Paying bonuses to non-striking employees

Discrimination to pay bonuses to non-striking employees ?

In National Union of Mineworkers obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd (JS102/14) [2019] ZALCJHB 43 (handed down on 1 March 2019) the court had to decide whether the decision of an employer to pay non-striking employees a discretionary bonus during a strike amounts to unfair discrimination.

The court reasoned that the very reason why employees withdraw labour is to harm the employer financially. So if an employer devices means to stay afloat and reward those employees who assisted it to stay afloat, such an employer, does not offend any provisions of the LRA nor the Constitution. Whichever way one looks at it, this is an area of power play.

The court went on to state that discrimination prohibited by the EEA is unfair if the act or omission impairs human dignity. It was held that when an employee is not paid any form of a bonus his or her dignity is not being impaired. In conclusion the court concluded that participation in a strike action is not a listed ground, nor could it be analogous to any of the listed grounds.


By Kobus Erasmus and Mashooda Patel

Previously employees who had children or planned on starting with a family had very limited leave options available to them in relation to maternity and family responsibility leave.

The brief details of these categories of leave are as follows:

In terms of Section 25 of the Basic Conditions of Employment Act, 1997 (BCEA), a female employee is entitled to at least 4 (four) consecutive months maternity leave. Such leave may be taken at any time from 4 (four) weeks before the expected date and the employee may not return to work sooner than 6 (six) weeks after the birth of her child (except if a medical practitioner certifies otherwise). This leave is only available to female employees, is unpaid but the employee may claim certain benefits from the Unemployment Insurance Fund (UIF)

Section 27 of the BCEA in turn provide that all employees (male & female) are entitled to 3 (three) days paid family responsibility leave per annum/year. This type of leave is however subject to certain conditions namely that the employee must have been in employment for longer than 4 (four) months and must work for at least 4 (four) days for that employer. It can also only be used when the employee’s child is born, when the child is sick or in the unfortunate situation where an employee’s child die. Although the employee is entitled to be paid by the employer for taking this type of leave, it is clear that the option of taking such leave is subject to certain strict conditions and limited to very specific circumstances.

This position all changed for the better when the Labour Laws Amendment Act 2018 which was a Private Member’s Bill and the brainchild of the ACDP, was adopted and promulgated. The Bill was drafted in line with their policy on family values, the Green Paper on Family and by concerned fathers and amended the BCEA by introducing 3 (three) new categories of leave namely:

•         Parental Leave (Section 25A)

An employee, who is a parent of a child, is now entitled to at least ten consecutive days’ parental leave. The parental leave may start on the day that the employee’s child is born or the earlier date between the date that the adoption order is granted, or the date that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child.

•         Adoption Leave (Section 25B)

An employee, who is an adoptive parent of a child who is below the age of two, is also entitled to adoption leave of at least ten consecutive weeks or the parental leave referred to above.

•         Commissioning Parental Leave (Section 25C)

The last category of leave introduced provides that an employee, who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least ten weeks consecutively or to the parental leave referred to above.

It should be noted that an employee is not entitled to payment by his/her employer when taking these new categories of leave but would have to claim the prescribed benefits from the UIF, which will be paid at a rate of 66% of the earnings of the beneficiary at the date of application, subject to the maximum income threshold.

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Handling Sexual Harassment complaints

By Ronel de Wet

When a complaint of sexual harassment is received, an investigation must be lodged to determine whether or not the conduct constitutes sexual harassment. In doing so Employers, complainants and Commissioners alike had to, until 19 December 2018, apply both the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace as well as the Amended Code.

In 1998, the Minister of Labour issued a Notice in terms of Government Gazette R1367 of 17 July 1998, and amended the Code on 4 August 2005 with the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (General Notice 1357).

Usually the Amended Code would replace the Code, but in this instance the Code was not repealed, and according to the Labour Appeal Court in Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62 both Codes had to be applied in determining complaints of sexual harassment :-

“In spite of it being termed the “Amended” Code, this Code does not replace or supersede the 1998 Code, which to date has not been withdrawn. The result is that in terms of s203(3), both Codes are “relevant codes of good practice” to guide commissioners in the interpretation and application of the LRA.”  

On 19 December 2018, the Minister of Labour issued Notice R1394, formally repealing and replacing the 1998 Code with the Amended Code of 2005.

The repeal is well received in that it brings clarity in terms of which Code to apply when dealing with complaints of this nature. The Amended Code provides a broader definition, and further guides as to factors to be considered when dealing with acts or complaints of sexual harassment.B