Religious discrimination in the workplace
Another warning to employers to pro-actively avoid any form of unfair discrimination comes from a Labour Court’s award of compensation to an employee found to have been discriminated against because of her religion.
Discrimination and automatic unfairness:
The Labour Relations Act (LRA) renders dismissal automatically unfair if the reason for dismissal is – amongst others – discrimination, direct or indirect, “on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”
However “a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job”.
Forced to work on the Sabbath:
- A company manager refused to participate in stock-taking on Saturdays because as a Seventh-day Adventist she was unable to work on a “Sabbath” (Friday sunset to Saturday sunset).
- She had however participated in stock-taking on other days, she had worked overtime outside the Sabbath, and her employer was generally satisfied with her work.
- A senior manager had been derogatory in public about her religious affiliation.
- Although her contract of employment obliged her to work overtime as and when necessary, it viagra belgique did not specify that stock-takes were scheduled for Saturdays nor that she was to work overtime on Saturdays.
She was awarded compensation of R60,000 for unfair discrimination, the Court dismissing the employer’s defences that the dismissal was based on incapacity rather than religious discrimination, that Saturday stock-takes were an essential requirement of the job itself, and that the employee’s dignity had not been impaired because the senior manager’s abuse was a once-off event.
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Should I Hire an Experienced Defense Attorney?
Criminal defense attorneys represent people who have a lawsuit filed against them or are charged with criminal conduct. We focus our practice on criminal defense in the Fresno area, so we often know the prosecutors involved, can get negotiations concessions that other attorneys may not have access to.
Baby boomer: at what age must you retire?
Employers need to be particularly on their guard for cases in which a workplace dismissal is automatically unfair. Our courts take a particularly dim view of discrimination cases falling into this category. Age discrimination is one such instance, and an employer faced with such a claim can defend it only by proving (the onus is on the employer) that the employee has reached “the normal or agreed retirement age for persons employed in that capacity”.
With “Baby Boomers” (people born between 1946 and 1964) now retiring in record numbers, expect to see a spike in disputes and litigation over retirement issues. A recent Labour Court decision illustrates just how costly any mistake in this regard is likely to be for the employer.
Forced to retire at 63, awarded nearly R1.3m:
- An employee of an informally-run, family oriented business believed his agreed retirement age to be 65, although this was not specified in his contract of employment, and the business had no staff manual
- The business was sold twice, each time to larger corporations with more formal policies in place
- The employee refused to sign a new employment contract specifying an agreed retirement age of 60, saying it would be difficult to find new work at that age
- When he was forced to retire on turning 63, he approached the Labour Court for assistance, asking for 2 years’ remuneration as compensation in terms of the LRA (Labour Relations Act) and another 2 years’ remuneration as damages for violation of the EEA (Employment Equity Act)
- The employer defended this claim on the basis that retirement age for employees was governed by its standard retirement policy which set retirement age at 63 (previously 60)
- On the facts however it was unable to prove this defence, and the Court found the dismissal to be unfair and awarded the employee compensation of R1,283,760 (16 months’ remuneration).
- Note that the Court accepted that the employer had acted in good faith, genuinely believing that it was entitled to apply the standard retirement policy in the absence of a written agreement to another retirement age. Had the employer acted in bad faith, the Court would doubtless have made a much higher award – and whilst claims for automatically unfair dismissal in terms of the LRA are capped at 24 months’ remuneration, EEA awards have no such limit.
Employers: your essential action plan
- No matter how small or informally-run your business may be, have all new employees sign written employment contracts specifying a compulsory retirement age
- If your existing employment contracts don’t stipulate a retirement age, remedy that now. Note that this must be a matter for negotiation; you cannot unilaterally impose new terms like these on employees.
Employees: fight any form of discrimination
You have strong legal protection from all forms of unfair discrimination, direct or indirect, “on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”
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Demolish or go to jail” developer in the doghouse
30 days – that’s how long a property developer will spend in the local lock-up unless he demolishes illegal building works.
A deviation from plans…
- A property developer obtained municipal approval to build a house on his property
- The municipality, finding on inspection that the construction taking place deviated from the approved plans, obtained a court order forbidding him to continue
- Undaunted, the developer carried on building, ignoring notices clarifying his legal position, a direction to “cease all work forthwith” and ultimately the threat of a contempt of court order
- Hauled back to court, he tried to convince the court that, having applied for special consent to the deviation from the plan, he believed that he was entitled to continue building
- Unsurprisingly the Court was not impressed with this defence and, refusing to condone his conduct, found him guilty of contempt of court
- Commenting that the object of contempt of court proceedings is not only to vindicate the court’s honour but also to compel performance of court orders, the court sentenced the developer to 30 days, suspended for 2 years on condition that he demolishes the illegal building work within 30 days, and thereafter complies with the original order
So what do you do if your neighbour builds illegally?
Regular readers will recall the oft-repeated advice to seek legal assistance immediately you become aware of any illegal building activity in your area. Don’t delay; you need to move quickly and decisively. And once again our courts have confirmed that every municipality has “not only a statutory duty but also a moral duty to uphold the law and to see to due compliance …..” Nor will our courts tread softly when it comes to assisting municipalities in carrying out this duty
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Property agreements, an alteration could sink your sale!
“Agreement makes law” (Old legal maxim)
Although in our law most verbal contracts are binding, property sale agreements are an exception. They must be in writing and signed by the parties to be valid, the reason being that it greatly reduces the risk of confusion or dispute as to what the buyer and seller have actually agreed.
In practice https://www.cialissansordonnancefr24.com/cialis-pas-cher/ of course, the buyer’s initial offer is usually in the form of a written document which only becomes an agreement if and when signed in acceptance by the seller , and often that initial offer sparks negotiation, usually over price or other important terms, with the result that sale agreements are frequently amended both before and after signature.
A recent High Court case shows once again how vital it is to ensure that any such amendments have actually been agreed to by both seller and buyer.
An offer “accepted” – or was it?
- A buyer offered R6.3m for a property
- The seller signed the Offer to Purchase in “acceptance”, but conditionally, with changes to clauses relating to inspection of the property by a Building Inspector.
- The buyer, seeing these alterations only after paying a 10% deposit, rejected them and demanded her deposit back
- When the seller refunded only part of the deposit (arguing that her acceptance of the offer had resulted in a valid and enforceable sale agreement) the buyer went to court.
The law on conditional acceptance
Ordering the seller to refund the balance of the deposit to the buyer, the Court held that:
- The seller had to prove that the buyer had agreed to the written contract “in its final form”
- Conditional acceptance of an offer amounts to either – a rejection of the offer, or a counter–offer
- When there are outstanding issues requiring further negotiation, either there is no contract at all, or a contract is formed with an understanding that the outstanding issues would be negotiated at a later stage
On the facts of this case, the seller’s alterations were material and amounted to a counter-offer which was never accepted by the buyer. There was, therefore, no sale.
Avoiding the trap
Make sure that any changes to sale documents correctly reflect your agreement, and that both parties sign or initial them in confirmation. And as always with property transactions, don’t take any chances – sign nothing without your lawyer’s advice!
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