Watch American Horror Story season 4 episode 7 FullEpisode Free Streaming HD

Watch American Horror Story season 4 episode 7 Full Episode Free Streaming HD

Click here: http://bit.ly/1BaWUdD <----

To Watch American Horror Story season 4 episode 7 Full Episode Free Streaming HD

History of American Horror Story season 4 episode 7

The Native Labour Regulations Act 1911 prohibited strikes by trade unions, introduced wageceilings and a pass system for moving around jobs. Over 70,000 Chinese labourers were brought in,and used by landowners to undercut the wages of other workers. Among white workers, there wassignificant unrest, and major strikes took place in 1907, 1913, 1914 and 1922

For a period of sixteen years, from 1979 to 1995, several critical developments occurred in the fieldof labour law in South Africa, beginning with a radical change in the first of these years, when asignificant Commission of Enquiry was held, resulting in the establishment of an Industrial Court,which was given extensive powers to mould, change, shape and develop the law. Prior to 1995, mostlabour relations were based on contracts. In 1995, much of the law developed by the Commissionand the Industrial Court was put together in the Labour Relations Act 1995 (LRA). Since then, mostlabour law has been based on statute.

Prior to 1995, an employee could be dismissed in terms of the contract of employment, which couldpermit any reason for dismissal. Since 1995, an employee may be dismissed only for misconduct,operational reasons and incapacity. The Labour Relations Act 1995 is a pivotal piece of legislation,as it recognises the need for fast and easy access to justice in labour disputes. The Industrial Courthad the status of a High Court, and therefore was not accessible to all labourers.

1995 also saw the introduction of the Commission for Conciliation, Mediation and Arbitration(CCMA) which is an administrative tribunal. The Commission for Conciliation, Mediation andArbitration endeavours first and foremost to conciliate between the parties. If it is unsuccessful inthis, the matter moves on to arbitration. The entire process is very informal, and at no charge, and istherefore very accessible to labourers, who often utilise it: About 300 new cases are brought beforethe Commission for Conciliation, Mediation and Arbitration daily. In addition to the Commission forConciliation, Mediation and Arbitration, 1995 saw the introduction of bargaining councils, whichallow for communication across the industry. A bargaining council is organised collectively andvoluntarily, and must be registered. In order to be registered, an alternative-dispute-resolutionmechanism, similar to the Commission for Conciliation, Mediation and Arbitration, must be put inplace.

The Labour Relations Act 1995 also regulated the issue of fairness, not only in termination butduring employment, too. In 1998, however, most of the law on unfair labour practices was removedfrom the Labour Relations Act 1995 and put into the Employment Equity Act (EEA). The EEA alsodeals with issues such as fairness regarding a worker's human immunodeficiency virus (HIV) statusor disability, as well as the issue of affirmative action.

The Basic Conditions of Employment Act (BCEA), the Health and Safety Acts and the Skills

Development Act, must be read with the EEA. The Skills Development Act provides that a smallpercentage of a labourer's salary must be contributed to the Department of Labour, enabling certainworkshops to be run which are designed to develop skills.

Constitution

Chapter 2 of the Constitution contains several provisions of relevance to employment and labourlaw:

the right to equality;

protection of dignity;

protection against servitude, forced labour and discrimination;

the right to pursue a livelihood; and

protection for children against exploitative labour practices and work that is hazardous to their well-being.

It is important to interpret all labour legislation in light of the Constitution.

Section 23 of the Constitution deals specifically with labour relations, providing that everyone hasthe right to fair labour practices,[1] and specifically the right

to form and join a trade union;

to participate in the activities and programmes of a trade union; and

to strike

Every employer, meanwhile, has the right

to form and join an employers� organisation; and

to participate in the activities and programmes of an employers� organisation.

Every trade union and every employers� organisation has the right

to determine its own administration, programmes and activities;

to organise; and

to form and join a federation

Finally, every trade union, employers� organisation and employer has the right to engage incollective bargaining.

Section 23(1) is an unusual provision�only South Africa and Malawi expressly protect the right tofair labour practices � as it is so broad and overarching. An exact definition of fair labourpractices is impossible, since this is a dynamic field of the law, rooted in socioeconomic rights.

Section 23(1) refers to "everyone," encompassing far more than merely employees and workers; italso includes would-be workers, employers and juristic persons.

Section 23 is not entirely universal, however, as soldiers are excluded from its ambit insofar as theymay not strike at a time of war.

The Labour Relations Act was promulgated as the "national legislation" referred to in subsections23(5) and 23(6), which provide respectively that "national legislation may be enacted to regulatecollective bargaining," and that "national legislation may recognise union security arrangementscontained in collective agreements." Both subsections stipulate that, to the extent that suchlegislation may limit one of the rights in section 23, the limitation must comply with section 36(1),the limitations clause of the Constitution.

The current Basic Conditions of Employment Act is also designed to give effect to the right to fairlabour practices. Both Acts are bolstered by the EEA, which replicates the equality clause in theConstitution in its totality, adding that one may not discriminate on the basis of humanimmunodeficiency virus (HIV) status.

The general guarantee of fair labour practices has far-reaching effects on the civil courts�approach to the interpretation of the rights of parties to employment contracts.

All courts are enjoined, when applying and developing the common law, to have due regard to thespirit, purport and objects of the Bill of Rights. This calls for a reconsideration of some of theassumptions underlying the common-law contract of employment, in particular the employer�spower of command and unfettered rights in respect of promotion and dismissal.

Furthermore, the labour courts� judgments on such contentious issues as the dismissal of strikingworkers are subject to review by the Constitutional Court, so long as the applicants have exhaustedthe procedures available to them under the labour legislation.

In NUMSA v Bader Bop,[2] the Constitutional Court overturned a decision of the Labour AppealCourt which restrictively interpreted the Labour Relations Act 1995. The court recognised thenecessity of collective bargaining and bargaining councils which facilitate the establishment of tradeunions. The court held that minority unions may not strike in support of demands for organisationalrights reserved in the Act for majority unions.

In NEHAWU v University of Cape Town,[3] the Constitutional Court overturned another decision ofthe Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. It had beenargued that the term "everyone" did not include a university or a company, but the court heldotherwise. Furthermore, the court ruled that, under the original section 197 of the Labour RelationsAct 1995, contracts of employment transferred automatically when businesses were transferred,irrespective of the wishes of the employers.

SANDU v Minister of Defence,[4] another Constitutional Court, case Judge O�Reagan dealt withthe concept of a "worker," and held that, although the Labour Relations Act 1995 does not apply toSouth African National Defense Force (SANDF) members, they are still "workers" in terms of theConstitution, which protects the rights of every person in South Africa.

Employment contract

Parties

Identification

The first question to be asked, when seeking to resolve any labour law problem, is whether theparties are indeed "employees" and "employers" within the meaning of the applicable statute or thecommon law.

This has long been a difficult task in South Africa, as it is not always immediately apparent whetherthe parties have entered into the locatio conductio operarum (contract of employment) or merely thelocatio conductio operis (contract of work).

Distinguishing between these two kinds of contracts is critically important, as different legalconsequences flow from the various forms of contract. Most important is that South African labourlegislation applies only in respect of employees, who are entitled to social security benefits and haveaccess to the statutory mechanisms if they wish to seek remedies for violations of their employmentrights. Similarly, only employers are bound by the labour statutes, and are vicariously liable for thedelicts of their employees.

Common law

The first source to be examined, when seeking to determine whether parties to a work relationshipare employers and employees, is the contract into which they have entered.

A contract of employment comes into existence when the parties conclude an agreement thatconforms to the requirements of the locatio conductio operarum. The contract of employment istraditionally defined as "a contract between two persons, the master (employer) and the servant(employee), for the letting and hiring of the latter's services for reward, the master being able tosupervise and control the servant�s work."

This, however, begs the question of how much supervision or control is required to distinguishbetween employees and independent contractors.

Reported judgments have indicated that the task of distinguishing employees and employers fromparties to other contractual relationships entailing the provision of work, or the rendering ofservices, is not a matter of definition; classification of such contracts is a "matter of substance, notmerely of form."

The true nature of the contract, therefore, is determined from the relationship between the parties,not merely the label the parties have given their contract.

Statutes

Statutory definitions do not resolve the problem. "Employee" is defined

in section 213 of the Labour Relations Act 1995 as

"any person excluding an independent contractor, who works for another person or for the State,and who receives, or is entitled to receive, any remuneration; and

"any other person who in any manner assists in carrying on or conducting the business of anemployer;"

in section 1 of the Basic Conditions of Employment Act in exactly the same words; but

in section 1 of the EEA as "any person other than an independent contractor who

"works for another person or for the State and who receives, or is entitled to receive, anyremuneration; and

"in any manner assists in carrying on or conducting the business of an employer."

The difference between the Labour Relations Act 1995 and the EEA is that the Labour Relations Act1995 excludes independent contractors only in section 213(a), while the EEA excludes independentcontractors in both subsections. It is safe, however, to assume that even from the second part of thedefinition of an "employee," as it appears in the Labour Relations Act 1995 or the Basic Conditions ofEmployment Act, independent contractors are implicitly excluded.

At the core of subsection (a) of both definitions lies a reference to the contract of employment: oneperson working for another in exchange for some form of remuneration.

The basic idea behind subsection (b) of both definitions is that employees are those people whoplace their capacity to work at the disposal of others. This is the essence of employment.

The case of Liberty Life Association of Africa v Niselow reiterates the law set out above and theinterpretation of the definition of "employee."

Courts

Labour legislation does not define "contract of service" or the concept of "work" at all.

This means that it is necessary to look outside the legislation to determine the meaning of theseterms, in order to distinguish between an employee and an independent contractor.

The courts have formulated a number of tests for drawing the distinction.

Control test

The control test focuses on the element of "control" exercised by the employer over the employee.

The power to control has traditionally been regarded as the hallmark of the employment contract.With the advent of highly skilled employees who are given free rein in performing their duties, thecourts no longer insist on de facto control, as once they did, but recognise that a right to control issufficient.

The courts initially applied the requirement of a right to control rather strictly, as in R v AMCAServices, where the presiding officer spoke of "a right to control, not only the end to be achieved bythe other�s labour and the general lines to be followed, but the detailed manner in which the workis to be performed."

It is now clear, however, that the courts have in mind, a right to control only in principle. Theemployer not choosing to exercise that right does not render the contract something other than oneof employment.

The application of the control test in isolation is entirely inadequate, as certain employees have awide discretion as to how to perform their work. Such discretion does not alone render themindependent contractors.

The ultimate difference between an employee and an independent contractor is that the principalhas no legal right to prescribe the manner in which the independent contractor brings about thedesired result, but may prescribe methods by which the employee works. In Colonial Mutual LifeAssurance Society v MacDonald, the court held that the employee was subject to the control of theemployer in the sense that the latter had the right to prescribe not only what work had to be done,but also the manner in which that work had to be done. The independent contractor, on the otherhand, could be directed only as to what work must be done, not how it was to be done.

In any event, to define a contract in terms of one of its characteristics is tautological.

Organisation test

The organisation test was developed in French law and adopted by South African law in R v AMCAServices and Another. It is based upon the assumption that whether or not one is an employmentdoes not rest on submission to orders; it depends on whether the person is part and parcel of theorganisation.

In other words, one looks at the extent to which a person (the worker) is integrated into theorganisation of the other person (the employer), or whether the person is performing work inside theorganisation of another.

The work of an independent contractor, although done for the business, is not integrated into it; it isonly accessory to it.[5]

If a person is incorporated into or related sufficiently to the organisation, that person will beregarded as an employee or a worker even though the employer might exercise little actual controlover him.

One of the problems with this test is that it is not always possible to measure the extent ofintegration, or to determine what degree of integration is sufficient for someone to qualify as anemployee.

The test was rejected by the Appellate Division in S v AMCA Services on the basis of its being toovague.

Multiple or dominant-impression test

The deficiencies of the control and organisation tests led the courts to approach the question in thesame way that they approach so many other problems: The relationship is viewed as a whole; aconclusion is drawn from the entire picture.

In Ongevallekommissaris v Onderlinge Versekeringsgenootskap AV-BOB, although the court did notspell out exactly what may be included in the general picture, guidance may be derived from theEnglish case of Ready Mixed Concrete v Minister of Pensions and National Insurance, in which thepresiding officer set out three possible components:

The servant agrees that, in consideration of a wage or other remuneration, he will provide his own

work and skill in the performance of some service for his master.

He agrees, expressly or impliedly, that in the performance of that service he will be subject to theother�s control in a sufficient degree to make that other master.

The other provisions of the contract are consistent with its being a contract of service.

When courts examine the "other provisions of the contract," they will consider all relevant aspects ofthe relationship. These include:

the form of the contract;

the right to supervision (in other words, whether the employer has the right to supervise theperson);

the extent to which the worker depends on the employer in the performance of his duties;

whether the employee is not allowed to work for another;[6]

whether the worker is required to devote a specific amount of time to his work;

whether the worker is obliged to perform his duties personally;[7]

whether the worker is paid according to a fixed rate or by commission;

whether the worker provides his own tools and equipment; and

whether the employer has the right to discipline, suspend and dismiss the worker.[8]

The decisive difference between the control test and the dominant-impression test is that, in thelatter, the existence or absence of control is only one of the factors to be taken into account.

In Smit v Workmen's Compensation Commissioner, the court had to decide whether Smit, who hadbeen employed as an "agent" for an insurance company, was an employee or not. He had been

remunerated on a commission-basis;

forbidden to perform certain acts (such as pledging the company�s credit) without writtenauthority;

forbidden from working for another company at the same time, but was not required to work full-time and could do other work at different times;

given the use of a company motor-car, but had to pay of out of his own pocket for fuel and servicing;

working closely with a manager, but there was a total absence of any right of supervision andcontrol of Smit by the insurance company; and

able to obtain assistance from others in performing his duties.

The dominant-impression test was followed in this case, and Smit was held to not be an employee of

the insurance company.

In Medical Association of SA v Minister of Health, several district surgeons challenged the decisionof the provincial MEC for Health for the Free State to terminate their contracts summarily as part ofthe restructuring of the district health service. The multiple or dominant impression test wasfollowed, and the court used the factors discussed in Smit to assist it in obtaining the dominantimpression that part-time district surgeons were in fact employees of the State.

The court held that the dominant-impression tests entails that one should have regard to all thoseconsiderations or indica which would contribute towards a determination of whether the contract isone of service or of work, and react to the impression one gets upon a consideration of all suchindica. The Labour Court based its decision on the following factors:

The doctors rendered "personal services."

The doctors were expected to be "at the beck and call" of the employer 24 hours a day, and to givepreference to official duties over those in their private practices.

The employer was obliged to pay a "contractual salary" to the doctors even in the absence of anyactual work being performed, as long as the doctors made themselves available to do the work.

Even though the doctors were professionals, the provincial administration did have some controlover the way in which services were rendered.

The test has been subjected to severe criticism. Etienne Mureinik has said that it test

offers no guidance in answering the (legal) question whether the facts are of such a nature that theindividual may be held to be servant within the meaning of the common law in difficult (penumbral)cases. Indeed, it is no test at all. To say that an employment contract is a contract which looks likeone of employment sheds no light whatsoever on the legal nature of the relationship.

This criticism is based on the idea that it is not helpful to say a particular relationship exists becauseit looks like it does.

Productive capacity test

In other decisions, the courts appear to have resorted to what may be described as the "productivecapacity" test.

This test was formulated in Martin Brassey�s article "The Nature of Employment" in the followingterms:

The independent contractor �sells the job� whereas the employee �sells his hands� [...E]mployment is a relationship in which one person is obliged, by contract or otherwise, to place hisor her capacity to work at the disposal of another [... A]n employee is to be distinguished from anindependent contractor, who undertakes to deliver, not his or her capacity to produce, but theproduct of that capacity, the completed work.

Differences between employees and independent contractors

In SA Broadcasting Corporation v McKenzie, the Labour Appeal Court summarised the main

differences between the contract of employment proper and what is called the "contract of work"(locatio conductio operis):

In the first, the object is the rendering of personal services between employer and employee; in thesecond, the object is the production of a certain specified service or the production of a certainspecified result.

The employee renders the service at the behest of the employer; the independent contractor is notobliged to perform his work personally, unless otherwise agreed.

The employer may decide whether it wishes to have employee render service; the independentcontractor is bound to perform specified work or produce a specified result within a specified orreasonable time.

The employee is obliged to obey lawful, reasonable instructions regarding work to be done, and themanner in which it is to be done; the independent contractor is not obliged to obey instructionsregarding the manner in which a task is to be performed.

A contract of employment proper is terminated by the death of the employee; the contract of work isnot terminated by the death of the contractor.

A contract of employment terminates on completion of the agreed period; the contract of workterminates on completion of the specified work, or on production of the specified result.

Labour Relations Act 1995 s 200A

There is very little work that cannot be outsourced. Outsourcing is generally not supported by tradeunions, who represent employees. If work is outsourced, the worker is an independent contractor.Political pressure was placed on government to move away from outsourcing and more towardsemployment.

In 2002, accordingly, a new presumption was added to the Labour Relations Act 1995, providingguidelines on when it has to be ascertained whether or not someone is an employee. Thispresumption was introduced as a part of significant amendments to the Labour Relations Act 1995and the Basic Conditions of Employment Act in 2002.[9]

The effect of this rebuttable presumption is that, if one or more of the list of factors is present, theperson is presumed to be an employee unless and until the contrary is proven. Many of the factorsand issues discussed by the courts in the cases above resurface again: The presumption is thuscreated

if the manner in which the person works is subject to the control or direction of another person;

if the person�s hours of work are subject to the control or direction of another person;

if, in the case of a person who works for an organisation, the person forms part of that organisation;

if the person has worked for that other person for an average of at least forty hours per month overthe last three months;

if the person is economically dependent on the person for whom he works or renders services;

if the person is provided with tools of trade or work equipment by the other person; and

if the person only works for or renders services to one person.

The legislative provision has been taken by some to be merely a restatement or summary of theprinciples laid down by the courts with the passing of time.

Although this presumption is useful in determining whether a person is an employee or not, as it isclosely linked to the principles and approaches developed by the courts, the Labour Court held, inCatlin v CCMA, that section 200A does not do away with the principle that the true nature of therelationship between the parties must be gathered from the contract between them. Section 200A isnot the starting point, therefore; the court held that it is necessary to consider the provisions of thecontract before applying the presumptions.

Essentials

The common-law concept of employment sets the scene for the interpretation of the LabourRelations Act 1995.

The contract of employment is the foundation of the relationship between an employee and hisemployer. It links the two parties in an employment relationship, irrespective of the form thecontract takes.

The existence of an employment relationship is the starting point for the application of all labour lawrules. Without an employment relationship between the parties, the rules of labour law do not apply.

The origin of South Africa's modern contract of employment lie in Roman law, where a distinctionwas made between the two types of contracts discussed above: locatio conductio operis and locatioconductio operarum.

In terms of the common law, one does not have to have a written contract; therefore, not having thecontract in written form is not a fatal flaw, as the contract can be verbal. There are, however, anumber of statutes which require specific contracts of employment to be in writing. Section 29 of theBasic Conditions of Employment Act, for example, states that the employer must supply theemployee with certain written particulars concerning specific things, like hours worked andremuneration.

Like any contract, the locatio conductio operarum commences when the parties have agreed to itsessential terms, unless both parties have agreed to suspend its operation for a particular period. Ifthe contract's operation is suspended, the employer is obliged to allow the employee to commencework on the specified date. Failure to do so, without good cause, constitutes a breach of contract atcommon law and a dismissal under the Labour Relations Act 1995. It is important, therefore, todetermine what the essentials of the contract of employment are.

Stripped to its essence, the contract of employment today may be defined as an agreement betweentwo parties, in terms of which one party (the employee) works for another (the employer) inexchange for remuneration. Although this definition appears to be simple, it contains a number ofimportant principles, aspects and implications. When they are taken into account below, thedefinition of the employment contract may be expanded as follows:

The contract of employment is a voluntary agreement between two legal personae (the parties) in

terms of which one party (the employee) places his or her personal services or labour potential atthe disposal of the other party (the employer) for an indefinite or determined period in exchange forsome form of fixed or ascertainable remuneration, which may include money and/or payments inkind. This entitles the employer to define the employee�s duties and to control the manner inwhich the employee discharges them.

Agreement

Firstly, it must be noted that the employment contract is based on agreement; the parties must enterinto it voluntarily. This idea finds expression in section 13 of the Constitution, which provides that"no one may be subjected to slavery, servitude or forced labour," and section 48 of the BasicConditions of Employment Act, which states that "all forced labour is prohibited."

Another implication of the fact that the employment contract is based on agreement is that it is acontract, and therefore must comply with the requirements of our law for a valid contract. If it doesnot comply with these requirements, it will not be regarded as binding and enforceable.

Consensus between the parties means that both must have a serious intention to create mutualrights and duties to which they will be legally bound. They must have each been fully aware of thenature of the duties, and that the other had this intention.

At common law, the parties are not required to observe any formalities. There is no requirement thatthe contract be in writing, but certain employment contracts are required by statute to be in writing,like those of merchant seamen and learners under the Skills Development Act. In addition, those ofapprentices and candidate attorneys must also be registered with the appropriate authorities. Lastly,where parties wish to alter provisions of the Basic Conditions of Employment Act, this must be donein writing.

Work

Secondly, one of the pivotal concepts in the initial definition is that of work. Generally, to workmeans to place one�s labour potential at the disposal and under the control of another. Thismeans that, when we work, we offer our services to another person, and agree that the other personwill be able to tell us what to do, when to do it, how to do it and where to do it.

To place your labour potential at the disposal of another means to offer your ability to performcertain tasks to another person, and to offer, at the same time to follow that person�s instructions.

Remuneration

Remuneration normally takes the form of payment of money, or the provision of another benefit.(According to the common law, payment may be made in kind.)

Payment may be made monthly, weekly, daily or even in irregular cash payments. The common lawdoes not prescribe what form payment must take.

The Labour Relations Act 1995 contains a statutory definition of remuneration in section 213: "anypayment in money or in kind, or both in money and in kind, made or owing to any person in returnfor that person working for any other person, including the State."

The contract may state that remuneration is the "normal going rate for a specific type of work," or

state a specific amount or merely "minimum wage."

The common law does not indicate minimum wages; these are usually set by collective-bargainingcouncils and are industry specific.

Reciprocity

The contract of employment is a reciprocal contract. This means that one promise is made inexchange for another, and one obligation is incurred in exchange for the other. The employee worksin exchange for remuneration; the employer remunerates the employee in exchange for theemployee offering to place his labour potential at the disposal and under the control of the employer.

Summary

To summarise, the essential elements of the employment contract are as follows:

It is a voluntary agreement.

There are two legal personae.

The employee agrees to perform certain specified or implied duties for the employer.

There is an indefinite or specified period.

The employer agrees to pay a fixed or ascertainable remuneration to the employee.

The employer gains a (qualified) right to command the employee as to the manner in which hecarries out his duties.

Duties

An employment relationship commences only when the parties conclude a contract of service. Priorto this, neither party has any rights against the other; they are merely a prospective employee and aprospective employer.

There are, however, two statutory exceptions to the principle that employers have no obligations toapplicants for employment:

The EEA prohibits direct or indirect unfair discrimination against an employee or applicant foremployment on the basis of race, colour, gender, sex, religion, political opinion, ethnic or socialorigin, sexual orientation, age, disability, religion, conscience, belief, culture, language, familyresponsibility, marital status or any other arbitrary ground.

The Labour Relations Act 1995 and the Basic Conditions of Employment Act protect both employeesand persons seeking employment against discrimination for exercising rights conferred by theActs.[10][11]

Employer

In addition to the three principle duties of the employer, discussed below, employers are furtherobliged to accord employees their rights in terms of the applicable contracts of service, collective

agreements and legislation, as well as to adhere to certain statutory duties imposed in the interestsof employees.

Receipt into service

The employer�s obligation to receive the employee into service is the corollary of theemployee�s duty to enter and remain in service.

The duty to receive employees into service does not mean that employers must necessarily provideemployees with work to keep them busy, although this general rule is subject to some exceptions:where, for example, remuneration is based on the volume of work done, as in the case of piece-workers or salespersons working on commission, or where the failure to allow the employee to workdegrades his status. A duty to provide work may also arise where the employer has contracted totrain the employee in a particular profession or trade, as in the case of article clerks andapprentices.

The common law permits the suspension of an employee, suspected of some form of gravemisconduct, while the matter is being investigated, but the employee is entitled to his remunerationduring the period of suspension.

Employers may deny their employees access to the workplace, or otherwise prevent them fromworking, in the course of collective bargaining. This is known as a "lock out," and is theemployer�s equivalent of the employees� strike. If a lock out is lawful�if, that is, it complieswith the Labour Relations Act 1995�the employer is relieved of its obligation to pay the locked-outemployees their wages.

Since the contract of employment is personal, one employer cannot compel an employee to work foranother if the first employer has no work for him, unless the first employer's business is transferredas a going concern.

Payment

This duty is so fundamental to the employment contract that the courts will assume, where there hasbeen no agreement on remuneration, either that the contract is not a contract of employment, orelse that the parties impliedly intended the payment of a reasonable sum according to the customand practice of the industry and locality.

The duty to pay, and the commensurate right to remuneration, arises not from the actualperformance of work, but from the tendering of service.

It has become a widespread practice for employers to make up remuneration "packages" for theirhigher-paid employees in a tax-effective way, by substituting various benefits (like housing and carallowances) for the cash component of the salary.

The periodicity of payment depends on the parties� agreement or on custom.

An employer may not unilaterally deduct any amount from the remuneration to which an employee isentitled.

If the contract is terminated summarily for good cause, the employer must pay the employee forservices rendered to the day of the dismissal. The same principle applies when the employee deserts

mid-term before the end of a fixed-term contract or without proper notice.

Safe and healthy working conditions

Under the common law, employers are obliged to provide their employees with reasonably safe andhealthy working conditions.

The scope of this duty extends to providing proper machinery and equipment, properly trained andcompetent supervisory staff, and a safe system of working.

If the employer fails to meet this obligation, affected employees are not in breach of contract if theyrefuse to work until the dangerous situation is corrected.

Under the common law, employees had to rely on delict if the employer did not ensure that theworking conditions were safe and healthy, but this was viewed to be imprecise, and the Legislatureintervened. The situation is now governed by the Occupational Health and Safety Act, whichimplements strict liability on the employer, and states how much must be paid to the employee ifaccidents occur.

Remedies

If the breach is material, the employee may claim damages. Provided it is a material breach, theemployee may also cancel the contract of employment.

The employee may also claim specific performance. This was seldom granted in the past but is nowconsidered an option.

Finally, the employee may refuse to work, withholding labour until the contract is performed.

Employee

Entering and remaining in service

The main obligation of the employee under the contract is to place his personal services at thedisposal of his employer.

The tender of service is a prerequisite to and the corollary of the employee�s right to claimpayment of wages: "no work, no pay." The reverse also applies: "no pay, no work," so that employeeswho have not been paid may legitimately refuse to work without breaching their contracts.

If a number of workers engage in a concerted cessation of work for the purpose of obtaining someconcession from their employer, they are deemed to be on strike. Under the common law, strikingworkers need not be paid. The common law also allowed employers summarily to dismiss strikingemployees, but this has since been changed by the Labour Relations Act 1995.

Subject to the right to take such paid leave as has been agreed upon or conferred by statute, onceemployees have entered service, they remain obliged to render service until the contract ofemployment ends.

If the employee fails to render service (by desertion, absenteeism, abscondment, unpunctuality,etc.), the employer is entitled to deduct from the employee�s wage an amount proportional to the

absence.

Reasonable efficiency

Employees are deemed by law to guarantee impliedly that they are capable of performing the tasksthey agree to perform, and that they will carry them out with reasonable efficiency.

Where an employer seeks assurances about employees� competence before taking them intoservice, the employees are bound by any representations they may make, whether those professionsof competence are made by the employees themselves, or in testimonials of which they are aware.

The standard of competence employers are entitled to expect of their employees depends on thecapacities in which the employees are engaged and the status and seniority accorded them.

The test for the standard of competence is that of persons comparable with the employees inquestion, having regard to training, experience and any special claims the employee might havemade regarding his competence.

Where an employee has warranted that he possesses a particular degree of skill, he must satisfy thatrepresentation.

Furthering employer�s business interests

Employees are obliged to devote their energies and skills to furthering their employer�s businessinterests. They must devote all their normal working hours to the employer�s business; they maynot, without the employer�s permission, simultaneously work for another employer during thehours they are contractually obliged to devote to their employer�s needs.

These duties arise because the relationship between the parties is of a fiduciary nature: Employeesmay not place themselves in positions where their own interests conflict with those of theiremployers and may not, by exercising their powers of agency, acquire interests or benefits withoutthe knowledge of their employers.

The interests of Employees must be bona fide: They may not work for another employer if itsbusiness interests are in conflict with those of the principle employer.

In the absence of a contrary provision in the contract, there is nothing to preclude employees fromholding two compatible jobs, provided the second is not conducted during the working hours theyare obliged to devote to the first job. Contractual provisions limiting employees� moonlightingactivities are, however, permissible.

In addition, employees may not compete with their employer�s business for their own account.

Respect and obedience

Respect and obedience are regarded as an implied duty of every employee. Absence of the formerrenders the interpersonal relationship between employer and employee intolerable; denial of thelatter undermines the employer�s right to decide how its employees will work.

The courts require all employees to show a reasonable degree of respect and courtesy to theiremployers, and to obey their employers� reasonable and lawful instructions.

Respect, being a disposition, is a quality that is difficult to define with precision. It is not to beequated with deference in a manner compatible with the subordinate position in which the employeeby definition stands vis-Ã -vis the employer.

Mere failure on occasion to greet the employer or superiors will not place employees in breach oftheir obligation to show respect. Disrespect must be gross if it is to justify termination of theemployment relationship, or so frequent as to suggest that the employee has repudiated theemployer's lawful authority, or that it has rendered the continuation of the employment relationship"intolerable."

Each case must be considered on its own merits to establish whether these inferences may bedrawn.

Unless insolence is particularly gross, the proper sanction is a written warning in the first instance.

The employee�s duty of obedience applies only to work-related orders and generally duringworking hours and to those orders which are lawful and reasonable.

Employees are also entitled to disobey instructions that would subject them to personal dangers notnormally connected with the performance of their duties.

An order is unlawful if it requires the employee to perform an illegal act or to do something that fallsoutside the scope of the contractual relationship.

Refraining from misconduct generally

Any misconduct that renders the continuation of the employment relationship intolerable orunworkable, or undermines trust and confidence between employer and employee, is regarded assufficient to justify dismissal, provided it is serious enough to offset the importance which the courtsotherwise attach to the work security of employees. Examples of misconduct are insubordination,theft, fraud.

With regard to misconduct committed before the formation of the conduct (like the commission of aserious crime), the general principle is that there is no duty on prospective employees to discloseprejudicial information from their past to their future employers unless they are specifically asked todo so.

A duty may arise, however, where the non-disclosure is material and amounts to fraud. Whether ornot an employee may be dismissed for non-disclosure depends on whether or not the employmentrelationship can reasonably be sustained after the discovery of the past misdeed.

Remedies

The employer may only dismiss the employee summarily for misconduct, incapacity or operationalreasons. If damages are incurred as a result of a breach of one of these duties, the employer mayclaim compensation.

Basic employment rights

The Basic Conditions of Employment Act is aimed at low-income earners: those who earn less thanR193,805 per annum.[12]

No matter what the contract itself says, the Basic Conditions of Employment Act is applicable as theminimum standard that must be achieved.

The Labour Relations Act 1995 deals with strikes and unions and the like; the Basic Conditions ofEmployment Act is a fall back option for those vulnerable workers who are not able to unionize dueto various reasons, such as the kind of work they do. Domestic and farm workers are pertinentexamples in the South African context.

The purpose of the Basic Conditions of Employment Act is to advance economic development byproviding basic conditions of employment.

The Basic Conditions of Employment Act also contains the definition of an employee, so that issue,discussed above, is relevant here, too. The Minister is empowered to extend the provisions of theBasic Conditions of Employment Act to non-employees in specific circumstances. Even, therefore, ifa domestic worker is not considered an employee in terms of the Basic Conditions of EmploymentAct, the Minister may extend the provisions to her for her own protection.

Minimum Wage

The employer has no discretion to pay less than the minimum wage. As noted above, the BasicConditions of Employment Act provides the minimum standard to be achieved; employers must, atthe very least, abide by the Basic Conditions of Employment Act.

Minimum wages are the result of bargaining councils in most circumstances, but some professionshave no bargaining councils. Their minimum wage is therefore regulated by the Basic Conditions ofEmployment Act.

Hours

A maximum of 45 hours per week is allowed to be worked.

Overtime

Overtime is permitted on the basis of a voluntary agreement.

Payment for overtime is 1½ times the normal wage.

Sundays

Payment for working on a Sunday is twice the normal wage.

Meal intervals

An employee is entitled to one hour off during every workday. This may be varied by agreement, butthe employee must have at least thirty minutes off for lunchtime; the parties may not agree to abreak of less than thirty minutes.

Weekly rest periods

An employee is entitled to 36 consecutive hours off. Issues such as night work, holidays and publicholidays are also covered.

Sick leave

An employee is entitled to 36 days off over a three-year period.

Maternity leave

An employee is entitled to four months off in total. It does not, however, stipulate that this is paidleave. In terms of the Unemployment Insurance Fund, when a woman is on maternity leave, she isentitled to Unemployment Insurance Fund benefits for half the time spent away. Usually theemployer will pay the other half, but this is not required in the Basic Conditions of Employment Act.

Family-responsibility leave

If the employee has been working for more than four months, he is entitled to family-responsibilityleave, as in the case where there has been a death in his family.

Remuneration

Employers must keep records of the hours worked and remuneration awarded for each employee forat least three years.

Employees are to be paid in South African currency at the place of work (unless this is altered in thecontract).

Employers may not deduct money from employees unless prior consent in writing is obtained.

Regarding severance pay, in cases of retrenchments or dismissals for operational reasons,employees are entitled to one week�s pay for every year worked.

Variations

The Basic Conditions of Employment Act is the very minimum standard required by employers.Employers may award more, but never less, than what is stipulated.

If an employer gives more than the minimum, he may be locked into always giving more, as he mustthen abide by the required annual increases, which are based on a percentage of the current pay.

An employer may vary the provisions in the contract by

individual agreement; or

collective agreement on an industry-wide basis.

Unfair labour practices

In the past, the concept of "unfair labour practice" was broadly defined. The Industrial Court (aspecialist tribunal that exercised jurisdiction over alleged unfair labour practices) took severalinnovative approaches. The court formulated a set of rules to govern unfair dismissals. These rulesare now contained in Chapter VIII of the Labour Relations Act 1995 and in the Code of GoodPractice: Dismissal.[13]

The employment relationship has three stages:

the beginning, when the employee is an applicant for employment;

the middle, which continues as long as the relationship continues; and

the end, which may take the form of dismissal, resignation or retirement.

Unfair conduct by the employer at the beginning of the relationship normally takes the form ofunfair discrimination. Unfair conduct by the employer at the end of the relationship normally takesthe form of unfair dismissal. Unfair conduct by the employer during the subsistence of therelationship will take the form of unfair labour practice.

Section 186(2) of the Labour Relations Act 1995 defines an "unfair labour practice" as "an unfair actor omission that arises between an employer and an employee," and involves

unfair conduct by the employer relating to the promotion, demotion, probation or training of anemployee, or relating to the provision of benefits to an employee;

the unfair suspension of an employee, or any other unfair disciplinary action short of dismissal;

a failure or refusal by an employer to reinstate or re-employ a former employee in terms of anyagreement; and

an occupational detriment, other than dismissal, in contravention of the Protected DisclosuresAct,[14] on account of the employee's having made a protected disclosure defined in that Act.

Scope of protection

The first part of section 186(2) speaks of an unfair labour practice as any unfair act or omission thatarises between an employer and an employee. Only persons who are already in employment,therefore, enjoy protection against unfair labour practices; only persons, that is, who fall within thedefinition of "employee."

This concept may also cover ex-employees, if an employer refuses or fails to re-employ a formeremployee in terms of an agreement, for example.

Exhaustive list

Due to the use of the word "involving," the courts have held that the list of unfair labour practices,contained in section 186(2), is exhaustive. Therefore the definition of "unfair labour practice" in thecurrent Labour Relations Act is considerably narrower than that of its predecessor, the Labourrelations Act of 1956. This is because concepts such as unfair discrimination have been removedfrom its ambit and included in the EEA.

The fact that the list is exhaustive raises three issues, as the Constitution expressly affords everyonethe right to fair labour practices:[15]

whether the limitation of the constitutional right is justifiable, which according to the generalconsensus it is;

the actual interpretation of this definition; and

the freedom of employees to rely directly on the Constitution, as opposed to the current LabourRelations Relations Act.

With regard to the interpretation of this definition, the general principle is that legislation that limitsconstitutional rights must be interpreted in such a way as to minimise the limitation. The definitionmust be interpreted so as to give the maximum possible protection.

With regard to the freedom to rely directly on the Constitution, employees may rely directly on theConstitution to challenge practices not covered by the Labour Relations Act 1995, like transfers.This issue, however, remains to be developed by the courts.

Promotion and demotion

Basic principles

Many cases have been referred to the Commission for Conciliation, Mediation and Arbitration andthe courts in this regard. From these cases, three main issues arise:

the meaning of "promotion" and "demotion;"

the unfairness of the employer's conduct; and

remedies.

Meaning

Employers commonly use one of two systems to promote employees:

level progression, whereby employees are evaluated on a regular basis and progress to a higherlevel within the parameters of the job in question; and

the application-for-vacancies system, whereby vacancies are advertised, and both current employeesand external applicants are invited to apply for posts.

The second system is problematic. The Commission for Conciliation, Mediation and Arbitration andthe courts have held that it is not promotion at all, as the employee is nothing other than a jobapplicant.

Firstly, in order to constitute a dispute concerning promotion or demotion, the aggrieved individualmust be an employee of the employer to which he wishes to take action.

Secondly, one must compare the current job held by the employee with the job applied for.

Factors which are taken into account include any difference in remuneration levels, fringe benefits,status, levels of responsibility or authority or power, and the level of job security.

In Mashegoane v University of the North, the dispute was whether the university�s refusal toappoint a lecturer to the position of Dean of a faculty involved a promotion. The legislationgoverning the university provided that Deans were appointed by the Senate acting on the

recommendation of the Faculty Board. The university argued

that the position of the Dean was not applied for; and

that it was not a promotion; but

that it was a nomination.

Once the court established that the applicant was a current employee, it found that his salary wouldhave remained the same, but that he would have received a Dean's allowance and would have had acar at his disposal; these were the only benefits. His status would have been considerably elevated.He would have had more responsibilities, authority and powers. In light of this, the appointmentamounted to a promotion.

In Nawa v Department of Trade and Industry, however, the court held that there was no promotionbecause there was no intention to change the existing terms and conditions of employment, eventhough there was an intention to change the way in which work was done.

Generally the Commission for Conciliation, Mediation and Arbitration and other institutions arequick to assume that there was indeed a promotion or demotion.

Disputes concerning Promotion and Demotion generally involve employees being denied a higher-level post within the structure of the employer's organization or being stripped of status or benefits.

Unfairness

Generally, unfairness implies a failure to meet an objective standard, and includes arbitrary,capricious or inconsistent conduct, regardless of whether it is intentional or negligent.

Mere unhappiness on the part of the employee is not unfair.

With regard to substantive fairness, it may be difficult to justify the choice of a particular candidatein precise terms. An employer is at liberty to take into account subjective factors, such asperformance at an interview, when considering an appointment or promotion. The employer muststill provide reasons, however.

With regard to procedural fairness, the employer must follow its own procedures: If there is apractice of advertising the posts, it may not, without good reason, depart from that policy. Anemployee may challenge the composition and competency of a selection panel.

Examples of unfairness include bias, nepotism and erroneous exclusion of an employee from ashortlist due to a mistake by the employer or selection committee.

Remedies

The relief must be determined on terms deemed reasonable by the Commissioner.

Relief may be in the form of a declaratory order, protective promotion, remitting the matter back tothe employer for reconsideration, and reinstatement to a previous position (in the case of demotion).

Probation

Guidelines may be gathered from the rules which govern the obligations of the employer before afair decision to dismiss on the grounds of poor performance is reached, and also from the Code ofGood Practice: Dismissals.

In this context, unfair conduct may include the failure to inform the employee properly aboutrequired performance standards, and the failure by an employer to afford the employee reasonableguidance, evaluation, training, counselling and instruction.

Provision of benefits

An employer may commit an unfair labour practice through unfair conduct relating to the provisionof benefits.

This provision, contained in section 186(2)(a) of the Labour Relations Act 1995, does not appear tobe problematic, but it has been beset by considerable uncertainties regarding the interpretation of"benefits."

Early decisions of the Commission for Conciliation, Mediation and Arbitration attached a widemeaning to the term "benefits."

The problem is complicated by section 65(1)(c) of the Labour Relations Act 1995, which providesthat employees may not strike over issues that may be referred to arbitration in terms of the LabourRelations Act 1995. A dispute over "benefits" may be referred to arbitration. If "benefits" is given awide meaning, and is taken to include remuneration, this would mean that employees may not strikeover wages and salaries.

There are two approaches to resolving the problem of interpretation:

focus on the meaning of the word "benefit," and try define it; or

focus on the nature of the dispute itself, bearing in mind the distinction between disputes over rightsand disputes over interests.[16]

Generally the courts take a narrow approach to interpretation. They apply a combination of the twoapproaches above. It has been held that the term "benefits" in the definition of an unfair labourpractice includes only benefits ex contractu and ex lege: benefits that already exist in terms of acontract or law.

There is growing support for the notion that unfair labour practices should include not only disputesof right, but also disputes where there is an expectation of a right.

Training

This prohibition has had little impact in practice. In view, however, of the obligations placed onemployers in terms of the EEA and Skills Development Act, it may become more important in thefuture.

Generally employees may challenge the denial of training where such training is a prerequisite foradvancement in the workplace.

Unfair suspensions

There are two types of suspension:

preventative suspension, where disciplinary charges are being investigated against an employee,and the employer wants to suspend the employee pending the outcome of the disciplinary enquiry;and

punitive suspension, where suspension is imposed as a disciplinary measure short of dismissal afterthe disciplinary hearing has been held.

In the context of section 186(2)(b), one must consider whether both types of suspension are covered,and what the requirements for a fair suspension are.

Initially the view was taken that only punitive suspensions fell within the scope of the "unfair labourpractice," but this view was rejected by the Labour Court.

The Commission for Conciliation, Mediation and Arbitration follows the Labour Court's view andassumes jurisdiction over both punitive and preventative suspensions.

The practice of preventative suspension is not in itself unfair so long as there is substantive andprocedural fairness when the employer takes this decision.

Substantive fairness in this context refers to the reason for the suspension. The employer must havea reason for believing that the suspension is necessary. This could be, for example, where theseriousness of the misconduct creates rumours and suspicion, necessitating a suspension of theemployee in order for work to carry on smoothly, or where the employer has reason to fear that theemployee in question may interfere with the investigation or the witnesses. It may also be that theemployer fears another recurrence of the misconduct, or that the seniority and authority of theemployee in question has a bearing on the matter.

Procedural fairness does not necessarily mean that the employee must be given a hearing before thesuspension. At least, though, that the employer must inform him of the suspension, the reasons forit, and the conditions of the suspension.

As a general rule, the employer must continue remunerating the employee during the course of thesuspension. If he were to cease remuneration, this would constitute a breach of contract.

Suspension without pay is generally only possible if the employee consents, or if this is provided bylegislation or the contract of employment itself.

If the suspension is grossly unfair, the employee may seek reinstatement as a remedy.

Where the unfairness is less serious, the employee may seek an alteration of the conditions of thesuspension or require that the employer hold a disciplinary hearing within a specified time.

Other disciplinary action short of dismissal

Other disciplinary actions, like warnings, suspensions with or without pay, demotions and transfers,must also meet the requirement of fairness. The employer must be able to show that the warning,demotion or other disciplinary action was fair and appropriate in the circumstances.

Failure or refusal to reinstate

Section 186(2)(c) of the Labour Relations Act 1995 protects employees against a "failure or refusalof an employer to reinstate or re-employ a former employee in terms of any agreement."

The wording is almost exactly the same as that in section 186(d), which deals with dismissal. Unlikesection 186(2)(d), however, section 186(2)(c) does not deal with termination of employment; nordoes it state that there must be an offer of re-employment to some employees and no offer in respectof others. Furthermore, section 186(2)(d) does not refer to an agreement; section 186(2)(c) does.

Protected disclosures

Any occupational detriment an employee may suffer due to the making of a protected disclosure isan unfair labour practice.

"Occupational detriment" and "protected disclosure" are defined in the Protected Disclosures Act.

"Occupational detriment" includes, inter alia, being subjected to disciplinary action; dismissed,suspended, demoted, harassed or intimidated; transferred against one's will, refused transfer orpromotion, etc.

Once it is established that the employee has suffered an "occupational detriment," it must be provedthat the detriment was due to a protected disclosure. This means that there must be a protecteddisclosure, and that there must be causality between the disclosure and the detriment.

As far as causality is concerned, the Labour Relations Act 1995 requires that the detriment must be"on account of" the protected disclosure.

"Disclosure" is defined as "any disclosure of information regarding any conduct of an employer, oran employee of that employer, made by any employee who has reason to believe that the informationconcerned shows or tends to show one or more of the following:

"that a criminal offence has been committed, is being committed or is likely to be committed;

"that a person has failed, is failing or is likely to fail to comply with any legal obligation to which thatperson is subject;

"that a miscarriage of justice has occurred, is occurring or is likely to occur;

"that the health or safety of an individual has been, is being or is likely to be endangered;

"that the environment has been, is being or is likely to be damaged;

"unfair discrimination as contemplated in the Promotion of Equality and Prevention of UnfairDiscrimination Act [...]; or

"that any matter referred to [above] has been, is being or is likely to be deliberately concealed."

Generally, such disclosures become protected when they are made to certain persons and officesunder certain conditions:

it was made in good faith;

the employee reasonably believes that it is substantially true; and

it was not made for personal gain.

Furthermore, the employee must have reason to believe

that, if disclosure is made to the employer, he will suffer an occupational detriment;

that the information was previously disclosed, and no action was taken by the employer; or

that the matter is exceptionally serious.

Not every disclosure made by an employee will be protected. Only gradually are the courtsbeginning to consider the nature of a protected disclosure and the protection to be afforded toemployees.

In Grieve v Denel, the employee was busy preparing a report for the employer�s board ofdirectors relating to allegations of wrongdoing by a manager. The employee found himself chargedwith misconduct, suspended and told to attend a disciplinary enquiry. He approached the LabourCourt for an interdict to stop the employer�s taking disciplinary action. The court held that thedisclosures the employee intended to make were in good faith, and that, if the allegations were true,they could indicate possible criminal conduct. The disclosures were held to fall within the ambit ofprotection. The employer was ordered not to proceed with the pending disciplinary action.

In CWU v Mobile Telephone Networks, the Labour Court held that an employee�s accusation offraud by management did not constitute a protected disclosure; it was merely the employee�sopinion and was not supported by any facts.

Resolution of disputes

The procedure for resolving unfair-labour-practice disputes is similar to the dispute resolution forunfair dismissals.

First, the dispute must be referred to a bargaining council (or the Commission for Conciliation,Mediation and Arbitration if there is no bargaining council) for conciliation.

If conciliation does not succeed, the matter may be referred to arbitration.

Unlike unfair dismissal disputes, unfair-labour-practice disputes are required, by section 191 of theLabour Relations Act 1995, to be referred within ninety days of the relevant act or omission, orninety days from the date on which the employee became aware of the act or occurrence.

In terms of section 193(4) of the Labour Relations Act 1995, an arbitrator has the power todetermine any unfair labour practice dispute on "reasonable terms," which may include orderingreinstatement, re-employment or compensation (of up to twelve months' pay).

The onus is on the employee to prove all the elements of the alleged unfair labour practice inquestion.

Discrimination law

Seen generally, there are three mechanisms designed to protect the individual employee:

protection against unfair dismissal;

protection against unfair labour practices; and

the setting of minimum conditions of employment in the Basic Conditions of Employment Act.

The fourth mechanism of protection is protection against unfair discrimination.

The Labour Relations Act 1995 was the first piece of legislation to deal with discrimination in theworkplace.

The EEA also contains detailed provisions to counteract and eliminate discrimination in theworkplace.

The Constitution, with its right to equality,[17] provides an important constitutional context foremployment equity. A consideration of this constitutional provision indicates that the elimination ofdiscrimination has two bases:

formal equality, or equality in treatment; and

substantive equality, enshrined in the adoption of positive measures to empower previouslydisadvantaged groups in South African society; also known as "affirmative action."

Section 6 of the EEA contains the main thrust of the Act's prohibition against unfair discrimination.It provides that

no person may unfairly discriminate, directly or indirectly, against an employee, in any employmentpolicy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status,family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIVstatus, conscience, belief, political opinion, culture, language and birth.

It is not unfair discrimination

to take affirmative action measures consistent with the purpose of the Act; or

to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.[18]

Harassment of an employee is a form of unfair discrimination, and is prohibited on any of the abovegrounds.[19]

Furthermore, the EEA places a positive duty on every employer to take steps to promote equalopportunity in the workplace by eliminating unfair discrimination in any employment policy orpractice.[20] In certain circumstances there may be a duty on the employer to take reasonablemeasures to accommodate certain groups of employees.

In this regard, the Code of Good Practice: Key Aspects of human immunodeficiency virus(HIV)/acquired immunodeficiency syndrome (AIDS) and Employment, together with the Code ofGood Practice on the Employment of People with Disabilities, provides guidelines on how HIV/AIDSand disability should be dealt with and accommodated in the workplace.

This is the only legislative provision that mentions human immunodeficiency virus (HIV) status as aprohibited ground of discrimination. Its inclusion makes section 6 of the EEA even wider thansection 9 of the Constitution.

Section 6 protects only an "employee," but it does not speak only of an employer; it provides that "noperson" may discriminate. This is broader, and may include, inter alia, an independent pension fundor an independent medical aid scheme, or even a fellow employee.

In this regard, if an employee lodges a complaint of discrimination against another employee, andthe employer does not consult in an attempt to eliminate the discrimination, the employer may beheld liable.

The difference between discrimination and differentiation must always be kept in mind, as not alldifferentiations amount to discrimination. There may be a fair differentiation between employees onthe basis, for example, of educational qualifications or experience or seniority.

Generally, differentiation will amount to discrimination if it is based on an unacceptable reason.Even if the discrimination suffered is not listed in section 6(1) of the EEA, it would amount todiscrimination if, objectively, it is based on attributes and characteristics which have the potential toimpair the fundamental human dignity of persons as human beings, or to affect them adversely in acomparably serious manner.

Once the employee has proven that there has been a differentiation, the EEA and Constitutionprovide that it is presumed to have been unfair discrimination. The employer then bears the onus ofproving the differentiation to be fair.

Discrimination may be direct or indirect:

It is direct when it is clearly and expressly based on one or more of the grounds listed in section 6 ofthe EEA.

It is indirect when, although not express, discrimination occurs as a result of it, as when an employerimposes a gender-neutral criterion, such as height or weight, as a condition for employment, andthis criterion indirectly has a disproportionate effect on women.

Harassment

The EEA provides that harassment amounts to "a form of unfair discrimination," and as such isprohibited.[21] The most prevalent forms of harassment encountered in the workplace are

sexual harassment;

racial harassment;

sexual-orientation harassment; and

religious harassment.

Of these, sexual harassment is by far the most common.

Sexual harassment

The Code of Good Practice on Handling of Sexual Harassment Cases lists three types of conductwhich could constitute sexual harassment:

physical conduct ranging from touching to sexual assault and rape, and including a strip-search byor in the presence of the opposite sex;

verbal conduct, including innuendoes, suggestions and hints, sexual advances, comments withsexual overtones, sex-related jokes or insults, graphic comments about a person's body (made to thatperson or in her presence), enquiries about a person's sex life, and even whistling at a person or agroup of persons; and

non-verbal conduct, including gestures, indecent exposure or the display of sexually explicit picturesor objects.

Another way to define sexual harassment is to consider the effect of the harassment. Three types ofharassment may be so identified:

quid pro quo harassment, which occurs when a person is forced into surrendering to sexualadvances against her will, for fear of losing a job-related benefit;

sexual favouritism, which occurs where a person in authority rewards only those who respond to hissexual advances; and

hostile-work-environment harassment, which occurs when an abusive working environment iscreated.

The questions remain: From whose perspective does one analyse the conduct to see if it amounts tosexual harassment? What test does one apply? Does one look to the way in which the victimexperienced the situation (a subjective test), or does one try to be more objective?

A subjective test would rely exclusively on the perceptions of the victim. An obvious criticism of sucha test is that some victims may be over-sensitive, and therefore cast the net too wide.

A purely objective test, on the other hand, may be too narrow. The "reasonable man" test (which is,in terms of the common law, the generally applied "objective" test) implies reliance on male-dominated values.[citation needed]

The "reasonable victim" test seeks to establish a compromise. It takes into account the experiencesof the victim, the surrounding circumstances, and the question of fault on the part of theperpetrator.

Decided cases are inconsistent on which test should be used.

The Code of Good Practice states that sexual harassment is "unwanted conduct of a sexual nature."This implies a subjective test. It goes on to say, however, that sexual attention will only becomesexual harassment

if the behaviour is persistent;

if the recipient has makes it clear that the conduct is considered offensive; or

if the perpetrator should know that the behaviour is regarded as unacceptable.[22]

The Code thus adopts a mixture of the subjective and the objective test.

Employer liability

The EEA states that the employer may be held liable if he was made aware of the conduct but didnothing, or did not do everything that could be expected of a reasonable employer.[23]

Furthermore, the Code provides that, as a first step in expressing concern about and commitment todealing with the problem of sexual harassment, employers should issue a policy statement,stipulating the following:

All employees, job applicants and other persons who have dealings with the business have the rightto be treated with dignity.

Sexual harassment in the workplace will not be permitted or condoned.

Persons who have been or are being subjected to sexual harassment in the workplace have the rightto lodge a grievance about it. Appropriate action will be taken by the employer.[24]

The Code recommends that management be given a positive duty to implement the policy, and totake disciplinary action against employees who do not comply with it. A policy on sexual harassmentshould explain the procedure to be followed by employees who are victims of sexual harassment. Thepolicy should also state the following:

Allegations of sexual harassment will be dealt with seriously, expeditiously, sensitively andconfidentially.

Employees will be protected against victimisation and retaliation for lodging grievances, as well asfrom false accusations.[25]

Finally, the Code recommends that policy statements on sexual harassment be communicatedeffectively to all employees.[26]

Other remedies

The employee who resigns due to sexual harassment may argue that this was a constructivedismissal, which would provide grounds for finding an automatically unfair dismissal.

A victim of harassment may institute a civil claim, based on delict, against the perpetrator; she mayalso institute a claim against the employer, based on the common-law principles of vicarious liability.

Medical testing

The EEA prohibits medical testing of an employee, unless

legislation requires or permits such testing; or

the testing is justifiable.[27]

Testing may be justifiable in the light of

the medical facts;

the employment conditions;

social policy;

the fair distribution of employee benefits; or

the inherent requirements of a job.

Job applicants are also protected from medical testing.[28]

The EEA prohibits "psychological and other similar assessments" of employees, unless such anassessment

has been scientifically shown to be valid and reliable;

is applied fairly to all employees; and

is not biased against any employee or group of employees.[29]

HIV/AIDS

The EEA lists HIV status as one of the grounds on which an employee may not be discriminatedagainst.[30] South African Airways, for example, formerly had a policy of not employing HIV-positiveemployees as cabin attendants, partly because it believed that HIV-positive people could not havevaccinations,[citation needed] a requirement for international travel, and were at risk of infection,which might be transmitted to others.

In Hoffman v South African Airways, the court found that people living with HIV constitute aminority, to which society has responded with intense prejudice, stigmatization and marginalization.Society's response has forced many of them not to reveal their HIV status, for fear of such prejudice,and has thus deprived them of the help they would otherwise have received. This stigmatization thecourt considered an assault on their dignity.

The EEA is designed to counteract

the need which employers may feel to test their employees for HIV/AIDS; and

the concomitant risk of prejudice to employees who do test positive.[31]

Such testing is prohibited unless it is held to be justifiable by the Labour Court, which may imposevarious conditions on such testing, including

the provision of counselling;

the maintenance of confidentiality;

a limitation on the period of HIV-testing; and

a limitation on the category of jobs or employees in respect of which such testing is authorized.

Employers may make HIV testing available to employees as part of a "wellness" program, providedthat it takes place confidentially and on the basis of informed consent. Authorisation from theLabour Court is not required for such testing.

The EEA does not forbid anonymous testing undertaken for epidemiological purposes, or to establishthe prevalence of HIV/AIDS among the workforce.[32]

In Joy Mining Machinery v NUMSA, the court held that the following considerations should be takeninto account in determining whether or not HIV testing is justifiable:

the prohibition on unfair discrimination;

the need for such testing;

the purpose of such testing;

the medical facts;

the employment conditions;

social policy;

the fair distribution of employee benefits;

the inherent requirements of the job; and

the category or categories of jobs or employees concerned.

The court will also want to be informed about the following, which do not go to the question ofjustifiability, but which are also relevant to arriving at a proper decision:

the attitude of the employees;

the financing of the test;

the preparations for the test;

pre-test counseling;

the nature of the proposed test and procedure; and

post-test counseling.

There is also a Code of Good Practice on Key Aspects of HIV/AIDS and Employment, which providesguidelines to employers and employees on how to deal with HIV/AIDS in general.

With regard to HIV/AIDS and disability, the Code states that an employee who has become too ill towork may be dismissed on grounds of incapacity. A mental or physical impairment will constitute adisability only if it is "substantially limiting" in respect of entry into, or advancement in, employment.

Disputes about discrimination

A dispute about unfair discrimination must be referred to the Commission for Conciliation,Mediation and Arbitration for conciliation within six months of the alleged discriminatory act oromission.

Disputes of this nature may not be referred to a bargaining council.

In referring the dispute to the Commission for Conciliation, Mediation and Arbitration, the referringparty must indicate that it has made a reasonable attempt to resolve the dispute, depending on thecircumstances.

If conciliation fails, the matter may be referred to the Labour Court, unless the parties consent tothe jurisdiction of the Commission for Conciliation, Mediation and Arbitration for arbitration.

The Labour Court may make any appropriate order that is "just and equitable" in the circumstances,including compensation, damages, and orders directing the employer to take preventative steps.

Again, once the employee proves that there was discrimination, the onus shifts to the employer toprove that the discrimination was fair.

Affirmative Action

Alongside the prohibition against unfair discrimination, affirmative action is the second cornerstoneof the EEA.

According to section 2(b) of the EEA, the goal of affirmative action is to ensure the equitablerepresentation of certain groups in all occupational categories and levels in the workplace.

"Equitable representation" is not defined in the EEA, but section 42 states that it may be determinedby a consideration of

the demographic profile of the economically active population, nationally and regionally;

the pool of suitably qualified people in the designated groups from which the employer mayreasonably be expected to promote or appoint employees; and

the economic and financial factors relevant to the sector in which the employer operates.

Affirmative action is, by its very nature, a temporary measure. Once the goal of equality in theworkplace has been achieved, the reason for the measure will fall away.

A potential beneficiary of affirmative action must meet two requirements:

He must be "suitably qualified."

He must be from a designated group.[33]

Source: http://en.wikipedia.org/wiki/South_African_labour_law

free online stream

American Horror Story season 4 episode 7 streaming full episode

stream online free

movie online hd

free streaming

where can i watch American Horror Story season 4 episode 7 full episode online

watch American Horror Story season 4 episode 7 free stream

download full episode free

free streaming online

watch American Horror Story season 4 episode 7 streaming online

American Horror Story season 4 episode 7 free online full episode

free download of American Horror Story season 4 episode 7

putlocker

megashare

where can i watch American Horror Story season 4 episode 7 full episode online

full free movie

American Horror Story season 4 episode 7 free download

download American Horror Story season 4 episode 7 free

free streaming online

where can i watch American Horror Story season 4 episode 7 full episode online free

American Horror Story season 4 episode 7 watch full episode online

watch online in hd

free streaming online

American Horror Story season 4 episode 7 free downloads

free download American Horror Story season 4 episode 7 full episode

stream free American Horror Story season 4 episode 7

full episode streaming online

free download American Horror Story season 4 episode 7 full episode

streaming online free

free download

watch online full episode

American Horror Story season 4 episode 7 full episode online free

watch American Horror Story season 4 episode 7 streaming online free

full episode download hd

hd movie online

full episode free

American Horror Story season 4 episode 7 full episode online hd

full episode streaming online

streaming online for free

American Horror Story season 4 episode 7 2014 movie - official hd

full episode streaming online

download free

American Horror Story season 4 episode 7 free full episode download

megashare

where can i watch

watch American Horror Story season 4 episode 7 full episode

American Horror Story season 4 episode 7 streaming online free

full episode in hd

American Horror Story season 4 episode 7 full episode online

American Horror Story season 4 episode 7 streaming free online

American Horror Story season 4 episode 7 watch online free hd

watch American Horror Story season 4 episode 7 full episode online for free

where can i watch American Horror Story season 4 episode 7 full episode

watch x men full episode

where can i watch American Horror Story season 4 episode 7 full episode

American Horror Story season 4 episode 7 streaming free online

hd full episode download

American Horror Story season 4 episode 7 free download

American Horror Story season 4 episode 7 hd download

American Horror Story season 4 episode 7 free download

full hd movie

streaming online for free

free download of American Horror Story season 4 episode 7

free streaming online

free download American Horror Story season 4 episode 7 full episode

watch full episode American Horror Story season 4 episode 7

American Horror Story season 4 episode 7 stream online free

full episode online

American Horror Story season 4 episode 7 movie online streaming

streaming online for free

American Horror Story season 4 episode 7 free download

watch American Horror Story season 4 episode 7 streaming online

where can i watch American Horror Story season 4 episode 7 full episode

online free streaming

American Horror Story season 4 episode 7 watch online full episode

stream online free

American Horror Story season 4 episode 7 free full episode download

online stream hd

American Horror Story season 4 episode 7 full episodes free download

watch hd

free online stream

streaming online free

megashare

watch x men full episode

free download American Horror Story season 4 episode 7 full episode

movie hd

free download hd

free streaming online

watch full episode American Horror Story season 4 episode 7

American Horror Story season 4 episode 7 full episode watch

free online stream

free streaming online for free

free online streaming

movies download

where can i watch

watch online in hd

where can i watch American Horror Story season 4 episode 7 full episode online free

free download

hd movie online

free streaming online

where can i watch American Horror Story season 4 episode 7 full episode

watch American Horror Story season 4 episode 7 full episode free

American Horror Story season 4 episode 7 free movie streaming

free streaming online

free online stream

American Horror Story season 4 episode 7s past stream

full episode in hd

American Horror Story season 4 episode 7 full streaming online free

free download movie

streaming online free

American Horror Story season 4 episode 7 free hd download

free online stream

watch American Horror Story season 4 episode 7 full episode online for free

download movie x men

free full episode

American Horror Story season 4 episode 7 free full episode download

free streaming online

download free

movie hd

American Horror Story season 4 episode 7 full episode download

free full

American Horror Story season 4 episode 7 movie download

download movie American Horror Story season 4 episode 7

streaming online for free

streaming online for free

watch American Horror Story season 4 episode 7 free stream

free streaming online

free streaming online

watch American Horror Story season 4 episode 7 free streaming

American Horror Story season 4 episode 7 free download in hd

where can i watch American Horror Story season 4 episode 7 full episode online

American Horror Story season 4 episode 7 full episode online free

full episode online

online free streaming

where can i watch American Horror Story season 4 episode 7 full episode

streaming online for free

watch American Horror Story season 4 episode 7 free full episode

free streaming online

movie online hd

where can i watch American Horror Story season 4 episode 7 full episode online free

download American Horror Story season 4 episode 7 full episode free

American Horror Story season 4 episode 7 dvd stream

streaming online for free

American Horror Story season 4 episode 7 movie download in hd

download American Horror Story season 4 episode 7 online free

full episode streaming

American Horror Story season 4 episode 7 full episode online streaming

streaming online for free

American Horror Story season 4 episode 7 stream online

download free

stream movie

free download movie

watch American Horror Story season 4 episode 7 streaming online for free

American Horror Story season 4 episode 7 movie hd download

free streaming online

streaming movie

putlocker

full episode online

watch online full episode American Horror Story season 4 episode 7

watch American Horror Story season 4 episode 7 online full episode

download free American Horror Story season 4 episode 7

streaming online free

free streaming online

streaming online for free

free streaming

download free

watch American Horror Story season 4 episode 7 putlocker

full episode download hd

free download American Horror Story season 4 episode 7 full episode

download free

movie download

free streaming online for free

online streaming free

American Horror Story season 4 episode 7 free streaming movie

movie download hd

where can i watch American Horror Story season 4 episode 7 full episode

download movie free

stream online free

download free American Horror Story season 4 episode 7

watch online hd free

American Horror Story season 4 episode 7 free online download

download free

American Horror Story season 4 episode 7 full episode online watch

where can i watch American Horror Story season 4 episode 7 full episode

hd online free

watch American Horror Story season 4 episode 7 full episode online

free streaming American Horror Story season 4 episode 7

free online stream

American Horror Story season 4 episode 7 watch full episode online

watch full episode American Horror Story season 4 episode 7

download American Horror Story season 4 episode 7 movie free

putlocker

American Horror Story season 4 episode 7 movie download free

watch hd

free online stream

hd free

free download full episode

full episode streaming online

free stream

where can i watch American Horror Story season 4 episode 7 full episode

American Horror Story season 4 episode 7 download free

download American Horror Story season 4 episode 7 online free

putlocker

megashare

free online full episode

full episode in hd

where can i watch

movie download

free streaming online

full episode streaming online

American Horror Story season 4 episode 7 full episode online free

American Horror Story season 4 episode 7 full episode online streaming

streaming online for free

online full episode free

American Horror Story season 4 episode 7 free streaming online

American Horror Story season 4 episode 7 stream online free

online full episode free

free download movie

American Horror Story season 4 episode 7 movie in hd

American Horror Story season 4 episode 7 stream online

free online stream

streaming movie

free download

American Horror Story season 4 episode 7s past stream

putlocker

download movie American Horror Story season 4 episode 7

streaming online for free

download movie x men

full episode free streaming

American Horror Story season 4 episode 7 free stream

download movie

where can i watch

stream online free

American Horror Story season 4 episode 7 free download full episode

putlocker

where can i watch American Horror Story season 4 episode 7 full episode online

American Horror Story season 4 episode 7 full streaming online free

full episode in hd

watch American Horror Story season 4 episode 7 full episodes

American Horror Story season 4 episode 7 movie free download

American Horror Story season 4 episode 7 free stream

American Horror Story season 4 episode 7 free download full episode

download free

full episode hd download

stream online free

where can i watch American Horror Story season 4 episode 7 full episode online free hd

where can i watch American Horror Story season 4 episode 7 full episode online free

American Horror Story season 4 episode 7 watch online free hd

download movie free

free download movie

American Horror Story season 4 episode 7 free download

free stream

American Horror Story season 4 episode 7 download free

hd movie free download

streaming online for free

hd movie download

streaming online free

watch full

American Horror Story season 4 episode 7 full streaming online free

stream free American Horror Story season 4 episode 7

full episode streaming online

free online stream

stream American Horror Story season 4 episode 7s past

watch full episode_name_a

free streaming online for free

American Horror Story season 4 episode 7 online free full episode

American Horror Story season 4 episode 7 full streaming

free download

American Horror Story season 4 episode 7 download free

hd free online

free online stream

where can i watch American Horror Story season 4 episode 7 full episode online free hd

American Horror Story season 4 episode 7 online free full episode

watch online free putlocker

free streaming online

watch American Horror Story season 4 episode 7 free hd

American Horror Story season 4 episode 7 streaming full episode

American Horror Story season 4 episode 7 free movie stream

American Horror Story season 4 episode 7 full episode online streaming

download American Horror Story season 4 episode 7 online free

download American Horror Story season 4 episode 7 online free

free online stream

where can i watch

download movie free

watch American Horror Story season 4 episode 7 full episode hd

streaming online for free

American Horror Story season 4 episode 7 full episode online watch

hd free online

full episode streaming online

full episode online watch

stream online free

free watch American Horror Story season 4 episode 7 full episode

watch American Horror Story season 4 episode 7 free hd

American Horror Story season 4 episode 7 free movie streaming

putlocker

free online stream

watch American Horror Story season 4 episode 7 putlocker oad free