10 August 2017

The Employment Equity Act 55 of 1998 (the “EEA”) was amended by Act 47 of 2013 to broaden the net of unfair discrimination. The previous EEA already specifically prohibited anyone from discriminating against an employee based on any listed ground, including (amongst other things) sex, race, colour, sexual orientation and religion. This is what is referred to as a “closed” list. In other words, if it’s not on the list, it’s not covered by the EEA.

The amendment to section 6 of the EEA extended this list to include “[…] any other arbitrary ground”. Should someone now allege that they have been discriminated against (on grounds that fall outside of the list) they will merely have to prove that the conduct complained of is substantially similar to discrimination on one of the listed grounds. This amendment brings the EEA into closer alignment with the spirit of the Labour Relations Act 66 of 1995 (the “LRA”). Section 187(1)(f) of the LRA provides a similar list as that provided by the EEA but includes discrimination on any “arbitrary ground” and adds that dismissals based on these grounds are deemed automatically unfair.

In New Way Motor and Diesel Engineering (Pty) Ltd V Marsland [2009] 12 BLLR 1181 (LAC), the court held that discrimination on an arbitrary ground takes place when the alleged conduct has the potential to impair the fundamental dignity of the person who the conduct is aimed against. In that case, an employee claimed his dismissal was automatically unfair as it was based on arbitrary discrimination against him in that he suffered from depression (as confirmed by a psychiatrist). The court held that, even though this did not fall squarely into the listed ground of “disability” it did, in fact, amount to discrimination.

The case of NUMSA & Others v Gabriels (Pty) LTD [2002] 12 BLLR 1210 (LC), it was held by the court that discrimination on an unlisted ground must be similar to a listed ground. The court also decided that it must be a clearly identified ground that is based on attributes or characteristics which have the potential to impair the dignity of a person, or affect the person negatively.

The amendment to section 6(1) was designed to broaden the definition of discrimination and help more people find redress in even more situations of discrimination. Despite this, it does not seem that the addition of the term “arbitrary grounds” will drastically increase the original scope of section 6(1). The courts and CCMA will probably use the same test as previously used in determining whether or not discrimination took place (and, if it did, whether it was unfair).

In the event an employee refers a case of unfair discrimination, on a listed ground, to the CCMA, the company bears the onus of proving the discrimination did not take place. Where the alleged discrimination is on an unlisted ground, the employee bears the onus of proving discrimination.

In either event, the company shall have to prove that it had done everything it could to protect its employees from discrimination. However, this shift in onus may aid employers facing discrimination allegations based on an arbitrary ground to at least establish what the employee’s case is before being obliged to respond to it.



18 July 2017

In terms of the common law, “dismissal” was only possible if there also existed a contract of employment with an employer. The Labour Relations Act, number 66 of 1995, (the “LRA”) extended this concept to include those who render service without the protection of a traditional employment contract. But rendering service (with or without a contract) does not necessarily make one an employee (after all, independent contractors also render service) and the LRA only protects employees from unfair dismissal and unfair labour practices. So how does one differentiate between an employee and an independent contractor?

The LRA defines an employee at section 213 as (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer. This publication also ran an article in June of 2012 concerning the rebuttable presumption as to who is an employee and saw that the list as to who qualifies as an employee is vastly inclusive.

It is fair to say that the LRA throws the net as to who is an employee very wide, with some notable exceptions: the South African Secret Service, National Defence Force, National Intelligence Agency, Magistrates and Judges.

In contrast, an independent contractor contract can be defined as one regulating specific work between an employer and an independent contractor in terms of which the contractor undertakes to create, build, fix, or modify something within a certain period of time for a certain sum of money to be paid by the employer on production of an invoice. Upon completion of the agreed task, the contract comes to an end. An independent contractor can sue the employer for breach of contract in a civil court if aggrieved.

The CCMA and the courts have been faced with many interpretational issues concerning who qualifies as an employee. The one constant among these cases is that the courts have no tolerance for employers who try to disguise their employer/employee relationships in an attempt to escape their statutory responsibilities towards employees.

The main difference between an employee and an independent contractor comes down to provision and control: what does the principal (the employer-party) provide to the agent (the employee-party) and how much control does the principal have over the work performed by the agent.

In a proper employment relationship, the object is normally to render personal services by the employee to the employer at the behest of the employer. The employee must obey all lawful and reasonable instructions given by the employer in relation to work performed and the way in which the work should be performed.

In contrast, an independent contractor relationship has the object of producing a certain specified service or result and the independent contractor is not obliged to personally perform work unless specifically so agreed. The independent contractor is able to perform the work in whatever manner they deem fit and is not obliged to obey more than cursory instructions about how to do the job.

The LRA in section 200A has provided seven guidelines to assist in determining if a person is an employee in terms of the LRA. Where one of these factors is present, the onus then falls on the employer to lead evidence as to why the person is not in fact an employee. If a company wishes to dispute that a person is an employee yet the person’s working hours and manner of working are prescribed, the person is economically dependent on- and only works for the company or is provided with tools of trade, the company may have a difficult time dissuading the CCMA or Courts that the person is not an employee.

It is important for employers to ensure that they consult the LRA (and Invictus) as to whether a proposed independent contractor contract is valid or whether the person would be deemed an employee in terms of the definitions and tests prescribed in the LRA. The CCMA can level hefty sanctions where the employer has failed to comply with the provisions of the LRA or attempted to call an employment contract by a different name in order to escape liability.



27 June 2017

A polygraph (commonly referred to as a lie-detector) is a device used for verifying the truthfulness (or lack thereof) of a person’s statements. Currently there is no legislation regulating the use of the polygraph and therefore nothing prohibiting or preventing the submission of polygraph results at disciplinary hearings or similar inquiries. However, this does not mean that polygraphs may be used willy-nilly or relied upon exclusively.

Polygraph results have been submitted and acknowledged in a number of CCMA cases recently. The science behind the polygraph process is (by this time) well understood and accepted. It is not for a CCMA commissioner to decide whether or not the polygraph results should be admissible but rather how much weight these results should be ascribed.




21 June 2017

The long-awaited Unemployment Insurance Fund (UIF) Amendments Bill was signed into law by President Jacob Zuma in January 2017 (along with 10 other Bills awaiting approval).

The UIF has been amassing an enormous surplus and the National Treasury estimated it would reach R175b by 2019 if not somehow gainfully diverted.