Employment Law Updates

Updated: Jun 22

Some of the issues and cases featured in recent editions of the Lexinfo Employment Law Alert include the following:

Assault of Employee at Workplace during Labour Protest: Churchill v Premier of Mpumalanga and Another (889/2019) [2021] ZASCA 16; [2021] 2 All SA 323 (SCA); (2021) 42 ILJ 978 (4 March 2021)

In this matter, the employee was assaulted by demonstrators during a labour protest at her workplace. Churchill was physically injured and suffered post-traumatic stress as a result. She sued her employers alleging that her assault was caused by the employer’s negligence in failing to take the necessary steps to ensure her safety. The judgment is available at: http://www.saflii.org/za/cases/ZASCA/2021/16.pdf

The judgment was summarised as follows:

“Summary: Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) – plaintiff mistreated and injured in the course of a protest by trade union members on premises where she was employed – whether her injuries an accident as defined in s 1 of COIDA – whether accident arising out of and in the course of her employment – whether liability of employer excluded by s 35 of COIDA.”

The court found that “… that there is no bright line test and the enquiry is always whether the statutory requirement that the accident arose out of the person's employment, as well as in the course of that employment, is satisfied. The court must analyse the facts closely to determine whether on balance the accident arose out of the person's employment. And in the last resort an employer seeking to rely on s 35 to avoid liability bears the onus of satisfying the court that the accident arose out of the claimant's employment. In this case the only connection between the incident and Ms Churchill's employment was that she was at work at the time. The incident bore no relation to her duties and was the result of misplaced anger directed at her because of a misunderstanding. She was not assaulted because of the position she held, or because of anything she had done in carrying out her duties, or for any reason related to the protest action that took place that day. She was assaulted because one individual mistakenly thought she had sworn at him and he, together with others, responded by assaulting and humiliating her. In my opinion her injuries did not arise out of her employment.”

The judgment was discussed by the following articles:

1. Abader, Naa’ilah and Rogers, Pareen. It was an accident, but who is liable? - 2021 Mar 16 ENSafrica

2. Grogan, John. Wrong place wrong time. – Labour Law Sibergramme Issue 7 of 2021 (available via subscription only - Contact Siber Ink Publishers at subs@siberink.co.za or 076 043 3226.)

3. Leppan, Fiona and Petla, Mayson. Who is liable? COIDA and injuries not incidental to performance of employee’s duties. – 2021 Mar 15 Cliffe Dekker Hofmeyr

4. Naik, Alishia and Dias, Jordan. Churchill v Premier, Mpumalanga (889/2019) [2021] ZASCA 16 (4 March 2021).

Guidelines on Balloting for Strikes or Lockouts issued in terms of Section 95(9) of the Labour Relations Act 6 of 1995 published in RGN 1397, GG 42121 dated 19 December 2018 set aside.

The Guidelines on Balloting for Strikes or Lockouts issued in terms of Section 95 (9) of the Labour Relations Act 6 of 1995 published in RGN 1397, GG 42121 dated 19 December 2018 was set aside by the Northern Gauteng High Court in Association of Mine Workers and Construction Union v Minister of Employment and Labour (78915/2019) [2021] ZAGPPHC 215 (6 April 2021). The judgment was discussed by Bongani Masuku and Kananelo, Sikhakhane (Cliffe Dekker Hofmeyr) in Let the people strike! Court guides State on the nature of guidelines. ­

Covid-19 Employment Related Issues

A new consolidated direction on occupational health and safety measures in certain workplaces was published in terms of the Disaster Management Act 57 of 2002 on 11 June 2021 under RGN499 in GG 44700. The direction provides guidelines for mandatory vaccination.

The judgment relating to the employee dismissed for reporting to work with COVID-19, Eskort Limited v Stuurman Mogotsi and Others (JR1644/20) [2021] ZALCJHB 53 (28 March 2021), was discussed by the following articles:

1. Botes, Johan. Employee fairly dismissed for coming to work COVID-19 positive. - 2021 May 6 Baker McKenzie

2. Bux, Mehnaaz; Johnson, Shane and Atkinson, Jenna. Employee dismissed for reporting to work with COVID-19. ­ – 2021 May 7 Webber Wentzel

3. King, Lisa-Anne. A COVID ‘escorted’ dismissal. – 2021 May 12 Fluxmans

Dealing with employees who refuse to wear a mask was discussed by Lauren Salt and Matlhatsi Ntlhoro in A legal perspective on dealing with employees who refuse to mask up.

Draft Amendments to the Occupational Health and Safety Act

The Draft Occupational Health and Safety Amendment Bill was gazetted on 14 May 2021. Comments are due by 31 July 2021 (see RGN447 GG 44610 p3 21May2021).

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