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INCREASED BENEFITS UNDER UNEMPLOYMENT INSURANCE ACT

Through amendments to the Unemployment Insurance Act, which amendments were passed in January 2017 but have not yet come into effect, the Department of Labour intends using a portion of the surplus held in the Unemployment Insurance Fund (UIF) to expand the scope and reach of benefits available to contributors to the fund that lose their jobs.

As the increase in benefits will be paid out from the surplus in the fund, there will not be an increase in the contributions made by employers or employees to the fund (employees currently contribute 1% of their salary to the fund and employers must match that amount).

Some of the more notable changes to benefits include:

  • A period of up to a year for contributors to submit claims instead of the current six months;
  • Benefits of up to a year instead of the current eight months i.e. one day of benefit pay for every four days worked;
  • Inclusion of public servants in the UIF;
  • Inclusion of learners completing learnerships or vocational education and training programmes; and
  • Qualifying maternity leave applicants to receive a flat rate of 66% of their salary (subject to a maximum benefit of R17 712 per month) instead of a rate of 38% to 60%.

According to Makhosonke Buthelezi, UIF Director of Communication and Marketing (https://www.groundup.org.za/article/department-labour-use-its-billion-rand-surplus-extend-uif-benefits/), the Department’s systems are now “98%” ready for the changes which would have meant that an extra R7 billion would have been paid out between January 2017 and April 2018 (the UIF paid R8.47 billion in benefits in the 2016-2017 year).

For professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

LIFE PARTNERS: BEWARE THE “COMMON LAW MARRIAGE” MYTH!

   “The general rule of our law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has endured” (From a 2010 High Court judgment and still applicable)

One of the more pervasive myths in South Africa is that, if you live together for long enough as “life partners”, you have some form of legal protection because you are in a “common law marriage”.

Not so! Our law has never recognised any such concept, and you could well be left high and dry when your partner dies or leaves you. The problem is that cohabitants have none of the general legal rights and duties to each other that apply to formal marriages and civil unions. The draft Domestic Partnerships Bill, which was published in 2008 and was supposed to remedy this situation, appears to have fallen off our lawmakers’ radar.

So what should you do?

If you don’t want to get formally married or register a civil union (some customary marriages are also recognised), ask your lawyer as soon as you can for advice on –

  1. Drawing up a full “domestic partnership agreement” (often called a “cohabitation agreement”). Make sure that at the very least it regulates your legal rights and financial arrangements both
    1. During your relationship, and
    2. In the event of separation or death. Under this heading, address questions such as –
      1. How will your various assets be divided?
      2. Will you be liable/eligible for maintenance and other financial support?
      3. Whether there will be any financial adjustment between you. What happens for example if only one of you works? Or if you paid for an extension to your life partner’s house or have been paying the bond?
      4. Who will take over ongoing liabilities and contracts such as leases, bonds, medical and life policies, monthly accounts and so on?
      5. Anything else that will need to be regulated in your particular circumstances. This item is of course particularly important if there are children involved.
  2. Drawing up wills to provide for the survivor on death. Without a will, our laws of “intestacy” apply and the surviving partner has no right to inherit nor to claim maintenance from the deceased estate. Have your will professionally drafted; amateur drafting has caused many bitter disputes and litigation between potential heirs.

The risk of doing nothing

If you don’t have such an agreement and wills in place, you will have no rights of inheritance on death, and will walk away from a broken relationship with nothing but whatever you can prove to be your own separate assets. Our law reports are full of tragic cases of long-term life partners left destitute and homeless after decades of cohabitation.

If you are faced with that bleak prospect, ask your lawyer for advice on whether –

  • There are any specific rights applicable to you. In a few limited cases our laws have already addressed this issue – such as in regard to child maintenance, medical aid, income tax, estate duty, pension funds, protection from domestic violence and the like.
  • Where our laws have not yet addressed the issue of equal rights for cohabitants you may be able to convince a court to declare them unconstitutional, but that’s a long and expensive road.
  • You may also be able to prove the existence of a “universal partnership”. That can be difficult to achieve in practice, and even if you succeed there is no guarantee of anything like a 50/50 split.

Avoid all that risk, cost, delay and dispute with a comprehensive life partnership/cohabitation agreement!

Credit: LawDotNews

For professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

WHISTLEBLOWERS: WHAT IF YOUR DISCLOSURE IS FACTUALLY WRONG?

For many years now the “Whistleblower’s Act” (actually the Protected Disclosures Act or “PDA”) has been providing protection to employees who report unlawful or improper conduct by their employers or fellow employees.

Recent updates to the PDA have extended protection to independent contractors, consultants, agents and workers employed by labour brokers. There is also a new requirement for employers to put in place “internal procedures for receiving and dealing with information about improprieties”.

Reprisals against a whistleblower (in the form of any type of “occupational detriment”) will land an employer in very hot water indeed. For example if the reprisal takes the form of a dismissal, it is “automatically unfair” and that carries substantial risk such as a compensation order of up to 24 months’ salary.

A case of incompatibility or retaliation?

  • An employee of a large organisation came to believe that several of her subordinates’ positions had been re-graded to a lower grade, without their knowledge or consultation, and that this both negatively impacted on their future salaries and distorted the accuracy of the company’s employment equity report. She reported this to her immediate superiors, then to the company’s internal audit department and to senior executives, but received no feedback.
  • Out of the blue she was presented with a termination offer, and when she didn’t accept it she was summarily dismissed for “incompatibility with colleagues”.
  • Her claim for automatically unfair dismissal in terms of the PDA was rejected by the Labour Court, but on appeal to the Labour Appeal Court her claim was upheld and she was awarded compensation of 18 months’ salary, with her employer ordered to pay all legal costs.

In reaching this decision, the Court considered several important questions

  • Was the whistleblower’s disclosure made in good faith, in accordance with procedure, and based on a reasonable belief that it was substantially true? If so, the disclosure is a protected one. Importantly, said the Court, the whistleblower need not prove a factual basis for the belief “because a belief can still be reasonable even if the information turns out to be inaccurate.”
  • Was it reasonable in all the circumstances for the whistleblower to have made the disclosure? On the facts, held the Court, the whistleblower had acted reasonably and the employer’s contention that the dismissal was based on incompatibility was “nothing short of fiction and the only probability is that the appellant’s dismissal was in retaliation for her disclosure of the irregularities in the re-grading process.”

The lesson for whistleblowers

The PDA provides you with strong protections if you follow the correct procedures; just be sure you will be able to pass the tests posed by the above questions.

The lesson for employers

Don’t take action against a whistleblower just because a disclosure is factually incorrect – it is the reasonableness or not of the employee’s belief, and the “good faith” requirement, that you should concentrate on. Make sure also to have a whistleblower policy in place and to tell all your employees about it – not only is that now a legal requirement, but your business can only benefit from uncovering any improper or criminal conduct going on behind your back.

As always, with our labour laws being so complicated, and the penalties for breaching them so severe, take specific advice on your particular situation.

Credit: LawDotNews

For more information contact Tracey Mouton at Goldberg & de Villies Inc on 041 501 9800.

Attorneys, Notaries and Conveyancers

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In today’s world of techno-acceleration and competitive trends, it is easy to lose sight of the traditional values of yesteryear. At Goldberg & de Villiers Inc we offer our clients the best of both worlds: a solid reputation for personal service excellence, a flexible, contemporary approach to maximising your results and a tradition of excellence.

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