Nehawu Mandela University Branch

15/11/2021

In this moment of , some level of boundary might be worthwhile; from a principle point of view.
NB: Hardline boundary is not feasible or possible for everyone though. There are some that need to be on ; it comes with the nature of the job.

“We consider Portugal one of the best places in the world for these digital nomads and remote workers to choose to live in, we want to attract them to Portugal,” said Ana Mendes Godinho, Minister of Labor and Social Security. (Portuguese American Journal)

However, some elements of the package were not approved by Portugal's parliament, including a "right to disconnect" allowing staff to turn off all work devices out of hours. (BBC)
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In Portugal, it's now illegal for your boss to call outside work hours
- By Julia Horowitz and Vasco Cotovio, CNN Business, Nov 11, 2021

London (CNN Business): Ever had a persistent boss who won't stop messaging you once you've left work or logged off? In Portugal, that behavior is now illegal.

The country recently introduced a law that bans employers from contacting workers outside of their regular hours by phone, message or email.
"The employer must respect the privacy of the worker," including periods of rest and family time, the new law stipulates. Any violation, it continues, constitutes a "serious" offense and could result in a fine.

A similar rule gave French workers the right to ignore after-hours business emails in 2017.

Portugal's new policy is part of legislation that regulates working from home. Employees now have the right to opt-out of remote work should they so wish — but they can also request the arrangement if it's compatible with their job.
The measure also stipulates that employers are responsible for providing workers with the appropriate tools to do their jobs remotely. They should reimburse workers for any additional expenses, including any increase in bills such as electricity and gas, they might incur while working from home.
The law was passed by the Portuguese parliament last Friday and came into effect the following day.

Portugal has been led by a socialist government for six years, though Prime Minister Antonio Costa could be pushed out of power early next year. The country's president recently called a snap election for late January amid a standoff over the budget.
The capital, Lisbon, has worked hard to appeal to digital nomads who want to take advantage of remote work to temporarily relocate or travel outside their home country.

The practice became more common during the pandemic. Research firm Gartner estimates that remote workers will represent 32% of the global workforce by the end of 2021, compared to 17% in 2019.

25/10/2021

“Employees are ordinarily vulnerable because, unlike employers, they do not often have the resources necessary to vindicate their rights by prosecuting cases all the way up to this Court. Condoning the flouting of laws that govern the fate of people’s livelihood is a matter so serious that it always requires greater sensitivity and care.”
- SARS v CCMA [2016] ZACC 38; at para 52.

13/10/2021

This is not a right to insolence, however, the principle of dignity and fairness is enshrined.
Employers act with emphaty and respect.
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Durban woman fired for not attending work during lockdown last year wins case in the CCMA
By Jolene Marriah-Maharaj  - Oct 8, 2021

Durban: A Durban woman, who was fired for refusing to return to the office during level 3 lockdown in June last year, citing a comorbidity, has won her case in the CCMA.

The Commission for Conciliation, Mediation and Arbitration recently ruled in the woman’s favour and found that the employer did not prove that the dismissal was fair and that the woman did not wilfully or deliberately refuse the instruction to return to work.

She was awarded nine months salary.
According to the award, the woman was dismissed for gross insubordination in that she failed to adhere to the company’s Human Resource’s instruction to return to work.
She was also charged with misconduct in that she was absent for a period of about six days during June 2020.

In its arguments, the employer claimed that the woman had produced a doctor’s note that was not stamped by a medical practitioner and that the medical note did not declare she was unfit to resume duties.
The company said that it had put in place various Covid-19 related precautions, including partitions between work stations and various PPE as per government regulations.
Another manager testified that he had put in “exhaustive measures” for staff to return to work and that no Covid-19 positive cases were identified at the time in the office.

However, under cross-examination, he admitted that it was possible partitions were not in place, and the office was an open plan arrangement.
The woman testified that this was, in fact, not the case. When she returned to work, she found a person typing on her computer.
In addition, she told the arbitration hearing that no changes were made to the workplace, according to Covid-19 regulations.

She further stated that she had requested from her managers to work from home, and to attend the office on certain days to perform a certain duty.
She requested to work alone.
She told the arbitration hearing that, instead, her managers spoke above her and told her to sign a comorbidity document and go home.

She admitted that her note did not say she was unfit to attend work, saying that she was receiving treatment for hypertension, which was a comorbidity.
She said she was afraid to continue working as Covid-19 killed people with hypertension, diabetes and obesity.
She told the hearing that she had made many requests with the employer to make it safe for her to return to work, but they failed to do so.

During his findings, CCMA commissioner Mervyn Naidoo said he found it “bizarre” that the employer did not accept the medical certificate but instead wanted one stating that she should be off work.
“The applicant correctly argued that she was fit to work but unable to do so due to her comorbidity.”
Naidoo said during the time the woman was called back to work in June 2020, the country had suffered over 900 deaths and that vaccination against the virus was far-fetched at the time.

Naidoo said President Cyril Ramaphosa had urged employers to take care of their employees during this time and called on all South Africans to act in the interest of the nation and not in their own selfish interests.
In his findings, Naidoo found that the woman’s dismissal was both substantively and procedurally unfair.
IOL

A Durban woman who was fired for refusing to return to the office during level 3 lockdown in June last year, citing a comorbidity has won her case in the CCMA.

04/10/2021

EC court orders lawyers to pay damages over ‘negligent’ handling of injured client’s case - tells (Gqeberha-based) law firm to pay man who lost his eyesight after being shot by police.

GroundUp (Tania Broughton) • 14 September 2021

The high court ruled in favour of Tarquin Julies, ordering the second firm to pay the man’s proven damages as a result of the 2008 shooting as well as legal costs of the case. (Graphic: Lisa Nelson)

The Eastern Cape high court has ordered a Gqeberha law firm to pay damages to a former client for injuries he sustained after being shot in the face by a police officer.

Tarquin Julies, who was 25 years old at the time, lost one eye and is blind in the other as a result of being shot in December 2008. Julies first approached another law firm, Masimla Attorneys, to sue the Minister of Police but the firm did not lodge his claim within the legally prescribed time of three years.

Julies then approached Peter McKenzie Attorneys to sue Masimla. But Peter McKenzie Attorneys also dropped the ball, and allowed the claim to be prescribed. “To the plaintiff [Julies], the problem with the law has been the lawyers,” said Judge Jannie Eksteen, in his ruling on 7 September.

Judge Eksteen described Julies as an “unsophisticated man” who had left school in grade 7 because of financial constraints. He lived with his mother and was working as a handyman.
On that day of the shooting, Julies and his friends had been drinking at his house when police arrived. One of his friends threw a beer bottle at police which struck their vehicle. An officer got out carrying a shotgun and without uttering a word, shot Julies in the face.
Charges of public violence, assault and malicious injury to property were laid against three of his friends but were ultimately withdrawn.
In early 2009, Julies instructed Masimla Attorneys to sue the minister. He was told that it was a “big case” and would take a long time. Julies said he spoke to Masimla several times and was always assured that he was busy with the case, and would instruct an advocate to assist him.
Julies, in his evidence to the court, said that he had to undergo several operations at government hospitals. In October 2015, he had a procedure at a private clinic and, concerned about the bill, he asked Masimla for progress on his case. Masimla told him he had “no file”.
A few months later, Julies confirmed that no claim had been lodged with the police’s civil litigation department.

In August 2016, he instructed Peter McKenzie Attorneys to sue Masimla. But by December 2019 he lost faith in the firm and approached his current attorney Vic Skelton to assist him.
During the trial, Peter McKenzie said that he had a copy of the contingency agreement Julies had signed, but that it had been misfiled. He said the rest of the documents in the file had been “blown away” by a gust of wind when he moved offices at the end of August 2017.
Judge Eksteen said McKenzie acknowledged that he had not attended to the file after that.
Turning to the shooting incident, Eksteen said the uncontested evidence demonstrated a strong possibility that Julies’ case against the minister would have succeeded.
He ruled that Masimla was negligent in allowing the claim against the minister to prescribe, and ruled that Julies’ claim against him had timed out through the fault of Mckenzie.
“On his own admission, he was negligent in his conduct of the matter. In two and half years, he never obtained a power of attorney from Mr Julies, he did not obtain a copy of the docket, nor any medical reports,” Judge Eksteen said. He ordered that McKenzie pay Julies’ proven damages as a result of the 2008 shooting and legal costs. DM



Eastern Cape high court tells law firm to pay man who lost his eyesight after being shot by police.

04/10/2021

Questions around new maternity rules proposed for South Africa
- 08 August 2021

The South African Law Reform Commission (SALRC) has published a discussion paper relating to its investigation into maternity and parental benefits for self-employed workers in the informal economy in South Africa.

The investigation and its recommendations signal an important recognition of and move to address the inequalities between women and men in South Africa and the obstacles to women’s full participation in the economy, say legal experts at Cliffe Dekker Hofmeyr.
“The SALRC is an advisory body seeking to renew and improve the law of our country.
“In its discussion paper, it identifies the fact that self-employed workers in the informal sector are not afforded maternity and parental benefits as a critical gap in the state’s social protection system.

“The ultimate purpose of the SALRC’s investigation is to give effect to South Africa’s obligations in terms of the Constitution and applicable regional and international gender equality conventions.”

While parental, adoption and commissioning parental leave and benefits are recent positive changes in the country’s law, these are currently restricted to employees.
Employees who suffer a loss of earnings while on maternity, parental, adoption or commissioning parental leave can claim benefits in terms of the Unemployment Insurance Act (UIA) and the Unemployment Insurance Contributions Act (UICA).
These benefits are primarily funded through mandatory contributions from both employers and employees to the Unemployment Insurance Fund (UIF).

Contribution to the fund is a prerequisite for accessing the benefits.
“This raises one of the challenges that will need to be addressed if maternity and parental benefits are extended to self-employed workers in the informal economy namely, whether informal workers will contribute to the fund and, if so, how; and whether participation will be compulsory or voluntary,” Cliffe Dekker Hofmeyr.
“The discussion paper makes a number of recommendations in relation to the nature of the benefits which may be extended, including that the UIF system be extended by the Department of Employment and Labour to self-employed workers to allow for the granting of maternity and parental benefits, as currently provided for in the UIA and Basic Conditions of Employment Act to all workers.”

Another important consideration is the scope of the definition of “self-employed worker”.

The discussion paper recommends that “self-employed worker” be defined as “any person, including an independent contractor, who:

Has created her or his own employment opportunities and is not accountable to an employer;

Works for a company or entity that is not incorporated and not registered for taxation;

In any manner assists in carrying on or conducting the business of an employer in the informal economy.”

It is further recommended that the definition of “self-employed worker” be integrated into the definition of “employee” in the relevant provisions of the UIA, UICA and BCEA.
The discussion paper is open for public comment and input by no later than 29 October 2021.

The South African Law Reform Commission (SALRC) has published a discussion paper relating to its investigation into maternity and parental benefits for self-employed workers in the informal economy in South Africa.

02/10/2021

Management changed the way it measures productivity. Here’s what it means
- Workplace Evolution 30.09.21

An alternative approach for management is to change their perspective by focusing less on inputs and more on outputs. ..
But what does this all mean for businesses? Originally enacted to accommodate remote work, businesses that aren’t embracing these changes risk falling behind, specifically when it comes to how they think about productivity.

https://www.fastcompany.com/90681610/management-changed-the-way-it-measures-productivity-heres-what-it-means

10/04/2021

Even worse at CCMA Gqeberha Commission for Conciliation Mediation and Arbitration
The Commission For The Commission For Conciliation, Mediation & ArbitrationThe Commission For Conciliation, Mediation & Arbitration Mediation & Arbitration
Some Commissioners have been taken to task. Rightly so, they have been remove from cases. Some have been complained about, they are yet to be investigated!!
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CCMA’s TOP COMMISSIONER’S FOUND GUILTY AFTER NUPSAW COMPLAINT
ON: 2020-01-08
IN: LABOUR, NEWS, PRESS RELEASE

Victory to NUPSAW following their march to the Commission for Conciliation, Mediation and Arbitration (CCMA) earlier this year, regarding exploitation of the workers by Dischem Pharmacies, the abuse of power and corruption by the Commissioner Marleze Bligaunt and others.

NUPSAW members embarked on a long strike on the 13th May 2019 to CCMA, to fight for their basic rights, decent living wages with benefits and a racism free comfortable working environment at Dischem Pharmacies following Commissioner’s Marleze Blignaunt connived with Dishem by imposing picketing rules which was biased to the employer.

The Commissioners were currently using their Agency called Labour Elite to assist their employer to destroy our members, hence NUPSAW served CCMA with a memorandum to start investigating Marleze and others.

CCMA embarked on an investigation which entailed an interview with NUPSAW officials and some of the members who were involved with all the evidence provided. Commissioner Marleze and others were also allowed to respond to the allegations against them.

After consideration of all the submissions by all the concerned parties, an outcome report on the complaint from NUPSAW, CCMA found that Marleze Blignaungt and Mohau Ntaopane guilty for breaching the Commissioner’s code of conduct and the CCMA has recommended a termination of their contracts. While Natalie Willemse was not found guilty.

NUPSAW will continue to fight exploitation, oppression and discrimination of workers wherever they are in they workplaces.

 Victory to NUPSAW following their march to the Commission for Conciliation, Mediation and Arbitration (CCMA) earlier this year, regarding exploitation of the workers by Dischem Pharmacies, the abuse of power and corruption by the Commissioner Marleze Bligaunt and others. NUPSAW members embarked o...

10/04/2021

[CCMA]
Workers given cold shoulder by CCMA and forced to pay for services that were once free
By Masego Mafata and Liezl Human• 9 April 2021
First published in GroundUp:

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CCMA offices no longer accept walk-ins. People rely on security guards to submit their forms and give them instructions. (Photo: Masego Mafata)

CCMA in Benoni ‘has outsourced to the internet cafe next door’ according to the Open CCMA Campaign, leading to applicants’ time and money being squandered.
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The Commission for Conciliation, Mediation and Arbitration (CCMA) offices in Johannesburg and Benoni have stopped allowing walk-in cases. Workers are queueing outside for hours before being directed by officials to nearby internet cafes to complete their dispute referral process online. As a result, workers are paying up to R80 at the internet cafes for a service the CCMA used to offer for free.

When GroundUp visited the office in Johannesburg on Wednesday, about 12 people were queuing outside and access to the building was limited to staff only.

Queueing workers are getting instructions on how to fill out their forms by security guards who sometimes give incorrect instructions.

Thabo Moloi, a worker queueing outside the office on Wednesday, said, “They tell us different things and we don’t know if our papers get to the officials.”

Carol Maseko told GroundUp that she was queuing for the third time. She had been waiting outside the CCMA offices for seven hours when GroundUp arrived.

“They [the security guards] just took our papers and told us to wait,” said Maseko.

She was trying to open a case of unfair dismissal but she had filled in her forms incorrectly and they were returned to her.

“The money we had spent printing and making copies went down the drain,” she said.

Nthabiseng Mabaso, also queuing, said workers can’t afford to “cough

CCMA in Benoni ‘has outsourced to the internet cafe next door’ according to the Open CCMA Campaign, leading to applicants’ time and money being squandered.

30/03/2021

Unions as vanguard of the working class must ensure effective and efficient shopstewardship. We call on shopstewards to be active in the trenches and zinkhokheli to ensure emancipatory leadership.
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“Whether we like it or not, we would never be able to reach all the areas. But if we are working cooperatively with the responsible employers, strong unions, then we would be able to deal with some of the issues. But the reality is that unions have also become weak on the shop floor. They got divided and there are lots of splinter groupings instead of working together,” Thulas Nxesi
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LABOUR MINISTER NXESI BLAMES 'WEAK' UNIONS FOR TRUCKING INDUSTRY VIOLENCE
Theto Mahlakoana | 29 Mar 2021

Labour Minister Thulas Nxesi said that had trade union shop stewards been effective, trucking employers hiring foreign nationals at the expense of locals would have been dealt with before it became a crisis.
Labour Minister Thulas Nxesi attributed some of the friction in the country’s now volatile trucking industry to weakened trade unions.

Freight trucks have been under attack for a while now, with ambushes as recent as in the last few months. The series of arson attacks were mostly carried out on major highways by people who were protesting against the industry’s employment of foreign nationals.

In a wide-ranging interview last week, Nxesi told Eyewitness News that had trade union shop stewards been effective, trucking employers hiring foreign nationals at the expense of locals would have been dealt with before it became a crisis.

“Whether we like it or not, we would never be able to reach all the areas. But if we are working cooperatively with the responsible employers, strong unions, then we would be able to deal with some of the issues. But the reality is that unions have also become weak on the shop floor. They got divided and there are lots of splinter groupings instead of working together ... Read more

Labour Minister Thulas Nxesi said that had trade union shop stewards been effective, trucking employers hiring foreign nationals at the expense of locals would have been dealt with before it became a crisis.

11/03/2021

Court rules an employee attacked at work can sue her employer‘
Tania Broughton 8 Mar 2021

'On the facts of this case, the assault took on racial and gendered overtones’ – Judge Wallis.

A former senior manager in the office of the Mpumalanga Premier has been given judicial authority to sue her former boss for damages for physical and psychological injuries she suffered when attacked by protestors while she was at work.

The Premier and the Director-General attempted to raise a “special plea” in the matter brought against them by Catherine May Churchill, former chief director for policy and research. They argued that they should not be held liable, and she should put in a claim with the Compensation Fund.

The High Court agreed, but the Supreme Court of Appeal (SCA) overturned that ruling and declared the premier and the DG liable.

Being attacked at work are not ordinarily “things that go with the job”, said the court.

Churchill is claiming about R7.5 million in damages, the bulk being compensation for loss of income calculated from June 2017, when she resigned because of “intolerable work conditions”, to the date of her retirement, on the basis that she will never be able to work again.

The final amount will still have to be determined by a high court.

The SCA judgment, penned by Judge Malcom Wallis (with four judges concurring) details the events of that day in April 2017. There was a protest organised by the National Education, Health and Allied Workers’ Union (NEHAWU). Some of the participants were employees and had access cards. A group of about 20 to 30 entered the building.

Churchill’s assistant said she was afraid. Churchill had to take a document to a colleague and told her she could leave once she got back to the office. But when she got ... ... Read more

'On the facts of this case, the assault took on racial and gendered overtones' - Judge Wallis.

22/02/2021

Labour and employment minister, Thulas Nxesi, has gazetted the new annual earnings threshold under the Basic Conditions of Employment Act (BCEA), section 6(3)
The new threshold of R211,596.30 before tax and contributions represents an increase of (a ) R6,163 from the previous amount of R205,433.30, which has been in effect since 1 July 2014.
which will have implications for South African employees.

Employees that earn in excess of this rate per annum are excluded from sections 9, 10, 11, 12, 13, 14, 15, 16, and 17(2) and 18(3) of the BCEA from 01 March 2021.
Employees earning under the threshold enjoy protection of the BCEA. These sections of the BCEA protect the vulnerable employees and regulate amongst others, hours of work, overtime, compressed working time, average hours of work, meals interval, daily and weekly rest period, pay for work on Sundays, night work, and work on public holidays.
Where there are Collective Agreement in place at the workplace or sector, employees should enjoy more favourable terms (conditions).

The sections covered in these acts are intended to protect vulnerable employees and regulate, amongst other things, hours of work, overtime, work over weekends, lunch breaks and even where labour disputes need to be handled.

NB: Employees earning above the threshold are precluded from these automatic protections – meaning they are not automatically entitled to these protections. However, there are provisions in labour laws for fair labour practice.

Employment and Labour Minister TW Nxesi has announced that the National Minimum Wage (NMW) for each ordinary hour worked has been increased from R20,76 to R21,69 for the year 2021 with effect from 01 March 2021.