Simone Olivier Attorneys Inc.

23/12/2023

Thank you for trusting us with your legal matters and for all the positive feedback. You can be assured of our best attention at all times as service to our clientele is very important to us.

We look forward to being of assistance to you for any future legal services you may require.

Wishing you a fantastic holiday season and a prosperous New Year!

Love,
Simone Olivier

09/04/2023

09/02/2023

We are excited to introduce Cimré Adams, our newly appointed Associate at Simone Olivier Attorneys Inc.. Cimré specialises in Criminal law and was previously appointed at Legal Aid SA and later joined National Prosecuting Authority. Welcome aboard, Cimré. We are happy to have you!

12/10/2022

Load shedding and obligations to pay: Shedding some light on an employer’s obligations during load shedding
by Aadil Patel and Dylan Bouchier, Cliffe Dekker Hofmeyr

It is no secret that the intensified load shedding has had a devastating economic effect on many companies.

Without electricity, many businesses cannot function, and in those instances, employees are unable to work.

Employers might be under the impression that in instances where employees are unable to work, that the ‘no work no pay’ principle applies. However, when hours are lost as a result of power outages, the fact that employees are unable to work is due to no fault of the employer, nor the employee. Therefore, the no work, no pay principle would not apply.

Click here to read the complete article ...
https://www.cliffedekkerhofmeyr.com/en/news/publications/2019/Employment/employment-alert-1-april-loadshedding-and-obligations-to-pay-shedding-some-light-on-an-employers-obligations-during-load-shedding.html

(Image: citizen.co.za)

04/10/2022

Retrenchments: Transformation, a selection criterion?

Key information

When an employer contemplates dismissals based on operational requirements, section 189(1) of the Labour Relations Act 66 of 1995 (LRA) requires the employer to consult any person impacted by the decision, including trade unions whose members may be affected by the proposed retrenchments. The employer and other consulting parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus on, amongst other things, the method for selecting employees to be dismissed. Where an employer does not comply with a fair procedure, section 189A(13) provides a consulting party with recourse to approach the Labour Court.

2022/05

By Phetheni Nkuna, Director and Mbulelo Mango, Associate Designate, Employment Law, Cliffe Dekker Hofmeyr

Where the consulting parties have agreed on the selection criteria to be used, the employer is obliged to implement the criteria. However, where no agreement can be reached between the consulting parties, the employer is obliged to use criteria that is fair and objective. This legal position has been crystallised by the Constitutional Court (CC) in its recent judgment of Solidarity obo Members v Barloworld Equipment Southern Africa and Others [2022] ZACC 15I.

Evaluating substance vs procedure

On 27 April 2020, Barloworld notified its employees, including Solidarity’s members, of its intention to restructure its operations resulting from the impact of COVID-19. Shortly thereafter, Barloworld lodged a request with the Commission for Conciliation, Mediation and Arbitration (CCMA) for it to facilitate a joint consensus-seeking process between the affected parties and Barloworld. During the consultative process that ensued. Solidarity took issue with the proposed selection criteria – specifically, the inclusion of transformation as part of the selection criteria.

Read More...
https://www.labourguide.co.za/recent-articles/2881-retrenchments-transformation-a-selection-criterion

04/10/2022

Using dagga for anxiety resulted in unemployment

2022/07
By Jan du Toit

Case law alert – July 2022
In Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, case numbers JS 633/20 and JS926/20, as delivered on 01 June 2022, the Applicant was dismissed for testing positive for cannabis, or dagga. The Applicant claimed that she was discriminated against and that her dismissal was automatically unfair.

Case Summary
The Applicant was employed by the Respondent from 11 April 2007 until she was dismissed on 30 April 2020. At the time of her employment with the Respondent, the Applicant occupied the position of Category Analyst, which is a typical office or desk job. Her position was not safety sensitive in that she was neither required to operate heavy machinery nor drive any of the Respondent’s vehicles. At the time of her dismissal, she had a clean disciplinary record.

Read More...
https://www.labourguide.co.za/recent-articles/2902-using-dagga-for-anxiety-resulted-in-unemployment

04/10/2022

MEDIA RELEASE

17 August 2022

Department of Employment and Labour tells employers to act decisively on harassment or accept liability

The Department of Employment and Labour told employers attending the Employment Equity roadshow that failure to take adequate steps to eliminate harassment will render the employer vicariously liable for the conduct of its employees who harass others.

The Director: Employment Equity, Ntsoaki Mamashela, told the workshop today, August 17, 2022. She said: “Failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA. This is the case even if the harassment consists of a single incident".

She told the gathering that any allegation of harassment by an employee brought to the attention of the employer requires of the employer to consult all relevant parties; take the necessary steps to address the complaint in accordance with this Code; the employer’s policy and where applicable, the collective bargaining agreement; and take the necessary steps to eliminate the harassment.

This is according to the new Code of Good Practice on the prevention and elimination of harassment in the workplace that was published on 18 March 2022. The Code covers owners; employers; managers; supervisors; employees; job seekers and job applicants; persons in training including interns, apprentices and persons on learnerships; volunteers; clients; suppliers; contractors; and others having dealings with an organisation.

Mamashela said: “The protection extends to both public and private spaces; where the worker is paid, during rest or meal breaks or using sanitary facilities, washing and changing facilities; work-related trips, travel, training, events, or social activities; related communications including those enabled by information and communication technologies; employer-provided accommodation; and when commuting to and from work in transport provided or controlled by the employer.”

On the issue of EE reporting in the province, the numbers are dismally inequitable with 40 percent of senior management positions occupied by white males with an economically active population of 2.9 percent, black males with an economically active population of 28.8 percent sharing the spoils of senior management positions of just above 16 percent with white females with an economically active population of 3.7 percent.

African females with an economically active population of 22.3 percent occupy a slight percentage above coloured females who have an economically active population of 18.2 percent. The tail end is occupied by Indian men and women as well as foreign nationals in both sexes, all with an economically active population of less than one percent.

For the previous three years, more Africans were more qualified and skilled, followed by coloureds and whites occupying third position.

Deputy Director: Employment Equity, Masilo Lefika told the gathering that the Employment Equity Amendment Bill currently being in Parliament awaiting ascension to and signing by the President will address the imbalances that are experienced in the province.

In sharing their experiences, Commissioner Pietersen from the Commission for Conciliation, Mediation and Arbitration highlighted the fact that the CCMA has jurisdiction in hearing disputes on harassment provided the complainant earns R224 080.08 as per the Basic Conditions of Employment Act provision and those above the threshold are covered only if there is consent or agreement.

“Harassment is in the eyes of the recipient and even a single incident can lead to harassment. Sexual harassment specifically is a good reason for a dismissal” he said.

The next EE Roadshows will take place in the North West and Mpumalanga Provinces on 18 August 2022 in Mahikeng at Seasons Conference and Weddings, Lichtenburg Road, Dihatswane Village and Nelspruit (Mbombela) at Khayalami Hotels, 29 van Wijk Street followed by Rustenburg on 19 August 2022 at Bogosi Lifestyle Farm, Dinie Estate Road, Kroondal.

The national workshops will be held from 10:00 to 13:00 and members of the media are invited.

More information on EE is obtainable from the Department website www.labour.gov.za including updates on the schedule for venues.

For more information, contact,

Teboho Thejane
Departmental Spokesperson
082 697 00694/ [email protected]
-ENDS-

Issued by: Department of Employment and Labour

04/10/2022

MEDIA RELEASE

31 August 2022

Inform your employees about the contents of your harassment Policies-Department of Employment and Labour

The Director: Employment Equity, Ntsoaki Mamashela, told the combined Department of Employment and Labour and Commission for Conciliation, Mediation and Arbitration’s(CCMA) Employment Equity roadshow that employers should effectively communicate the contents of harassment policies to all employees.

“In terms of Section 60 of the Employment Equity Act, employers are under obligation to take proactive and remedial steps to prevent all forms of harassment in the workplace. This includes an assessment of the risk of harassment that employees are exposed to while performing their duties as far as is reasonably practicable”, she said.

Mamashela told employers that they should have an attitude of zero-tolerance towards harassment. “You should create and maintain a working environment in which the dignity of employees is respected and a conducive climate in which employees who raise complaints about harassment will not feel that their grievances are ignored or trivialised, or fear reprisals”.

She told employers to make sure that their harassment policies contain procedures to be followed by the complainant when they encounter harassment as well as for the employer when harassment is alleged. She highlighted that harassment policies must also contain an outline of information on the availability of counselling, treatment, care and support programs for employees who are victims of harassment.

“In terms of the Employment Equity Act, failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the culprit or wrongdoer.

The chairperson of the Employment Equity Commission (EEC), Tabea Kabinde, presented the status of the province in terms of affirmative action. She told the gathering that she is embarrassed by the snail-speed of change in the province and the country as a whole. Kabinde explained that the Commission believes that the current EE amendments, which would empower the Minister to regulate the sector specific EE targets are envisaged to become critical catalysts that would expedite the pace of transformation in the labour market.

According to the Chairperson, the assenting of the Employment Equity Amendment Bill will speed up affirmative action in the country as the Minister of Employment and Labour will regulate sector specific EE targets and will be used as criteria for issuance of EE Compliance Certificate in terms of Section 53 of the EE Act.

Commissioner Dube, from the CCMA reiterated the call by Mamashela that employers effectively communicate policies to their employees. He said “The policy must be explained to employees and not just be displayed on the noticeboard”.

The roadshows held under the theme: “Real transformation makes business sense”, are continuing as follows:

KwaZulu-Natal
Durban (01 September 2022) – Olive Convention Centre, 1 Somtseu Rd, North Beach, Durban
Western Cape
George (06 September 2022) – (venue to be confirmed)
Cape Town (07 September 2022) – (venue to be confirmed)
Gauteng

Pretoria (13 September 2022) – RH Hotel, Corner Steve Biko Road and, Trevenna Street, Sunnyside
Johannesburg (14 September 2022) – (venue to be confirmed)
Vaal (15 September 2022) – (venue to be confirmed)

The national workshops start at 10:00 and conclude at 13:00 and members of the media are invited.

More information on EE is obtainable from the Department website www.labour.gov.za including updates on the schedule for venues.
Media enquiries may be directed to:

Teboho Thejane
Departmental Spokesperson
082 697 0694/ [email protected]

-ENDS-

Issued by: Department of Employment and Labour

04/10/2022

MEDIA RELEASE

01 September 2022

Department of Employment and Labour warns of ‘confidentiality’ when dealing with harassment cases

Niresh Singh, the deputy director of employment equity policy and compliance, told the roadshow that confidentiality is key in dealing with harassment cases.

“Employers and employees must ensure that grievances about harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential to protect the confidentiality of all parties involved”; Singh said.

Singh was addressing the last Employment Equity roadshow for the KwaZulu-Natal Province today, 1 September 2022, in Durban. The roadshows are conducted jointly by the Department of Employment and Labour and the Commission for Conciliation, Mediation, and Arbitration(CCMA).

He said that the confidentiality of harassment cases can be achieved by making sure that all internal and external communications related to an incident of harassment are treated as confidential. “The exception is when the party who reported the incident publicises the matter, where the employer has only to prove that it has taken measures to make the names of the parties confidential”, he said.

The issue of confidentiality does not preclude an employer from taking appropriate steps to protect the safety or dignity of employees, either during the conduct of the investigation or subsequently.

The roadshow was told that false allegations of harassment lead to the accused becoming the harassed. The reason is that the person’s dignity has been impaired.

Niresh highlighted the fact that the employer’s harassment policy should specify the range of disciplinary sanctions that must be proportionate to the seriousness of the harassment in question.

He said the sanctions may include warnings which may be issued for minor instances of harassment and must describe the essence of the misconduct; dismissal which may ensue for continued minor instances of harassment after warnings, as well as for serious instances of harassment; and transferring the perpetrator which only happens in appropriate circumstances.

“All these sanctions or the internal processes do not in any way take away the complainant’s right to lay a criminal charge or institute civil proceedings against the alleged perpetrator”, Singh concluded.

The chairperson of the Commission for Employment Equity (CEE), Tabea Kabinde, said: “We are closing the tap”. She said the current EE amendments, which will empower the Minister to regulate the sector-specific EE targets are envisaged to deal with employers and businesses that do not want to transform.

Free State
· Bloemfontein (13 September 2022) – (venue to be confirmed)
Western Cape
· George (06 September 2022) – (venue to be confirmed)
· Cape Town (07 September 2022) – (venue to be confirmed)
Gauteng
· Pretoria (13 September 2022) – RH Hotel, Corner Steve Biko Road and, Trevenna Street, Sunnyside
· Johannesburg (14 September 2022) – (venue to be confirmed)
· Vaal (15 September 2022) – (venue to be confirmed)

The national workshops start at 10:00 and conclude at 13:00 and members of the media are invited.

More information on EE is obtainable from the Department website www.labour.gov.za including updates on the schedule for venues.
Media enquiries may be directed to:

Teboho Thejane
Departmental Spokesperson
082 697 0694/ [email protected]

-ENDS-

Issued by: Department of Employment and Labour

04/10/2022

MEDIA RELEASE

08 September 2022

Unwanted conduct diminishing the dignity of another constitutes harassment in the workplace – Employment and Labour
Any unwanted conduct that impairs dignity such as giving comments about other people, winking to other people, touching other people, telling other people that they are sexy is constituting to harassment in the workplace.

This was said by the Director of Employment Equity (EE) in the Department of Employment and Labour, Ms. Ntsoaki Mamashela, during the Department’s Employment Equity and the Commission for Conciliation, Mediation and Arbitration (CCMA) Roadshow held at the Cape Town International Convention Centre (CTICC) on 07 September 2022.

Mamashela was explaining the different forms of harassment that are considered prohibited in the workplace to the various stakeholders attending the workshop.

She told the gathering that harassment is: “Any unwanted conduct impairs the dignity of the person being harassed, not the dignity of the person who is giving the comments, who is winking the eye to other people, touches other people, telling other people that they are sexy. Keep it to yourself. Leave it at the door when you get to the workplace”; added Mamashela.

“The courts have already ruled and there is one interesting court judgment where the court said; “a workplace is a professional place, it’s not a place for lovesick puppies that run around commenting on how sexy people are, leave it at the door”; said Mamashela.

The 2022 National Annual Employment Equity Workshops are focused around the Code of Good Practice on the prevention and elimination of harassment in the workplace, CCMA Case Law on all types of harassment and the 2021-2022 EE Annual Reports (22nd CEE Annual Report) and 2022 EE online reporting.

Presenting the Annual Employment Equity Reporting for the Western Cape, Chairperson for the Commission for Employment Equity (CEE), Tabea Kabinde, said, the statistical numbers for the semi-skilled population level are nothing to be celebrated.

“When we get to this level, I don’t celebrate. There is nothing to celebrate because this is really a reflection of the legacy of apartheid and it cannot even be celebrated. We can’t celebrate the fact that the lower you go the darker it becomes. It’s not worth being celebrated. We want to celebrate seeing the movement at the higher levels and then we can say we are really making progress towards economic transformation”; said Kabinde.

The Department of Employment and Labour Western Cape Provincial Head, Mawele Ntamo, told the workshop attendees that the Department remains committed to the agenda of transformation in the workplace and that the EE and the CCMA Roadshow session is a continuous indication of that commitment and also to capacitate the employers and employees.

“Let us hold or tackle the bull by its horns. The statistics that are shown are uninspiring. They say a lot about the people that are in this room because everyone has the responsibility to drive transformation in the workplace. And I’m sure coming back to the next session we should see something different from what has been shown here today”; said Ntamo.

According to the EE reporting status of the Western Cape Provincial Departments and Municipalities, of the thirty (30) municipalities only three municipalities are left wanting in terms of non-reporting three years in a row since 2019.

“I have spoken with the chief inspector to say by now you should have the list of those three municipalities that have not been reporting for three consecutive years, and he has committed that he is going to follow this one. A penalty which goes up to R150 000.00 (may be issued to the three municipalities), and that is a key decision that has been taken that he needs to follow those municipalities and deal with them. And yes, we are encouraged by the responds from other government departments that they are complying”; concluded Ntamo.

The remaining workshops are scheduled to take place as follows:

Gauteng

- Pretoria (13 September 2022) – RH Hotel, Corner Steve Biko Road and, Trevenna Street, Sunnyside
- Johannesburg (14 September 2022) – (venue to be confirmed)
- Vaal (15 September 2022) – (venue to be confirmed)

Free State

- Bloemfontein (13 September 2022) – (venue to be confirmed)

The national workshops start at 10:00 and conclude at 13:00 and members of the media are invited.

More information on EE is obtainable from the Department website www.labour.gov.za including updates on the schedule for venues.

Media enquiries may be directed to:

Teboho Thejane
Departmental Spokesperson
082 697 0694/ [email protected]

-ENDS-

Issued by: Department of Employment and Labour