RE Morebodi Incorporated Attorneys

20/06/2017

Retweeted Black News ():

Dashcam video of 's brutal murder by a white cop. Warning: Graphic content https://t.co/GmnUOekZjk

“ , a black man & legal gun owner, is murdered by a panicked cop. The is (not)shockingly silent https://t.co/wY3ica9GnG https://t.co/wCvE0TnChs”

03/02/2017

CONSTRCUTIVE DISMISSAL. IS IT REALLY A DISMISSAL?

You need to read this before sending that resignation letter.

Definition of Constructive Dismissal

Constructive Dismissal is recognised in our law as one of the forms of dismissal. It is recognised by Section 186(1)(e) of the Labour Relations Act. In terms of this section, Constructive Dismissal takes place when an employee terminates employment … because the employer made continued employment intolerable for the employee. In practice this means an employee resigns, then lodges a claim of Constructive Dismissal with the appropriate forum (CCMA/Bargaining Council).

An employer would hardly agree that it has constructively dismissed an employee, which means that the employee will have to prove his/her case. To do this the employee will have to show that:

1. he/she terminated the contract of employment;
2. his/her continued employment became intolerable; and
3. it was the employer that made continued employment intolerable.
Burden of Proof

Unlike in cases of ordinary dismissals, it is the employee who has to prove that a dismissal did take place. Our courts have previously held as follows, in grappling with this issue:

• Employees claiming constructive dismissal must prove that they, and not their employer, terminated the contract of employment.

• The resignation must also not be for a voluntary reason such as to take up alternative employment, to access pension benefits or for some or other reason motivated by personal circumstances.

• Where a reasonable alternative to resignation exists, it cannot be said that the employer has made continued employment intolerable for the employee.

• Intolerability is determined objectively. It is not established by the employee’s say-so, perception or state of mind. In Jordaan v CCMA is was held that: “With an employment relationship, considerable levels of irritation, frustration and tension inevitably occur over a long period. None of these problems suffice to justify constructive dismissal.”

• The employer must be made aware of the alleged intolerable conditions and afforded an opportunity to address and rectify them. Therefore internal processes like grievance process must be followed first before an employee. It is not open for the employee to second guess the outcome of lodging a complaint or formal grievance.

Conclusion

While Constructive Dismissal in an option in our law, it is difficult form of dismissal for the employee to prove. You might want to sleep over that email before you press that ‘send’ button.

Rebone Morebodi (BA:LLB (UCT))
RE MOREBODI INCORPORATED
[email protected]
012 321 0205 / 081 715 9239

13/10/2016

Retweeted Karyn Maughan ():

The law used against - aimed at prohibiting the "engendering of feelings of hostility between Europeans and non-Europeans" https://t.co/FMmOYrjeWa

01/10/2016

Retweeted Daughter Of The Soil ():

Our black elite is not building new schools. Our black elite is not investing in blk business.Our black elite is drinking Johnny Walker Blue

22/08/2016

Retweeted RSA Min of Sport ():

Any self respecting party will not be in denial but to examine were did we go wrong & REGROUP.We can't blame it o our opponents.

17/07/2016

Retweeted Ambassador Gaspard ():

Congrats South African actress on landing role on Quantico! Appreciate her vocal solidarity with equal justice movement in US.

26/04/2016

Very interesting legal issues raised by the ConCourt in this Vodacom case. Can't wait to do a little summary, & make observations.

23/04/2016

Retweeted Mosimane_wako_Tlokwe ():

This the I was born into...

23/02/2016

(MINING) BEE TRANSACTIONS: REAL OR IMAGINARY BENEFITS?

The South Gauteng High Court was recently seized with a matter which had its origins in a BEE mining transaction. The court in MBETHE v UNITED MANGANESE OF KALAHARI was required to determine whether the Applicant, Mbethe, had succeeded in making out a case in terms of section 165(5) of the Companies Act, 2008 (“the Act”) to institute a derivative action in the name of the Respondent company. In its lengthy judgement (88 pages), the court ruled against Mbethe on the main issue. Mbethe was a director and chairperson of the board when he launched the application.

The Act empowers a shareholder, director, trade union, and other specified persons other than a company to bring or prosecute any legal proceedings on behalf of that company. The court will grant the application if it is satisfied, inter alia, that the Applicant is acting in good faith, that the proposed or continuing proceedings involve the trial of a serious question of material consequence to the company, and that it is in the best interests of the company that the applicant be allowed to institute those derivative proceedings.

The company had as one its indirect shareholders Kalahari Community Trust (“KCT”). KTC was formed by Mbethe with a view to benefiting the local Kuruman community and to achieve the company’s BEE objectives. What prompted this particular Application was the termination of a subcontract of Zastrospace, a company controlled by a long-time friend of Mbethe. The court found that the application had been brought for a collateral purpose of reinstating Zastrospace’s contract and not to address the perceived corporate governance issues within the company. It therefore held that the application had been brought in bad faith ‘’There is no evidence as to how the community has benefited from the Zastrospace contract and the Court is left with the impression that its BEE status was but window dressing and that the contract has served to enrich Roelofse (Mbethe’s friend) and not the community. The same would seem to apply to the KCT as although it is averred that it was formed by the applicant with the specific purpose of representing the BEE requirement which enabled the applicant to capture its mining right, there is no evidence that a single dividend has been declared to the community.’’

The court noted that attempts “have been made to skim off the profits generated by the respondent through management and other contracts, leaving little, in relative terms, for the benefit of the community for whose benefit KCT was formed.’’ It further found that “Indeed, there is no evidence of any dividends having been declared to the trust to date, despite profits having been made.”

Some lessons can be taken from this case. As a prospective BEE partner in a transaction, you should guard against erosion of profit margins (obviously to your detriment) through skims like management fees, exorbitant and unjustified bonuses and other subcontracts with similar purpose. Unfortunately, such skimming seems to have been accepted as normal business practice, and not only individuals, but communities as well have fallen prey to these. You should ideally also enter into transactions in which profits or benefits are contractually guaranteed, especially if any of your money is going into that business.

Rebone Morebodi (BA:LLB (UCT))
RE MOREBODI INCORPORATED
[email protected]

17/02/2016

ARE YOU UNFAIRLY NOT BEING PAID WHAT YOU DESERVE AT WORK?

It is now a well-established principle in our Labour Laws that claims arising out of the Labour Relations Act (“the LRA”) are also subject to the provisions of the Prescription Act. This means if the claimant does not file his claim within a period of 3(three) years from the date on which their claim arose, that claim will prescribe. That party will no longer have a basis in law to institute a claim against the employer.

In the Labour Court matter of ZAMEKA v MINISTER OF CORRECTIONAL SERVICES AND OTHERS, a decision delivered on 2nd February 2016, the court was amongst others required to determine whether the Applicant’s claim for a salary at a higher level had prescribed. She had shortly before implementation of the Occupational Specific Dispensation(“OSD”) been promoted. She however found out in May 2007 that her salary had been adjusted during her promotion, to an incorrect lower level, meaning that she had earned less than what was due to her since her promotion. This means when OSD was implemented an incorrect salary level was used and therefore continued to earn less than what was legally due to her.

Claiming that she was being unfairly discriminated upon on an arbitrary ground, the employee referred an Unfair Discrimination dispute to the CCMA, and later to the Labour Court. The dispute was referred to CCMA in June 2012, some 2(two) years after the alleged date of prescription. She based her claim on section 6 of the Employment Equity Act, which states that ‘’No person may unfairly discriminate, directly or indirectly, against an employee…”. The employee alleged that she had been discriminated against on the basis of geographical location. Employees in other provinces who occupied in similar position to hers were paid at a higher salary level.

Having reaffirmed that claims arising out of the LRA do prescribe, the court cited with approval the dictum in SA BROADCASTING CORPORATION LTD v CCMA & OTHERS. In that matter the court held that an unfair labour practice/unfair discrimination may consist of a single act, and that it may also consist of “continuous, continuing or repetitive’’ acts. In the latter case, where an employer discriminates against an employee “… notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other he is evincing continued discrimination.”

So if you discover that you are being unfairly discriminated upon in terms of remuneration, or that the employer is perpetuating an unfair labour practice against you, as a result of which you receive lower remuneration than you ought to receive, you may still lodge a claim with the CCMA, Bargaining Council, and the Labour Court. You can do this despite the fact that the act complained of commenced more than 3(three) years ago. Your claim will however be limited to a retrospective period of 3(three) years from the date of lodgement of your claim.

Rebone Morebodi (BA:LLB (UCT))
RE MOREBODI INCORPORATED
[email protected]

09/02/2016

Retweeted ANC Info Feed ():

CONCOURT CASE IMPORTANT TO SUPPORT OUR MATURING DEMOCRACY: https://t.co/iFUHXAk7yo https://t.co/LwVDAlynI4

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