How much free water do you need?

Posted in Basic rights, Questions and Answers with tags , , on October 20, 2009 by labourlawoffices

The City of Johannesburg limited the free basic water supply to Phiri Township residents to 25 litres per person per day or 6 kilolitres per household per month.  It also introduced a pre-payment water system.  This meant that residents could only get water if they had pre-paid for supply of water.

The High Court set aside this arrangement finding it to be unconstitutional and unlawful and ordered the City to provide each Respondent and other similarly placed residents of Phiri Township with a free basic water supply of 50 litres per person per day.

On appeal the Court stated that the provisions of the Water Services Act, together with the regulations promulgated in terms thereof, were not intended to detract from the right of everyone of access to sufficient water in terms of the Constitution.  They were intended to achieve a progressive realization of those rights.  Circumstances, however, differed which made a dramatic difference to the water required by different households and residents.  The Court held that a right of access to sufficient water could not be anything less than a right of access to such quantity of water that was required for dignified human existence.

The quantity of water that was required for dignified human assistance would depend on the circumstances of the individual concerned.  In the case of the residents of Phiri, the evidence established that the minimum supply provided for in the legislation and the regulations did not constitute sufficient water for leading a life in human dignity.

On the evidence presented the Court held that 42 litres of water per resident in Phiri per day would constitute sufficient water in compliance with the Constitution.

Although Section 27 (1) of the Water Systems Act provided that everyone had the right to sufficient water, everyone did not have a claim for the immediate fulfillment of that right.  The Court stated that a local authority such as the City was required only to act reasonably and to progressively fulfill its obligation to ensure that everyone had access to sufficient water.

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Can an employer withold payment of pension benefits?

Posted in Questions and Answers, Retirement with tags , on October 13, 2009 by labourlawoffices

Section 37 D (1) (b) of the Pension Funds Act, 1956 allows a Pension Fund a discretion to withold payment of an employee’s pension benefit in respect of an employee’s liability for compensation in respect of any damage caused to the employer by reason of any theft, dishonesty, fraud or misconduct by the employee.

The Labour Court has had no hesitation in giving practical effect to this provision and has been prepared to order a Pension Fund to withhold payment of a member’s pension benefits pending the determination or acknowledgement of such member’s liability as aforesaid.  In so doing the Pension Fund has to balance the competing interests between the prospects of the employer’s claim and the potential prejudice an employee may suffer if not permitted to access his pension benefits on an urgent basis.

Where to go with an individual retrenchment dispute?

Posted in Dismissals, Questions and Answers, Unfair Dismissal with tags , , , on October 8, 2009 by labourlawoffices

The powers of a CCMA or Bargaining Council Commissioner in respect of procedural unfairness in individual operational requirements dismissals became problematic when a Labour Court decision found that the CCMA has jurisdiction only if the dispute relates to substantive fairness.  If procedural fairness is at issue, the Court held the CCMA was deprived of jurisdiction and the matter had to be referred to the Labour Court.

However, a more recent Labour Court decision has decided differently on this issue.  The Court found that the wording of Section 191 (12) of the LRA is clear and a single employee dismissed for operational reasons is free to refer the dispute either to the CCMA or to the Labour Court on whatever procedural and or substantive fairness basis the attack may be mounted.

The CCMA has now also followed the guidance from the most recent Labour Court decision and it follows that an individually retrenched employee can prosecute an unfair dismissal claim in either the CCMA / Bargaining Council or the Labour Court, at his / her discretion.

Is the president above the law?

Posted in General with tags on October 1, 2009 by Maggie

The Centre for Constitutional Rights recently published a document concerning the question whether the President is above the law.  I enclose the article for your interest and consideration.  Click here to access it.

What do you think??

Can I have my lawyer at a CCMA hearing?

Posted in Disciplinary hearings with tags , on September 7, 2009 by labourlawoffices

Legal representation for an employee during a disciplinary hearing or at the CCMA is often a point of contestation.  The general position in regard to the right of an employee to be legally represented at a disciplinary enquiry and / or during CCMA / Bargaining Council arbitration includes the following:

The general rule is that legal representation at a disciplinary enquiry is not allowed unless the employer’s disciplinary code and procedure or the employee’s terms of employment permit it.  Generally, an employee may only be represented by a fellow-employee or trade union representative, and not a legal representative.  However, our Courts have decided that in cases where complex issues are concerned, legal representation may be permitted.  If the matter is unusually complex involving complicated evidence and difficult issues of law, the refusal of legal representation could result in the disciplinary proceedings been regarded as unfair.  However, if the matter is fairly straight forward, the evidence to be led clear, and no complex legal questions arise, the refusal of legal representation would in all likelihood be considered to have been fair.

The criteria for allowing legal representation is whether or not the failure to do so may render the disciplinary proceedings procedurally unfair, and this would in turn, involve a consideration of the nature and complexity of the disciplinary charges, the degree of factual or legal complexity, the availability of a co-employee representing the employee, and the legal capabilities of the complainant, the employee and the disciplinary chairperson.

When an employee requests to be legally represented at a disciplinary enquiry, and the company’s disciplinary code and procedure does not permit such representation, the employee should be informed that the company’s disciplinary code and procedure does not permit legal representation at disciplinary enquiries.  The employee may then be allowed to prepare an argument for the disciplinary enquiry chairperson to consider on why legal representation should be allowed, despite the provisions of the company’s disciplinary code and procedure.

The employee may rely on a legal representative at a disciplinary enquiry for this purpose.  The company would also be given an opportunity to be so represented during this aspect of the hearing.  At the disciplinary enquiry the chairperson will hear the legal representative only on the issue of why legal representation should be allowed.  The employer representative or legal representative for the company will also be granted an opportunity to argue the matter.

The chairperson of the disciplinary enquiry will then apply his / her mind to the question whether fairness in the circumstances requires that legal representation be permitted. In considering the request, the disciplinary enquiry chairperson will consider all the circumstances of a case in order to determine whether the refusal would render the proceedings procedurally unfair.  The chairperson will not be allowed to rely simply on the fact that the company’s disciplinary code and procedure does not allow for legal representation in coming to a conclusion.  By refusing an employee the right to legal representation irrespective of the circumstances of his / her case is inconsistent with the constitutional right to fair labour practices and the common law.

Whereas no legal representation whatsoever is allowed at CCMA / Bargaining Council conciliation proceedings, a party’s entitlement to legal representation at arbitration proceedings is specifically regulated.  If a dispute concerns a dismissal involving misconduct, incapacity ill-health or incapacity / poor work performance, legal representation is only allowed if:

  • The commissioner and all the other parties agree, or
  • If the commissioner decides that it would be unreasonable for a party to proceed without such representation.

A legal representative may represent a party at all other arbitration hearings in respect of any other reason for dismissal.  Consultants, Advice Office officials, relatives and friends are, without exception, not allowed to represent a party at arbitration proceedings.  Once again, a legal representative should be permitted at arbitration to argue the merits of why in circumstances of that particular matter, a commissioner should exercise his discretion in allowing legal representation on behalf of a party.

Strike action: What does the law say?

Posted in Strike action, Unfair Dismissal with tags , on August 31, 2009 by labourlawoffices

strike

A question was asked about what constitutes a strike action:

“Kindly assist me with definition of a strike and what is it that constitute a strike action whether procedural or not, also requirements of for a protected strike action,situations where general pre-strike procedures will not apply, substantive requirements for protected strikes and different kinds of dismissals”

Here is how the law sees it:

Strike Definition

Strike means “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory.”

The procedural regulation of strikes

Section 64 of the Labour Relations Act, 1995 introduces procedural limitations on the constitutional right to strike and includes the following:

  • The dispute must be referred for conciliation before a strike will be permitted;
  • The CCMA or Bargaining Council must attempt to resolve the dispute by conciliation;
  • A certificate stating that the dispute remains unresolved must have been issued;
  • Written notice of a strike must be given to the employer on 48 hours notice in the private sector and 7 days notice if the state is the employer.

Exemptions from statutory procedures

Industrial action may be protected even through the procedural requirements of the LRA have not been followed in the following circumstances:

  • If the parties to the dispute are covered by a Council constitution or a Collective Agreement that sets out dispute procedures, and they follow these;
  • If the other party locks-out in defiance of the statutory procedures;
  • If an employer fails to maintain or restore pre-existing terms and conditions of employment where employees or their union have invoked the status quo remedy provided for in Section 64 (4) of the LRA and asked the employer in the dispute referral to do so.

Substantive requirements for industrial action

Strike action is not permitted if –

  • The parties have agreed to refer the issue in dispute to arbitration;
  • The dispute has to be referred to arbitration or the Labour Court under the LRA;
  • A Collective Agreement, Arbitration Award or Wage Determination regulates the issue in dispute;
  • The strikers are employed in an essential service or a maintenance service.

Protected strikers may not be dismissed for participating in protected strike action. They may, however, be dismissed if they misconduct themselves or the operational requirements of the business justified dismissal.

Unprotected strikers may be dismissed after fair ultimata have been issued.

Who owns the copyright in computer programs written by an employee?

Posted in Questions and Answers with tags on June 25, 2009 by labourlawoffices

Section 21 (1) (d) of the Copyright Act 1998 of 1978 provides that where a work is “made in the course of the author’s employment by another person under a contract of service”, the employer is ”the owner of any copyright subsisting in the work”.  In an action in the High Court, the Applicant sought to enforce a copyright claim in certain written computer programmes against his former employer.  The employee claimed to have created the programs in his own time, at home, to assist him personally in the performance of his duties as employee.  He alleged that it was not part of his duties as a meteorologist to write computer programmes.  The employee claimed that the programs had not been “written in the course and scope of his employment” and that ownership of the copyright in the programmes vested in him and not in his employer.

When the case was decided in the Supreme Court of Appeal it was held that the phrase, “in the course of employment” was not ambiguous and did not require anything by way of extensive or restrictive interpretation.  The Court held that a practical and common sense approach directed at the facts usually produces the correct result.  The Court pointed out that it was dangerous to formulate generally applicable rules to determine whether or not the work was authored in the course of an employee’s employment.  It remained fundamentally a factual issue that depended not only on the terms of the employment contract but also on the particular circumstances in which the particular work was created.  In this case the factual basis for the employee’s claim was not supported by the available evidence.  As meteorologist the employee had to collect and collate meteorological data and transmit it to head office for analysis and storing.  The employee developed his programs for this very purpose.  Although he may not have done it to make his own job easier, he did it because of his employment with his employer.

The Court went on to find that although it had to be accepted that the employee’s initial programming took place at home it was clear that as time passed he spent increasingly more of his office hours developing programs, to such an extent that he failed to give sufficient attention to his duties as Head of a Regional office.  In any event, the Court held, the fact that an employee creates work at home (or even during office hours at the premises of the employer) is but one factor that has to be taken into account in answering the question whether the work was made in the course of his employment.  The earlier Court finding that the programs had indeed been made in the course of the employee’s employment was thus endorsed.