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National Tertiary Education Union

Whistleblowing is defined as raising a concern about wrongdoing within an organisation. The Protected Disclosures Act, No 26 of 2000 (PDA) was enacted to protect whistle-blowers and to help combat corruption. The PDA must be viewed in the context of high levels of perceived corruption in South Africa. Evidence of this was given in Transparency International's 2014 Corruption Perception Index which gave South Africa a score of 44 out of a possible 100 (with 100 being perfect non-corruption), ranking us 67 out of 175 countries.

The wave of amendments to employment legislation has seen a codification of the case law relating to the principle of 'equal pay for equal work'. The principle has been codified by s198 of the amendments to the Labour Relations Act, No 66 of 1995 (LRA) and by the amendments to s6 of the Employment Equity Act, No 55 of 1998 (EEA).

(Also applicable on other professional sectors)

Introduction:

The importance of highly qualified and skilled employees employed within the healthcare sector speaks for itself; especially due to the very environment within which nurses are employed, which requires a substantial standard of skill and degree of care by virtue of the fact that human lives may be at stake in the event of failure to exercise the expected standard of care and skill by an employee.

 

The issue of whether an employer can compel an employee to be placed on retirement was under the spotlight once again, when former National Commissioner of Correctional Services, Mr Tom Moyane, stated in the media that "he had been 'retired'". The facts as emerged from media reports appear to be that Mr Moyane was appointed on a five year fixed-term contract of employment in 2010, at the age of 57, which contract was only due to expire in 2015. 

The National Assembly today adopted the Employment Services Bill which brings to four pieces of legislation submitted by the Department of Labour that have been adopted by the house this year.

In the recent case of NUMSA v Abancedisi Labour Services [2013] ZASCA 143 (30 September 2013), the Supreme Court of Appeal took to task a Temporary Employment Service (TES), - labour broker, - that had left its employees' employment in abeyance (similar to a lay-off or time-off until production increases) for over ten years.

It seems to be an increasingly frequent occurrence that, when an employee is faced with disciplinary action for an act of misconduct, the employee elects to resign from the employment before the disciplinary hearing takes place. In some instances, it has been known that the employee resigns, and then refers a dispute of constructive dismissal to the CCMA.

One of the most important changes in the Revised Codes of Good Practice (RCoGP) is that there are now three priority pillars: Ownership; Skills Development; and Enterprise and Supplier Development. A minimum 40% threshold applies to certain indicators in respect of these pillars, and failure to comply will result in companies being penalised. Companies not meeting the threshold of these elements will drop one level on their BEE scorecard.

Employers are well advised to ensure that leave is taken and that employees enforce their right to take leave. In the recent case of Ludick v Rural Maintenance (Pty) Ltd¹ the Labour Court revisited the effect of the annual leave provisions of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA). The employee forfeited untaken leave and the employer was ordered to pay the employee in respect of part of the accrued leave. 

The North Gauteng High Court in a judgment on Wednesday (27 November) upheld the system of sectoral collective bargaining under the auspices of Bargaining Councils.