WELCOME TO OUR NEW ASSOCIATE

It is with great excitement that we at O'Donoghue & Marais Attorneys welcome our new associate Leme Stander to our family.

Leme studied LLB at the University of North West after which she completed her articles with Legal Aid South Africa gaining valuable criminal experience.

Leme will be launching and heading our criminal department. She is passionate about criminal procedure and loves the challenge that criminal work provides. We are honoured that she chose our firm to practice what she really loves doing and we trust that our clients, friends and community will support her in realizing her dreams.

Keeping you updated.

  

What an exciting (and busy) few months we had. 

On 3 July 2015 Mrs Grizel Marais welcomed her second child Pieter Fourie Marais into the world. 

Mrs Soné O'Donoghue is also pregnant and is expecting her first child James Michael O'Donoghue at the end of November 2015.

It is the year of the boy!

On top of all the personal blessings we also had some professional blessings. 

O'Donoghue Attorneys are now named O'Donoghue & Marais Attorneys as Mrs Grizel Marais became a partner in October 2015. We also expanded our field of service and are excited to announce that we now do conveyancing.

We also relocated to new offices in a busy area. See the photo of our new digs attached.

We are excited about the future and invite you all to come and experience our modern and cost effective approach to the law. 

Speeding - Diversions no longer offered

Up until 25 January 2015 it was common practice for offenders who exceeded the speed limit by 30km/h to be arrested, given bail and appear in court the following day where they were offered a diversion. These diversions usually took the form of a hefty amount (depending on  the speed driven) being paid to a charity organization in order to avoid criminal prosecution.

Offenders paid these diversions with a smile in order to avoid court appearances, a possible suspended license or even a criminal record.

But all has now changed. From 25 January 2015 diversions are no longer offered to offenders. This means that should you be arrested for exceeding the speed limit by 30km/h you will appear in court. Should you plea or be found guilty you may be stuck with a criminal record.

So please be warned - Stop Speeding!

Driving 90km/h in a 60km/h zone is not worth it!

 

 

New Minimum Wages: Domestic Workers:

01 December 2014 until 30 November 2015

 

Labour Minister Mildred Oliphant has approved the new wage structure for the Domestic Workers Sector.

The minimum wages for domestic workers who work more than 27 ordinary hours per week as follows:

 

• Area A (those in major metropolitan areas) is R10.95 hourly rate, R476.68 weekly rate and R2065.47 monthly rate.

• Area B (those not covered in Area A) R9.30 hourly rate, R418.32 weekly rate and R1812.57 monthly rate.

 

The Minimum wages for domestic workers from who work 27 ordinary hours per week or less is as follows:

• Area A (those in major metropolitan areas) is R12.40 hourly rate, R334.74 weekly rate and R1450.33 monthly rate.

• Area B (those not covered in Area A) R10.98 hourly rate, R296.35 weekly rate and R1284.09 monthly rate.

 

Area A:

Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality,

Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality,

Drakenstein Local Municipality,

 Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity,

Gamagara Local Municipality, George Local Municipality,

Hibiscus Coast Local Municipality,

Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality,

Langeberg Local Municipality, Lesedi Local Municipality, 

Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality,

Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality,

Oudtshoorn Local Municipality, Overstrand Local Municipality,

Plettenbergbaai Local Municipality, Potchefstroom Local Municipality,

Randfontein Local Municipality, Richtersveld Local Municipality,

Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality,

Theewaterskloof Local Municipality,

Umdoni Local Municipality, uMhlathuze Local Municipality and

Witzenberg Local Municipality.

 

Area B:

Areas not mentioned in Area A

Domestic Workers and Ocupational Injuries & Diseases

COIDA Preview - Domestic Workers
Published by Lexisnexis on 2 Oct 2014
Act: Compensation for Occupatonal Injuries and Diseases Act, 130 of 1993
Proposed extension of scope

Mark's View On The Changes:

The Labour Minister, Mildred Oliphant, is planning several public hearings to review this Act, in addition to the current parliamentary review. Noteworthy is the Act's proposed applicability to domestic employees.

Those of you who employ domestic employees, should note the following:
- You, as employer, will have the legal duty of registering the employee for compensation purposes
- You will have to prepare a statement of earnings for the domestic employee, to submit to the Compensation Commissioner.
- Note the general legal duties of employees as per OHS Act Section 14, specifically, looking after their own health and safety. Any breach of this duty may affect the amount of compensation they receive, if injured
- You may be liable for up front expenses such as ambulance transport (where applicable)

Labour Workshops

 

 

WORKSHOPS

 

General Labour Law – R1500,00 p/p

BARGAINING COUNCIL AND/OR BASIC CONDITIONS OF EMPLOYMENT

 

-          WHAT IS A BARGAINING COUNCIL OR THE BCEA

-           WHO ARE EMPLOYEES

 

EMPLOYMENT CONTRACTS

 

·         Who is required to have an employment contract

·         Should a contract be in writing

·         Interpreting the contract correctly:

-       FIXED TERM CONTRACTS

-       PROBATION

-       WORKING TIME

•     Hours of work

•     Overtime work

•     Remuneration for overtime work

•     Compressed working week

•     Public holidays

-       JOB DESCRIPTIONS

-       LEAVE

-       SICK LEAVE

·         Resignations

 

TRADE UNIONS

 

·         What requirements a trade union has to satisfy to exercise rights in the workplace

·         What rights a union are entitled to

·         Recognition agreements

·         How access to the workplace work

·         How deduction of membership fees work

·         When may a union elect a shop steward

·         Rights of a shop steward

·         Paid time off work for shop stewards and union officials

·         Information to which a union is entitled to

·         How to withdraw a union’s rights.

 

 

Initiator & Disciplinary Hearings – R1500,00 p/p

 

This module focuses on various instances of misconduct in the workplace and how to handle these effectively

 

MISCONDUCT

 

·         What is substantial and procedural fairness

·         Progressive discipline

 

GATHERING INFORMATION

 

·         Interview witnesses

·         Requirements of video footage, documentation, polygraph tests, objects, breathalyser tests and circumstantial evidence to be admissible as evidence.

 

APPLYING THE INFORMATION GATHERED

·         The disciplinary code of the employer

·         Deciding what action to take.

- When to issue a warning and when to hold a disciplinary hearing

 

TAKING ACTION

 

Warnings –

·         How to issue a warning

·         Record keeping

 

Disciplinary Hearings -

·         Legal requirements of serving a notice of disciplinary hearing

·         Draw up the charges correctly

·         Rights of the accused employee have

·         Preparation for hearing

·         Procedure

·         Who has the burden of prove

·         What is the burden of prove in disciplinary hearings.

·         Opening statement

·         How to lead evidence

·         Cross-examination

·         Re-examination

·         Closing statement

·         Aggravating factors

·         Appeal

·         Documentation to issue to dismissed employees

 

 

 INCAPACITY: POOR WORK PERFORMANCE & ILL HEALTH

 

·         Procedure

·         Monitoring poor performance and health

·         Duties of employer

 

DESERTION

INTOXICATION

Retrenchment Information

We have been receiving a lot of queries regarding retrenchments. Based on these queries we decided to provide a basic guide to retrenchment in order to assist Employers in following the correct procedures and Employees in knowing their rights regarding retrenchment.

Retrenchments are known as no-fault dismissals because the employment relationship is terminated as a result of the employer’s operational requirements and not due to any fault on the part of the employee. Operational requirements include the economic, technological and structural needs of the employer which may necessitate the retrenchment of employees. In addition to the existence of operational requirements, the employer can only lawfully embark on retrenchment schemes if the retrenchment is a measure of a last resort. The employer must be able to show that there were no reasonable alternatives available to it, but retrenchment.

Be aware that this is only a basic guide and that every case of retrenchment is unique and may require professional legal assistance, should you require any assistance kindly contact us.

When an Employer is anticipating retrenchment they must firstly consider alternatives to retrenchment. Alternatives to retrenchment may include but is not limited to, transfers to other positions and/or branches, implementing short-time or implementing lay-offs. 

The Employer must formally consult all relevant parties when considering retrenchment. This includes people mentioned in the collective agreement; the workplace forum; the registered trade union of affected workers or if there is no trade union, the workers or their representatives.

Employers must give the consulting party written notice of anticipating retrenchment which must contain the following information:

o the alternatives considered by the employer and the reasons for rejecting those alternatives;

o the number of employees likely to be affected by the proposed retrenchments;

o the selection method of employees;

o the time when the retrenchments are likely to be effected;

o the severance pay proposed;

o any assistance that the employer offers the employees facing retrenchment;

o the possibility of future employment;

o the number of employees that the employer has retrenched in the preceding 12 months; and

o the date, time and place when consultations will take place.

Prior to the consultation process the employee should be afforded a reasonable time within which to consider the retrenchment notice and formulate representations and proposals. The employer must afford the employee ample opportunity during the consultation process to make representations and put forward proposals about the proposed retrenchments. The parties should investigate all possible ways of avoiding or limiting the number of retrenchments. The employer must consider and respond to the representations made by its employees and if the employer does not agree with the representations put forward, then the employer must state the reasons for disagreeing. It is highly advisable that the notice contains a scheduled date and time for consultation.

Consultation Procedure:

After the retrenchment notice is sent out the employer is obliged to consult with the affected employees or their trade union representatives. It is important that although the employer foresees the need to retrench, the employer should not prematurely make the decision to retrench a specific employee or group of employees until the consultation process is completed and the employee has been given an opportunity to be heard and make representations. This is due to the fact that the employee may put forward proposals or alternatives to retrenchment which were not considered by the employer and which may result in the retrenchment process being restructured or even cancelled, partly or entirely. The failure by employers to engage in consultations with its employees as contemplated by the Act, will undoubtedly result in the retrenchment being procedurally unfair.

The employer and the consulting parties must agree on the following:

Ways of -

1.         avoiding or minimising retrenchments; -

Employees facing retrenchment should also be cautioned that if they are offered reasonable alternative employment and they refuse such alternative employment, then the employee will forfeit their right to severance pay.

2.         changing the timing of retrenchments;

3.         reducing the effects of retrenchment;

4.         choosing which workers to retrench; and on

5.         severance pay –

Employees are entitled to (1) one week’s remuneration for each and every completed year of continuous service. Nothing prevents an employer from paying severance packages to its employees which are more favourable than the statutory prescribed minimum.

Urgently note that retrenchment in an organisation with more than 50 employees may qualify as a large scale retrenchment and the Act prescribes additional requirements in this regard. It is advised that these retrenchments are done with legal assistance.

Employees who are treated contrary to the ACT, should consult attorneys immediately as disputes over retrenchments need to be referred to the Commission for Conciliation Mediation and Arbitration (“CCMA”) within 30 days from the date of that retrenchment. In the same regard it is also imperative for employers to consult attorneys before embarking on the retrenchment process to ensure that they comply with our employment laws from the commencement and throughout the process.

 www.attorneys.co.za/odonoghue