoemanLaw for your employment needs today.

Annelise Petzer | SchoemanLaw Inc  

https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/

https://schoemanlaw.co.za/our-services/employment-law/