The Minister of Employment and Labour has determined that all employees earning in excess of R241 110.59 per annum are excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the Basic Conditions of Employment Act No. 75 of 1997. This is effective from 1 March 2023. These sections provide for the following, respectively: · Ordinary hours of work · Overtime · Compressed working week · Average of hours of work · Meal intervals · Daily and weekly rest period · Pay for work on Sundays · Night work · Public holidays “Earnings” means the regular annual remuneration before deductions, i.e., income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee; provided that subsistence and transport allowances received, achievement awards, and payments for overtime worked shall not be regarded as remuneration for the purpose of calculating earnings. Download the Government Gazette on the 2023 BCEA Earnings Threshold here: BCEA Earnings Threshold 2023 For more information and assistance with your current or upcoming B-BBEE verification, kindly contact your regional LabourNet office. 0861 LABNET (0861 522638). Not yet a LabourNet client, but would like to know more about our service and products? Email us: support@labournet.com

INCAPACITY Incapacity in labour law is the non-blameworthy breach of performance standards, i.e. the employee is unable to cope with the work due to ill-health, a lack of performance in terms of intentional or negligent under-performance, or incapacity due to operational reasons. 1) INCAPACITY - MEDICAL BOARDING DUE TO ILL-HEALTH Medical boarding is the inability of an employee to work according to the requirements of his/her job as a result of ill-health or injury. This is also known as “no fault dismissals” as the employee is not to blame for such a dismissal. When employees are no longer able to carry out their employment obligations due to the above, and alternative work arrangements are not feasible, they may be eligible for medical boarding. An employer intending to dismiss an employee due to incapacity must do so in accordance with Item 10 and 11 of Schedule 8 to the Labour Relations Act, No 66 of 1995 (LRA), failing which, the fairness of such dismissal falls to be challenged. Employer duties prior to dismissal Employers must: · Investigate the extent and cause of injury/incapacity/illness (ie. nature and cause) · Establish the length of the employee’s absence from work – it is inappropriate to dismiss an employee that is only temporarily incapacitated (ie. likelihood of recovery/seriousness of injury/illness) · Provide the employee with the necessary assistance in order to perform his/her duties · If possible, accommodate the employee in a suitable position – an employee’s status and remuneration may alter (ie. alternative employment). Must be fair reason and procedure followed for dismissal If after investigation and assessment, as set out above, the employee is still unable to carry out his/her work obligations and an alternative position is not feasible, the employer may give reasonable notice to the employee and have him/her medically boarded. It is clear that an employer may only follow the dismissal route as a last resort once all reasonable alternatives have been considered and proven to be unsuccessful. In order to substantiate dismissal due to incapacity, an employer must ensure that there is a fair reason for the said dismissal and that a fair procedure has been followed in implementing the dismissal, otherwise the dismissal may result in being substantially unfair. Incapacity Hearing – Ill-Health The above means that before the employer takes the decision to dismiss an employee due to incapacity, such employer must undertake an incapacity enquiry aimed at assessing whether the employee is capable of performing their duties, be it in the position they occupied before the enquiry or in any suitable alternative position. A conclusion as to the employee's capability or otherwise can only be reached once a proper assessment of the employee's condition has been made. In considering whether or not to dismiss an employee due to ill-health, the employer must take note that a thorough assessment of the employee's impairment must be conducted and; all alternatives must be exhausted. 2.) INCAPACITY – DUE TO POOR PERFORMANCE There is no doubt that managing an employee’s performance can be one of the most challenging parts of any manager’s role. Often by the time that the organisation’s formal performance management process commences, difficult and unproductive behaviours are already entrenched and the relationship between manager and employee has deteriorated. Productivity is low and patience is in short supply. What are the reasons for Poor Performance? There are many reasons why an employee may perform poorly. Some of the common reasons include: • an employee doesn't know what is expected because goals and/or standards or workplace policies and consequences are not clear (or have not been set) • interpersonal differences • there is a mismatch between an employee's capabilities and the job they are required to undertake, or the employee does not have the knowledge or skills to do the job expected of them • an employee does not know whether they are doing a good job because there is no counselling or feedback on their performance Was it the employee’s fault that the performance standard was not met? Dismissal will probably be adjudged to be unfair if the reason for the poor performance was that: • the employer had failed to provide the employee with materials • required training had not been given • the employer’s product was not in demand or • some other reason beyond the employee’s control. Incapacity Hearing – Poor Performance If an employee's performance does not improve to an acceptable standard, termination of their employment may be an option. Employers cannot dismiss their employees in circumstances that are "harsh, unjust or unreasonable". What is harsh, unjust, or unreasonable will depend on the circumstances of each case. However, it is important to be fair to employees particularly when it comes to termination of employment. They should be given reasons for dismissal and an opportunity to respond to those reasons. Employers should not dismiss poor performers without having attended to the above requirements and without having followed proper procedure. Where the employer is at all unsure as to whether it is within its rights to dismiss a poor performer, it should first get advice from a reputable labour law expert. 3.) INCAPACITY – OPERATIONAL REASONS Section 213 of the LRA defines operational requirements as follows: ‘“Operational Requirements” means requirements based on the economic, technological, structural or similar needs of an employer.’ The substantive rationale behind operational requirements typically involves measures adopted by the employer to cut costs or improve profit or in order to restructure its business or alter the manner in which its employees work, to meet an operational imperative. Dismissals for operational requirements have been categorised as "no fault" dismissals. In other words, it is not the employee who is responsible for the termination of employment. Because retrenchment is a "no fault" dismissal and because of its human cost, the Act places particular obligations on an employer, most of which are directed toward ensuring that all possible alternatives to dismissal are explored and that the employees to be dismissed are treated fairly. The obligations placed on an employer are both procedural and substantive. The purpose of consultation is to permit the parties, in the form of a joint problem-solving exercise, to strive for consensus if that is possible. The matters on which consultation is necessary are listed in s189(2). This section requires the parties attempt to reach consensus on, amongst other things, appropriate measures to avoid dismissals. In order for this to be effective, the consultation process must commence as soon as a reduction of the workforce, through retrenchments or redundancies, is contemplated by the employer so that possible alternatives can be explored. The more urgent the need by the business to respond to the factors giving rise to any contemplated termination of employment, the more truncated the consultation process might be. Urgency may not, however, be induced by the failure to commence the consultation process as soon as a reduction of the workforce was likely. On the other hand the parties who are entitled to be consulted must meet, as soon, and as frequently as, may be reasonably practicable during the consultation process. Selection criteria that are generally accepted to be fair include length of service, skills and qualifications. Generally, the test for fair and objective criteria will be satisfied by the use of the “last in first out” (LIFO) principle. There may be instances where the LIFO principle or other criteria needs to be adapted. If an employee either accepted or unreasonably refused to accept an offer of alternative employment, the employees statutory right to severance pay is forfeited. Reasonableness is determined by a consideration of the reasonableness of the offer of alternative employment and the reasonableness of the employee’s refusal. In the first case, objective factors such as remuneration, status and job security are relevant. In the second case, the employee’s personal circumstances play a greater role. UIF – Department of Labour Employees can apply for benefits at their nearest Department of Labour if they are an employed contributor to the Unemployment Insurance Fund (UIF) and have been terminated based on Incapacity for any of these reasons.

The RR Foundation is celebrating its first birthday on 18 February 2023 . We invite you to join us online as some aspects of the evening will be streamed live. The RR Foundation was launched on the 18 February 2022 in memory of the late Rajen Reddy, CEO and founder of the RR Group of companies, who passed away on the 18 February 2021. The RR Foundation will be showcasing its successes and the progress made in implementing its flagship and other projects. It will also use the opportunity to raise funds or obtain pledges for services in order to continue its effort to benefit children, youth and elders in South Africa and sub-Saharan Africa. The keynote speaker is award-winning storyteller and cultural activist Gcina Mhlophe. Speaking of her story telling, she has commented, “I tell stories that I love, and I hope my joy and enthusiasm will be infectious.” Nanda Soobben, who is an internationally acclaimed cartoonist, has offered some of his artworks to be auctioned. Much interest is expected to be shown in the opportunity to be the proud owner of one of these unique artworks, which are considered collectables. Proceeds of the auction will be used to finance the various projects either currently underway or in development. Fulling the role of auctioneer, is nationally recognised Mo Vawda. He has over five years of experience as a stand-up comedian on the biggest stages in South Africa and is sure to add some spice to the evening’s proceedings. Master of Ceremonies for the evening is the dynamic and influential Karabo Mohale, Deputy Executive Chair -The National Youth Development Agency (NYDA). There is an African proverb that says, “If you want to go fast, go alone. If you want to go far, go together”. There is ‘power in the collective’ and The RR Foundation looks forward to celebrating their successes over the past year with their various partners, invited guests as well as those people who join them online. https://www.youtube.com/live/uvB8_gzpA5k?feature=share

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Nanda Soobben, who is an internationally acclaimed cartoonist, has offered three of his unique artworks to be auctioned at the RR Foundation dinner. Soobben was the first cartoonist to be employed by a mainstream paper when the 'Daily News' took him on as a full-time editorial cartoonist in 1985. Since then, Soobben’s socio-political statements, cartoons and illustrations have been printed in newspapers such as The Post Newspaper, The Independent on Saturday, and the Sunday Tribune. His cartoons are also syndicated to major international newspapers. Soobben’s style is characterised by striking caricatures with intricate hatching, closely cropped to fill most of the frame, and punctuated by bold statements emblazoned across the remaining space. Much interest is expected to be shown, by the gala dinner guests, in the opportunity to be the proud owner of one of these artworks, which are considered collectables. Proceeds of the auction will be used to finance the various projects either currently underway or in development by the RR Foundation.

Mo Vawda will be adding spice to the RR Foundation Gala Dinner proceedings this Saturday 18 February. Vawda is a national stand-up comedian with over five years of experience on the biggest stages in South Africa. He will be fulling the role of auctioneer and is sure to perform this role in his unique style. Vawda’s varied career includes: a film director of multiple international short films; a radio personality on multiple radio stations; a scriptwriter on feature films, sitcoms, series and short skits; an actor in multiple short films, skits; a feature film and a new series filmed “the talent”. In addition, Vawda has worked as a lecturer at UKZN (MA Stats programme) and researcher on multiple projects as well as a marketing director for BBG International and DigiboyZ. Be prepared to be entertained and persuaded to buy one of Nanda Soobben’s artworks - he is an internationally acclaimed cartoonist.

SLG continues to strive to contribute to the development of a better society within the communities in which it operates. 'We thank you for believing in our learners and providing them with resources and the opportunity to succeed. The crucial teachers training and support will ensure that the science equipment is utilised optimally.' Mr P Naidoo Circuit Manager - Merewent extension. https://www.instagram.com/p/CowtVOLqs-C/?igshid=OWEyOTRmYTI%3D

FIXED-TERM CONTRACTS One of the most important changes to the Labour Relations Act (the Act), which came into effect on 1 January 2015, is the added protection afforded to employees on Fixed Term Contracts. While some employers and employees are not directly affected, the impact will be far reaching and employers are encouraged to review their current contracts and practices to ensure compliance. The relevant provisions, which are contained in a new Section 198B of the Act, are summarized below. However, to apply the correct laws respectfully, it is important to be able to firstly differentiate between Employees and Independent Contractors. Section 83A of the BCEA and Section 200(A) of the LRA creates an assumption in favour of an employee and states that a person is deemed to be an employee until otherwise proven. Section 200 (A) of the LRA provides guidelines that emphasizes on what factors deem to be an employee. In order to differentiate between a Dependent Worker status (Employees), and an Independent Worker status (Independent Contractors), the Common Law Dominant Impression Test, needs to be applied. The test questions 3 aspects: - NEAR CONCLUSIVE - Control manner / Exclusive Acquisition - PERSUASIVE - Extent of Control - RELEVANT - Labels, clauses, compliance, economic circumstances, “resonant” of. Briefly explained, A Dependent Contractor / Employee: - Is supervised - Renders personal services - Employment terminates on death, breach or expiration of the period of employment - Is provided with tools and equipment - Has duties which are dependent on the employer - Is paid a fixed salary - Is subject to the discipline of the employer - Is protected by labour legislation Independent Contractor varies as such, in that he/she: - Is equal with and not subordinate to the employer - Performs specified work or a specific result - Relationship is only terminated by breach, completion of the job or consent - Uses own tools and equipment - Hires own staff - Is paid in accordance with hours worked or on commission - Is not subject to discipline by another - Is not protected by labour legislation - Could work any hours that suit him/her - Is allowed to enter into as many contracts as he wants - Is not supervised on a day-to-day basis What is a fixed term contract? A ‘fixed term contract’ is defined in the Act as a contract of employment that terminates on – (a) the occurrence of a specified event; (b) the completion of a specified task or project; or (c) a fixed date other than an employee’s normal or agreed retirement age. Fixed term employment beyond 3 months The real impact of the amendments relates to fixed term contracts that are for a period of longer than 3 months. For such contracts to be enforceable there are three main requirements that have to be met: 1. The nature of the work must be for a limited duration or there must be some other justifiable reason for fixing the term of the contract. 2. The fixed term contract must be in writing. 3. The contract must specify the ‘justifiable reason’. A dispute would typically arise in the context of termination of employment. Should the employer fail to prove that the requirements mentioned above have been met, the employee will be regarded as having been employed on an indefinite (permanent) basis. In these circumstances there is a good chance that the employee’s services would not have been terminated for a fair reason and it is unlikely that the requirements of a fair procedure (for misconduct, incapacity or operational requirements) would have been met. The potential adverse implications for the employer should therefore be obvious. What is a justifiable reason? The Act lists examples of ‘justifiable reasons’ for employing someone for a fixed term period of longer than 3 months. The conclusions of a fixed –term contract will be justified if the employee: a) is replacing another employee who is temporarily absent from work; b) is engaged on account of a temporary increase in work volume which is not expected to endure beyond 12 months; c) is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; d) is engaged to work exclusively on a genuine and specific project that has a limited or defined duration; e) is a non-citizen who has been granted a temporary work permit; f) is engaged to perform seasonal work; g) is on an official public works scheme or similar public job creation scheme; h) is engaged in a position which is funded by an external source for a limited period; i) has reached the normal or agreed retirement age applicable in the employer’s business. The above covers the obvious situations that come to mind, but there may be other justifiable reasons that have not been listed in the Act. Fixed term employment for 3 months or less If someone is employed for 3 months or less, the provisions above do not apply. However, employees on shorter fixed term contracts should continue to enjoy the protections that existed prior to the amendments. An employer may, for example, not abuse a fixed term contract by using it as a substitute for probation. Another example is where an employee works beyond the expiry date of the contract without signing a new agreement – the employee could still successfully argue that employment has become indefinite. Furthermore, the provisions relating to a reasonable expectation’ of renewal or permanent employment may also be relied upon by these employees. Which employers and employees are excluded? Fixed term contract employees are employed for a fixed period or specific task and cannot expect to be hired on a permanent basis. The LRAA of 2013 introduced some far-reaching amendments regarding fixed term contracts workers. Such amendments do not apply to: · Employee who earn above the threshold as set out in the BCEA · b) Employers that employ less than 10 employees · c) Employers that employ less than 50 employees and whose business has been in operation for less than two years · d) An employee engaged in terms if a fixed term contract that is permitted by any statute, sectoral determination or collective agreement Additional Protections There are some additional provisions aimed at protecting employees on fixed term contracts · Firstly, a person employed on a fixed term contract for longer than 3 months, may not be treated less favorably than someone employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment. (Part-time employees also enjoy protection against unfavorable treatment). · Secondly, employees on fixed term contracts must also be given equal access to opportunities to apply for vacancies. · Thirdly, where an employee is employed on a fixed term contract exceeding 24 months, the employee would be entitled to severance pay upon termination. · Fourthly, where the employer has failed to renew a fixed term contract where there was a ‘reasonable expectation’ of such renewal (or where the employer offered to renew it on less favorable terms), the basis for an unfair dismissal claim has been extended to also include an expectation of indefinite employment. The onus to prove the expectation remains on the employee, though. Implication of changes There is likely to be a significant increase in disputes that are referred to the CCMA. These would include unfair dismissal disputes, as well as unfair labour disputes arising out of less favorable treatment of employees employed for a fixed term or part-time. Termination, Unfair Dismissal, and Consequences of Misuse of Fixed Term Contracts Fixed term contracts are as binding as any other contract, and due respect should be provided by both parties to meet the obligations on the terms and conditions of the fixed term contract. Termination of a fixed term contract prior to the stated termination date, warrants justifiable reasons that can be verified. According to sections 193 and 194 of the LRA the awards and orders that can be made against the employer for unfair dismissal are as follows: · The LRA requires the CCMA or Labour Court to reinstate the employee. This means that the employer must give the employee his/her job back and to pay the employee all remuneration calculated back to the date of the dismissal. The employer must also reinstate all the employee’s benefits retrospectively. · The LRA also permits the CCMA or Labour Court to order re-employment instead of reinstatement. This means that, while the employer must give the employee his/her job back, this will not be with back pay. · Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration. · If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration. · Such compensation is payable in addition to all other payments due to the employee. These could include notice pay, leave pay and even payment for the unexpired portion of the employee’s contract. The Labour Court and CCMA have the powers to make such additional awards by virtue of section 195 of the LRA and section 74(1) of the BCEA. Furthermore, the Labour Court has jurisdiction, in terms of section 77(3) of the BCEA to determine any matter relating to a contract of employment. For these reasons above, it is of utmost importance that the proper formulation, implementation, enforcement, and compliance in the processes involved in the take-on, on boarding and monitoring of employees on fixed term contracts, exudes diligence and assiduousness, in order to avoid financial implications and non-compliance with the law.

Article: The Witness By Jerry Barnes Some parents will be cheering on their children, whose participation in the iconic race was made possible by the Icebolethu Foundation . With all eyes on the big names at the start of the Dusi Canoe Marathon on Thursday, in Mkhambathini Valley, a couple of parents will be cheering on their children, whose participation in the iconic race was made possible by the Icebolethu Foundation. A former paddler from the Mkhambathini Valley, Nkosikhona Mabaso, who is now working for Icebolethu Foundation, run by Icebolethu Funerals, told The Witness that his company decided to join hands to help the children from the area to take part in the popular Dusi Canoe Marathon. Mabaso said the children showed interest in the sport, but their participation was hindered due to their parents’ not being able to afford the costs related to the sport. Mkhambathini Valley is a rural area and most people are unemployed. Canoeing it’s a very expensive sport. You really can’t expect parents of all these children to buy boats, running shoes, transport and other related clothes for canoeing. So we came on board to help out and here we are happy to be part of this successful story. Mabaso added that, so far, there are about 10 children from different schools around the valley that are part of Icebolethu Canoeing Development Academy, which started a few years ago. So far, there’s about 10 children on board and as part of our academy. We are all proud of them. We hope to have 30 or more in the future. Mabaso said Icebolethu Funerals is a community-based company and the project is aimed at empowering children from the community. We are saying to the children, please stay away from social ills such as drugs and alcohol. Live clean, play sport and stay out of trouble. The Dusi Marathon is set to kick of on Thursday morning, from Bishopstowe Hall.

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The RR Foundation is delighted to announce that the dynamic musical talents of Mi Casa will be entertaining their guests at its Gala Dinner on 18 February. Mi Casa consists of three members, Dr Duda (producer) and pianist, J'Something (vocalist and guitarist), and Mo-T (trumpeter). The band was formed in early 2011 in Johannesburg when all three musicians were at a night lounge and decided to perform together. They bought together their musical talents to create music that carries positive energy and which is unique, fresh and original. Their 2011 debut album, Mi Casa, featured the single These Streets , followed by Su Casa (2013) – topping no 1 spots in South Africa on release day. In 2015 came Home Sweet Home, in 2017 Famiglia, and We Made It in 2020 containing Mamela . Apart from the many #1 hit singles and too many platinum sales and awards to count, Mi Casa won Group of the year at the Global Music Awards Africa 2022.

The RR Foundation Gala dinner’s master of ceremonies is Gcina Mhlophe who is a multi-award winning author, poet, playwright, director, performer and storyteller. As Gcina Mhlophe was born in Hammarsdale, her roots are in KwaZulu-Natal. Gcina Mhlope was influenced by her grandmother’s tales when she was a child and is passionate about preserving storytelling as a means of keeping history alive and encouraging South African children to read. This passion is very much in keeping with the RR Foundation’s focus on education and its interest in storytelling as a means to add value to society. Apart from her many South African performances, Gcina Mhlope’s talent has seen her perform in South and North America, Europe, Greenland and Japan. She has performed her stories in theatres such as the Royal Albert Hall, the Kennedy Centre in the United States and she has collaborated with Ladysmith Black Mambazo on a children’s CD. Gcina Mhlope has won numerous awards including the Sony Award for Radio Drama from BBC Africa, The Fringe First Award at the Edinburgh Festival and an OBBIE Award in New York. She has received honorary doctorates from the London Open University (UK), University of KwaZulu-Natal, Pretoria University and Fort Hare.