In the News March 2023

NEW National Minimum Wage:

The national minimum wage (NMW), as well as minimum wages in some other sectors, will increase with effect from 1 March 2023.

R25,42 per hour
The minimum wage of R23,19 per hour will increase to R25,42 per hour (an increase of approximately 9,6%). The new minimum sets a new baseline across all sectors, with a few exceptions.

Farmworkers and domestic workers
The minimum rate for farm workers and domestic workers are both on par with the NMW at R25,42 per hour.

The exceptions are as follows:

  • Workers employed on Expanded Public Works: R13,97 per hour.
  • Workers with learnership agreements in terms of the Skills Development Act: See schedule in the link to the Government Gazette below

New earnings threshold:

South Africa’s new earnings threshold comes into effect from Wednesday (1 March), which will see many employees in the country lose automatic protections under the Basic Conditions of Employment Act (BCEA).

As of 1 March 2023, South Africans will see the implementation of the increased annual earnings threshold determined by the Minister of Employment and Labour. The new threshold is set to R241,110.59 a year, or approximately R20,092 a month.

Read More here.

Case Study: Zero Tolerance Policies.


Dismissal/Procedural fairness in dismissal

National Union of Metalworkers of South Africa obo Nhlabathi and another v PFG Building Glass (Pty) Ltd and others – (2023) 32 LC 1.13.4 also reported at [2023] 2 BLLR 142 (LC)

Subject matter classification:
Practice and procedure – Application for review – Disciplinary codes – “Zero-tolerance” policies – Normal mitigating factors not applying to infringers of zero-tolerance policies relating to health and safety – Only test is whether employees were aware of rule, whether it was consistently applied and whether it was justified.

Dismissal – Misconduct – D rug abuse – Employees pleading guilty to testing positive for d agga but challenging dismissal on grounds that d agga not a d rug and its use had been sanctioned by Constitutional Court – Court holding that highest court had not sanctioned breaches of disciplinary codes – Dismissal fair.
Mini Case Summary:
The applicants, both operators, were dismissed after testing positive for m arijuana. Both pleaded guilty in their disciplinary hearings, but claimed in arbitration that the respondent did not have a rule against “testing positive for d agga”, that it is not a d rug but a herb and that its use had been sanctioned by the Constitutional Court. The respondent claimed that it had a zero-tolerance rule against “mind-altering” substances because its workplace was hazardous and it was obliged to ensure that its workplace was as safe as possible. A bargaining council arbitrator upheld the dismissals.

Having noted that the test on review is whether an award is reasonable, the Court observed that the applicants’ case was premised on an interpretation of the highest court’s ruling in Minister of Justice and Constitutional Development and others v Prince and others 2018 (10) BCLR 1220 (CC), which they said had decriminalised the private use of d agga and rendered the respondent’s policy unconstitutional. The Court held that the issues relating to the decriminalisation of d agga and an employer’s right to take disciplinary action against employees who infringe their disciplinary codes must not be confused. In any event, the applicants had misconstrued the judgment on which they relied. The highest court had merely held that certain provisions relating to the private use of c annabis were inconsistent with the right to privacy, but had confirmed that d agga was a harmful d rug. The judgment certainly did not offer protection against disciplinary action for infringing rules against the use of the d rug by employees. The existence of the rule in this case had not been disputed and it was common cause that the employees had been trained in the company’s a lcohol and d rug policy. Their claim that they did not know that the policy applied to d agga was therefore without foundation.

As to the arbitrator’s finding that dismissal was too harsh, the Court held that the respondent was entitled to set its own standards and justifiably apply a zero-tolerance approach for the offence of being i ntoxicated in the workplace. A zero-tolerance rule means just that, and renders consideration that might otherwise serve as mitigating factors irrelevant: the only issues are whether the rule was consistently applied, whether the employee was aware of the rule and whether the rule was justified. The arbitrator’s finding that the code met all these requirements was reasonable.

The application was dismissed.

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