National Assembly Passes Employment Services Bill Bringing To Four Bills Passed This Year Alone
The National Assembly today adopted the Employment Services Bill which brings to four pieces of legislation submitted by the Department of Labour that have been adopted by the house this year.
The other pieces of legislation which have already passed this scrutiny are the Labour Relations, Basic Conditions of Employment and Employment Equity Amendment Bills.
All these bills were introduced in December 2010 and were giving effect to the 2009 election manifesto which promised “decent work for all workers as well as to protect the employment relationship, introduce laws to regulate contract work, subcontracting and out- sourcing, address the problem of labour broking and prohibit certain abusive practices.”
Addressing Parliament earlier today, Minister Mildred Oliphant said the Employment Services Bill sought to contribute to the government’s objectives of “more jobs, decent work and sustainable livelihoods by repositioning public employment services to play a major role in employment promotion and employment preservation and will also assist employers, workers and work seekers to adapt to changing labour market conditions.”
“The strategic objectives will be achieved through institutional arrangements that the Department will further establish to provide free services to citizens such as registration of job seekers, registering of placement opportunities, matching services, referral to education and training, and careers information. The Department will regulate private employment agencies providing similar services in the private sector to protect vulnerable workers,” she said.
In addition, the Bill allows the Minister to issue regulations requiring employers to register vacancies in specified categories of work and permits the introduction of schemes to promote the employment of work seekers, to assist employees facing retrenchments to remain in employment, and to promote the rehabilitation and re-entry into employment of employees injured on duty or who have contracted an occupational disease.
Working in consultation with the Minister of Home Affairs, the Minister can also introduce regulations providing steps to be followed before employing foreign nationals into the South African Labour Market.
More importantly, the Bill also provides a legal basis for the re-establishment and expanded scope of Supported Employment Enterprises to provide employment for people with disabilities who have long term physical, mental, intellectual or sensory impairment which hinder their full and effective participation in society on an equal basis with others. It also aims to transform this service into a training resource for specific projects like the making of school furniture and other deliverables.
Media Release: Department of Labour: 12 November 2013
Can an employee have two claims on the same set of facts?
By Aadil Patel, Director and National Practice Head, and Sihle Masango, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr
The Labour Appeal Court in Gauteng Shared Services Centre v Ditsamai (JA 44/09 of 7 December 2011) found that it would be acceptable for an employee to lodge a claim for unfair dismissal based on discrimination in the Labour Court and lodge a claim for compensation in terms of the Employment Equity Act (EEA) on the same facts.
In this case the employer had advertised several posts including a post for Forensic Auditor, which the employee was interviewed for. The employee did not successful secure a permanent post and signed a contract for the Temporary Junior Forensic Auditor post for a limited period. The employee was dismissed by the employer following the employee lodging a grievance of victimisation, bias and unfair treatment after two fellow employees secured permanent employment.
The employee referred a claim of unfair dismissal to the General Public Service Sector Bargaining Council ("the bargaining council"), where he was awarded compensation for unfair dismissal in terms of section 186 of the LRA but the arbitrator held that reinstatement was not a competent remedy. The Respondent then referred another dispute to the CCMA for unfair discrimination in terms of section 10(1) of the EEA based on the appointment of the two fellow employees in permanent positions whilst he could only secure a temporary junior position.
The employer argued the principle of res judicata in that the same set of facts was relied on for both claims. This argument was dismissed in both the court a quo and the Labour Appeal Court where Judge Davis relied on Sorghum Breweries Sorghum Breweries v International Liquor Distributors 2001 SA 232 (SCA) where Judge Olivier described the requirements for successful reliance on res judicata as "demanding the same thing on the same grounds" or "on the same cause for the same relief".
The employer failed to discharge this onus of proof and as a result the appeal was dismissed.
Cases like the above have created an untenable position whereby the effective resolution of matters in terms of the LRA is undermined and secondly, it poses a threat to employers who will remain fearful that they may be required to defend an issue on the same set of facts again after having resolved the issue on another forum. It is unfortunate that the Constitutional Court has not pronounced on the matter as yet. Academic writers Grant and Whitear-Nel¹ suggest intervention by the legislature to clear up the confusion in this area of law.
¹Grant, B and Whitear-Nel, N "Can An Employee Claim Damages As A Result Of Breach Of An Implied Contractual Term That He Will Not Be Unfairly Dismissed? South African Maritime Authority V McKenzie " 130.2 2013 SALJ 309