August 2025 | Employment and Labour Law
“There’s no trust, no faith, no honesty in men.” (William Shakespeare, in Romeo and Juliet)
A recent Labour Court decision is a stark reminder to employees that an employment relationship is founded on trust, and that any breach of that trust could justify dismissal.
Pocketing a 50c coin to balance her till
The responsibilities of a bank teller included “balancing cash daily, reporting differences, as well as maintaining effective security controls, including maintaining a high level of honesty, integrity and ethical standards.”
Her clean record over the four years of her employment ended abruptly when a monthly surprise check of the cash balance in her till revealed a discrepancy in the form of a bag of R1 coins totalling R20, unaccounted for and therefore in violation of banking rules and procedures.
The resulting investigation revealed, as recorded on CCTV, the teller’s various failed attempts at balancing her till, which she had ultimately succeeded in doing only by pocketing a 50c coin from the till.
A subsequent disciplinary enquiry found her guilty on charges of misconduct in the form of dishonesty, falsification of balancing records and misappropriation of funds from her till. She referred her dismissal case to the CCMA (Commission for Conciliation, Mediation and Arbitration), which refused her application.
In finding her dismissal to have been fair, the arbitrator rejected both the teller’s claims that her till discrepancies resulted from her ill health, and her denial of taking the 50c to manipulate the system (the CCTV record was, it seems, crystal clear on that point). The court also remarked on her contradictory statements as to the “miraculous” bag of R1 coins.
Critically, the teller had been trained in her duties and was well aware of what was expected of her in line with the bank’s Code of Ethics. Moreover, the bank’s Disciplinary Code provides that falsification of bank records is a dismissible offence as a destroyer of the employer-employee trust relationship.
Undaunted, the teller took the CCMA’s award on review to the Labour Court, which made short work of confirming her dismissal.
It’s the breach of trust that counts, not the amount involved
As our courts have confirmed many times, the employer-employee relationship requires an employee to act honestly and in good faith. The trust which the employer places in the employee underlies their whole relationship, and any breach of that trust risks dismissal.
Even an apparently minor act of dishonesty can justify dismissal if it has resulted in a breakdown of trust that makes continued employment intolerable. The final decision of whether or not dismissal will be appropriate for a particular act of misconduct will depend on all the circumstances.
4 practical tips for employers
For employers, preparation is key in ensuring that you are able to dismiss a dishonest employee without falling foul of our employment laws. Start with the basics:
- Your employment contracts and codes are critical: As we saw in this case, the bank’s strictly worded Code of Ethics and Disciplinary Code were central to proving the fairness of the dismissal. Your employment contracts should incorporate reference to zero-tolerance policies that leave employees no wiggle room when it comes to understanding that any act of theft or dishonesty, no matter how minor, will justify dismissal. Incorporate reference also to the monitoring and checking processes you will apply – it was the “surprise monthly till check” that cooked this teller’s goose.
Every workplace will have its own unique requirements in this regard, so contracts and codes tailored to your circumstances are vital.
- Training is essential: As we again saw in this case, a deciding factor in the Court’s decision was the fact that the teller had received adequate training in her duties and so couldn’t claim ignorance of the requirements that she balance her till, report discrepancies, act honestly, etc.
- Proof is key: The CCTV footage of the teller pocking money from her till was critical in proving that she deliberately flouted the rules and stole from her till. Whatever monitoring devices and processes you may have in place (and do remember to ask us how you can use things like CCTV monitoring without being accused of an unfair labour practice!), make sure to collate and preserve it as soon as any incident of misconduct comes to light. You might have to retain it for a long time (nearly four years so far in this case).
- Your disciplinary process must also be fair: Remember that proving “substantive fairness” (a fair and lawful reason for dismissal) is only one part of the equation. You must also be able to show that all your disciplinary processes are “procedurally fair” (i.e. that a fair process was followed).
As always with our employment laws, the requirements are complex and the costs of getting them wrong are high, so don’t hesitate to ask us for advice and help every step of the way.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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June 2025 | Employment and Labour Law
“When cognitive capacities are the focus, the 70s are the new 50s.” (IMF)
Fake news articles suggesting that South Africa was implementing a new standard retirement age policy, supposedly from 30 May this year, recently went viral on social media. Convincingly structured to look realistic (AI’s dark hand there?), the articles suggested that 65 is the new universal standard retirement age for all employees across all sectors.
Complete hogwash.
What the law actually says
- Age discrimination is “automatically unfair”, and any employer found to be guilty of it by unlawfully forcing an employee to retire early faces a compensation order of up to 24 months’ remuneration (double the normal award for a run-of-the-mill unfair dismissal), re-instatement or re-employment.
- There is, however, an escape clause there for employers: “A dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.”
- Even where a dismissal itself is fair, you must still follow a fair process in implementing it – more on that below.
It’s an important topic, with increasing numbers of employees wanting to (or needing to) work into their 70s. A recent Labour Court ruling showing those principles in action is well worth taking note of.
The plumber forced to retire at 60
An artisan plumber with 12 years of service had his employment terminated when he turned 60.
He asked the Labour Court to declare his dismissal automatically unfair as other employees had been allowed to work until they were 65. What’s more, he denied ever agreeing to retire at 60.
The employer countered that it had a two-tier retirement policy which obliged employees with more physically demanding jobs (site workers such as artisan plumbers) to retire at 60 whilst supervisory and administrative personnel (such as foremen and office staff) only had to retire at 65.
On the facts, the Court declared the dismissal to have been fair, finding that the evidence pointed to the employee being subject to a retirement age of 60 because:
- The employer’s retirement policy was in line with the rules of the applicable Building Industry Pension Scheme.
- Although no signed copy of his full employment contract could be found, the employer did produce a standard annexure to such a contract, confirming retirement at 60 and “probably” signed by him (he denied signing it but agreed the signature looked like his).
- A number of his fellow plumbers had also been retired at 60 (he attended their retirement functions), and other cases of retirement at age 65 cited by him related to employees in the “65 tier” – that is in supervisory or administrative positions.
- Another plumber’s contract was produced, with the retirement provision in place.
Bottom line: the employee hadn’t proved that his retirement at the applicable retirement age of 60 was an automatically unfair dismissal, and the Court held his dismissal to be fair.
How to ensure that an age-related dismissal is fair
First prize is to specify an agreed retirement age in all your employment contracts, ideally from day one. If you want to add a retirement clause later, or to change anything about an existing clause, be sure to do so by negotiation and agreement, not unilaterally. And be sure to keep the original, fully-signed contract safe and accessible (unlike the employer in this case who had to rely on a scan of just the annexure to the contract).
Alternatively, be ready to prove that there is a “normal or agreed retirement age” for employees employed in the same capacity.
The dismissal must be genuinely based on the employee having reached retirement age and cannot, for example, be a disguised retrenchment or a dismissal for some other reason.
It’s crucial that you follow a fair process. Open communication, reasonable notice, and applying the rules consistently to all employees could be critical here.
Every case will be different, so ask us for advice specific to your situation.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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May 2025 | Employment and Labour Law
“The legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.” (Quoted in the judgment below)
We all want loyal, competent staff who remain motivated to stay with us in the long term, but the reality is that a degree of employee churn is always inevitable.
Imagine then this scenario – a key employee (someone senior, a specialist, or perhaps even a partner or director) is fired or leaves you. They take with them intimate knowledge of your business. They know all your trade secrets, your pricing processes, your marketing strategies, and all your trade connections. Plus, they’ve built up client relationships and credibility in your industry while employed by you.
If they now decide to start up their own business in opposition to you, or if they take their insider knowledge to your competitors, you have a real problem.
That’s why it’s essential to consider, right up front when you’re hiring someone and drawing up their employment contract, whether you need to protect your business from this sort of unfair competition. That’s where the tried-and-tested restraint of trade clause comes into play. It’s as easy as including one in your employment contract, and making sure that your new hire is fully on board with it. Or is it?
The basic requirements for legal validity
As a starting point, our courts are cautious about curbing anyone’s constitutional right to be economically active and to earn a living.
So, while we are all generally held to the agreements we make, and while restraint clauses have long been recognised in our law as a legitimate way for businesses to protect their interests from unfair competition, our courts are unlikely to enforce restraints unless they are:
- Reasonable: You cannot impose an unreasonable restriction on your former employee’s freedom to trade or to work. Go too wide on time period, geographic area or scope, and your clause could be held wholly or partially void.
- Protective of a legitimate business interest: You must have a real commercial interest in imposing the restraint, you can’t use it just to block competition.
- Not contrary to public policy: There must be no other aspect of public policy weighing against the clause.
Each case will be judged on its own facts and merits, with the court balancing your rights against those of your former employee in a bid to ensure fairness to both of you.
As a starting point, make sure that your clause isn’t “void for vagueness”, or you could end up in the same position as the employer we discuss below.
Too vague to enforce, and no Father Christmas to the rescue
An employer, providing physiotherapy services to two major hospitals in the Umhlanga area of KwaZulu-Natal, employed a senior physiotherapist in January 2023. Eight months later she resigned.
The restraint of trade clause in her agreement was a particularly terse one. Headed “15. Trade Restriction”, it read simply: “2 year 8km restriction in event of termination / expiry of Contract.”
When the employer tried to enforce this clause, the High Court refused, pointing out that it was “lacking in substance” and contained no indication of:
- A definite commencement date for the two-year period
- What the “8 km restriction” referred to
- What exactly was restricted
- What interests it sought to protect
What’s more, it contained no mention of the two particular private hospitals which the ex-employee was not to practice at. The Court refused the employer’s request to “read in” more wording to the clause to remedy its vagueness and lack of detail, quoting from another High Court decision: “the legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.”
It also warned against the trend for smaller businesses to cut corners by going the “DIY contract” route: “SMME businesses are reluctant to seek advice from attorneys, and less so to employ attorneys to prepare important legal agreements. This pattern, fuelled undoubtedly by the rising cost of legal charges, often results in unforeseen circumstances by the time the matter reaches a litigious stage”.
That’s putting it mildly – defective restraint clauses like this one literally aren’t worth the paper they’re written on. A properly drawn clause is essential, and we’re here to help.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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April 2025 | Employment and Labour Law
It’s vital for both employers and employees to understand the practical and legal differences between permanent and fixed term employment arrangements.
What is a fixed term contract?
A fixed term contract is a temporary employment arrangement with a specified start date and an agreed end date. This could be a fixed end date or a reference to a specified task or project reaching completion, or to a specified event. Importantly, you must be able to prove that your employee agreed to the end date.
A standard contract of employment, by contrast, is for an unlimited period and ends only when your employee resigns, or reaches retirement age, or is lawfully dismissed or retrenched by you.
Any employer tempted to misuse a fixed term contract in order to dodge the many legal protections given to a full-time employee should think twice – our courts do not look kindly on attempts to prejudice employees by disguising the true nature of an employment relationship.
The basic requirements
The contract (and any renewal contracts) must be in writing and must state the reasons justifying the stated fixed term.
The protections
The Labour Relations Act (LRA) provides a range of protections to fixed term employees. Let’s address them under two main headings.
Firstly, the “reasonable expectation of renewal” protection that applies to everyone
Simply put, you could face an unfair dismissal claim (with all that that entails) if you give the employee reason to believe that the contract will be renewed or converted to full-time employment.
That’s because – and this applies to all fixed term contracts in that none of the exclusions listed below apply here – the LRA says the termination of a fixed term contract is seen as a “dismissal” if:
- The employee “reasonably expected” you to either renew the fixed term contract on the same or similar terms, or to convert the contract into indefinite employment (again, on the same or similar terms), and you didn’t do so.
Anything could land you in hot water here, with particular risk areas being things like continual renewal of fixed term contracts without justification, verbal or implied reassurances of renewal, a workplace culture of renewing contracts etc. To be on the safe side, consider giving your employee specific written notice of non-renewal in good time. Every scenario will be different here, so in some instances you may be advised that multiple contract renewals are justified, in others that they aren’t – specific legal advice is essential, and the bottom line is that professionally drawn contracts and clear communication are critical.
Secondly, other protections that apply only to certain employees
These additional protections do not apply in any of these exceptions:
- The employee earns more than the earnings threshold set by the Basic Conditions of Employment Act (currently R261,748.45 per year or R21,812.37 per month).
- You employ less than 10 employees.
- You employ less than 50 employees in a business that is less than two years old (and that hasn’t been formed by dividing or dissolving an existing business).
- The fixed term contract is permitted “by any statute, sectoral determination or collective agreement.”
The three-month limit, and the need for justification
You can only use a fixed term contract (or successive contracts) for over three months if:
- The work involved is of limited or definite duration, or
- You are able to prove a justifiable reason for fixing the contract’s term, with the LRA specifically mentioning situations such as:
- Covering another employee’s absence (on maternity leave perhaps)
- Addressing a temporary increase in work not expected to last over 12 months
- Providing work experience to students and new graduates
- Specific projects of limited or defined duration
- Seasonal work
- Positions funded externally for a limited period
- An employee who has reached retirement age
This is not an exhaustive list so you may well have other justifiable reasons, such as perhaps needing to establish the viability of a new venture, a new branch, or a new position before committing to long-term employment.
Watch out here! If you employ someone on a fixed term contract for more than three months without complying with the above, the contract is automatically deemed to be a full employment contract of unlimited duration.
Other things to watch
- Equal treatment after three months: Even if you have justification for exceeding the three-month limit, you must then treat the employee no less favourably than a permanent employee in the same position, unless again you have justification for different treatment.
- Right to apply for vacancies: Fixed term employees must have the same access to apply for vacancies as permanent employees.
- Retrenchment pay if a project exceeds 24 months: Any project-specific fixed term employee who is employed for over 24 months must, when the contract ends, be paid a week’s remuneration for every completed year of the contract or offered other employment (with you or another employer) on the same or similar terms.
A properly drawn employment agreement that both protects your interests and complies with the law is essential – and we’re standing by to help you.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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March 2025 | Employment and Labour Law
From 1 April 2025, the earnings threshold under the Basic Conditions of Employment Act (BCEA) will increase, impacting not only the BCEA but also employee protections under the Labour Relations Act (LRA) and Employment Equity Act (EEA).
Broadly speaking, employees earning less than the threshold amount are entitled to stronger labour protections.
The new threshold
The threshold rises by only 2.9% this year, increasing from R254,371.67 per year (R21,197.64 per month) to R261,748.45 per year (R21,812.37 per month).
What counts as “Earnings”?
“Earnings” (for this purpose only) means “the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration”.
The impact on employee protections
- BCEA: Employees earning above the new threshold aren’t entitled to statutory protections for working hours, overtime pay, Sunday, public holiday and night work, daily and weekly rest periods and meal intervals.
- LRA: Those earning below the threshold gain stronger protections:
- If working for a client via a labour broker for more than three months, they are deemed employees of the client – unless they really are performing a temporary service.
- Fixed-term contracts exceeding three months are presumed indefinite unless the employer has a justifiable reason for fixing the term of the contract.
- EEA: Employees earning above the threshold can only take unfair discrimination disputes (except sexual harassment cases) to the Commission for Conciliation, Mediation and Arbitration (CCMA) if both parties agree. Otherwise, they must approach the Labour Court.
Exceptions to the BCEA protections
Some employees have limited BCEA protection regardless of their earnings, including:
- Senior managerial employees – defined as “an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”.
- Sales staff who travel to customers and set their own work hours.
- Employees working less than 24 hours a month.
Please ask us for specific advice if you need it. This article is merely an overview of a complex topic with many pitfalls for the unwary.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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February 2025 | Employment and Labour Law
The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased from 1 March 2025 by 4.4% from R27,58 per hour to R28,79 per hour.
Domestic workers: Assuming a work month of 22 days x 8 hours per day, R28,79 per hour equates to R230,32 per day or R5067,04 per month. Of course, this is just a bare legal minimum: the Living Wage calculator will help you check whether you are actually paying your domestic worker enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up-to-date).
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
© LawDotNews
