StopFearBasedManagement

Please read and understand the information on this website carefully. Please keep this information confidential

Record Everything via Video or Voice, Make sure everything is on paper. Collect as much evidence as possible

Please  note: The other party must agree to be recorded. 

You are welcome to share information that you would like to be displayed on this website to daisylabourcomplaint@gmail.com

Please use the link below or click on the CCMA Picture below to download the Android Smartphone application

https://play.google.com/store/apps/details?id=co.za.vodacom.boxfusion.ccma

You can use this app to lodge and track your complaint

You may use the following affidavit/statement templates in an attempt to protect yourself

Please ensure that any statements are written in your own words, using your own personal experiences. Any "hear say" will null and void you statement". Please use clear, direct and to the point sentences that cannot be disputed. Please make sure that what is written on the affidavit are truly your own experience, depict your true feelings, and experiences.

How to use the Affidavit document

• Go to your nearest Police station
• All word written must be your own words
• Please understand every single word on this affidavit and ensure it is true and conforms to your perception and interpretation
• If this are, not exactly how you feel, please ask the police officer for a blank affidavit form and rewrite it in your own words.
• Make sure everything written on the affidavit is your own account and that you can back it up.
• Please also write down your own FACTUAL accounts and statement in the area provided.
• Please also feel free to add another page and continue writing your statement. (a definite or clear expression of something in writing.)
• Please feel free to email this affidavit to daisylabourcomplaint@gmail.com
• Please note information here are kept confidential and will only be used with your explicit permission
• You may provide recordings that were notarised to paper and confirmed by the commissioner of oath as evidence.
• You may also attach other pieces of evidence to this
• This affidavit can be used in case of unfair dismissal and when dealing with the CCMA and Labour Dept.
• Please make sure this affidavit are explained to the 3rd party investigators in person and please ensure you get confirmation of acknowledgement that your privacy will be reserved.

 Affidavits to be used

Employment, Labour and Other information relevant to your case 

Please read and understand all of it

Labour Inspector

You may phone this number to have the business inspected. You may ask to stay anonymous to protect your identity and your job.

Thembakazi Mlindazwe

ThembakaziMl@ccma.org.za
Telephone: +27437115438 | Mobile:
Call Centre: 0861 16 16 16 | Website: https://www.ccma.org.za

021-468-5500 CapeTown,            021-941-7000 Bellville

info@ccma.org.za

DO`s and Dont`s 

• You may not be held hostage in an office while they wait for you to sign.
• It is you constitutional right not to be verbally or emotionally abused, intimidated
• You may apply for a personal protection order at your nearest court.
• Do not E-mail or phone from work telephones or computers, this will be monitored.
• The summary of the Basic Conditions of Employment Act (Act 75 of 1997) as well as the summary of the Employment Equity Act (Act 55 of 1998) MUST be displayed to all Employees
• The business may not force you to sign new labour contracts and agreements; they may also not threaten you to get rid of you in any way if you refuse
• Records all your dealings on a digital device/voice recorder. Keep this information to yourself.
• Remember, You do have rights, you cannot be forced to sign documents that will affect your future and that you are not happy with or fully agree with, you do not have to reply before speaking to the Labour Department or a legal representative.

Important Links and research to be done by yourself

• ccma.org.za

• labourguide.co.za

• https://www.upcounsel.com/how-to-prove-a-contract-was-signed-under-duress

• http://www.derebus.org.za/restraint-of-trade-duress/

• https://www.justice.gov.za/labourcourt/jdgm-lbc/2015lab/2015-J1095-15.pdf (Read and understand everything contained in this case study. make sure you read section 13 to 18 carefully)

• http://www.saflii.org/za/cases/ZASCA/2012/73.html (Read and understand this case regarding DURESS. and hot to make the same mistakes the lady made in this case)

• https://www.lawyers.com/legal-info/labor-employment-law/wrongful-termination/constructive-discharge-an-abusive-atmosphere.html

• https://www.labourguide.co.za/most-recent/2182-when-your-boss-makes-life-at-work-intolerable

• https://www.labourguide.co.za/downloads1

• https://www.labourguide.co.za/workshop/1561-constructive-dismissal/file

• https://www.forbes.com/sites/lizryan/2017/03/07/ten-unmistakable-signs-of-a-fear-based-workplace/#760d59f1e260

• Google the words "restraint of trade duress"

Labour Support Facebook Groups

• https://www.facebook.com/groups/ccmalabourlaw.za/
• https://www.facebook.com/groups/1907745179479394/
• https://www.facebook.com/groups/277229959414595/
• https://www.facebook.com/groups/2405855926168400/?ref=br_rs
• https://www.facebook.com/groups/306053476701988/?ref=br_rs
• https://www.facebook.com/groups/1426576587613231/?ref=br_rs
• https://www.facebook.com/groups/745232385861662/?ref=br_rs
• https://www.facebook.com/groups/1594528440797861/?ref=br_rs
• https://www.facebook.com/groups/2583939785184586/?ref=br_rs
• https://www.facebook.com/groups/649600681718707/?ref=br_rs
• https://www.facebook.com/groups/salera/?ref=br_rs
• https://www.facebook.com/groups/660305138054030/?ref=br_rs

Legal SA Groups

• https://www.facebook.com/groups/a1legaladvice/
• https://www.facebook.com/groups/Legaltalk/
• https://www.facebook.com/groups/305351303603746/
• https://www.facebook.com/groups/393614234172296/

Understand the following terms

Contra Bonos Mores (Google it)

• Against good morals.
• All contracts contra bonos mores, are illegal. These are reducible to several classes, including:
• 1. Incentive To Crime. A claim cannot be sustained, therefore, on a bond for compounding a crime; as, for example, a prosecution for perjury or for procuring a pardon. A distinction has been made between a contract made as a reparation for an injury to the honor of a female, and one which is to be the reward of future illicit cohabitation; the former is good and valid, and the latter is illegal.
• 2. Indecent Or Mischievous Consideration. An obligation or engagement prejudicial to the feelings of a third party, offensive to decency or morality, or which has a tendency to mischievous or pernicious consequences, is void.
• 3. Gaming. The statutes against gaming render all contracts made for the purpose of illegal gaming void.

Duress (Google it)

• Elements necessary to set aside a contract on the ground of duress were described by Corbett J in Arend & another v Astra Furnishers (Pty) Ltd, as follows:
• ‘[I]t is clear that a contract may be vitiated by duress (metus), the raison d’etre of the rule apparently being that intimidation or improper pressure renders the consent of the party subtracted to duress no true consent. . . Duress may take the form of inflicting physical violence upon the person of a contracting party or of inducing in him a fear by means of threats. Where a person seeks to set aside a contract, or resist the enforcement of a contract, on the ground of duress based on fear, the following elements must be established:
• The fear must be a reasonable one.
• It must be caused by the threat of some considerable evil to the person concerned or his family.
• It must be the threat of an imminent or inevitable evil.
• The threat or intimidation must be unlawful or contra bonos mores.
• The moral pressure used must have caused damage.
• Make sure you can prove the threat, emotional abuse, physiological abuse, victimisation, intimidation and harassment. 

Please note the following. Make sure the record the threat of dismissal

The court referred to Paragon Business Forms (Pty) Ltd v Du Preez 1994 (1) SA 434 (SE). This case dealt with a scenario where a former employee had alleged that he felt that he had no option but to sign an agreement containing a restraint of trade. The threat of dismissal was not expressed. The court there was of the opinion that there was no threat of dismissal and that the alleged fear by the respondent was illogical and unreasonable.

In Bhamjee, the SCA held that, in general, it is not unlawful to cause economic harm. The courts continue to state the requirements of duress in the traditional framework that refers to ‘a fear of some considerable evil to the person or his family.’ In Thomas the court’s discussion of the principles of duress did not include any discussion of economic duress. In the Paragon Business Forms case the court stated that, depending on the circumstances, a threat of dismissal from employment might well constitute a threat of considerable evil.

Constructive Dismissal  (intolerable work environment)

• Constructive Dismissal is a form of statutory dismissal that would be open to scrutiny by the law.  Section 186(1)(e) of the LRA defines constructive dismissal as a dismissal where "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee."  In essence the conduct of the employer gives the employee no option but to resign or repudiate the employment contract.
• You should consider carefully whether you want to go this route as to immediately withdraw from the employment contract on this basis;
• can have financial implications as money can be deducted off your salary for your failing to work your notice period;
• can be seen, if you find new employment, as a normal resignation to find better prospects and thereby precluding you from receiving legal redress;
• if you do not find employment, you could find yourself against an employer who would rather delay and fight, then to settle your lawful claim.  You could find it difficult to prove your case against such an employer.
• It is advisable to use the employer's Grievance Procedure and seek expert advice prior to repudiating your employment contract on this ground. 
• KEEP RECORDS!!! (Electronic communication, Voice recordings, Medical Evidence. Physiologist reports, Witnesses, Write affidavits daily about each event)
• Onus and proof
• Where an employee alleges that he/she has been dismissed by way of constructive dismissal, the employee bears the onus of establishing that a dismissal was unfair.   An employee is required to prove that:  
• (i) His/her situation had become so intolerable that he/she was unable to work;
• (ii) He/she would have continued working indefinitely had the employer not created the unbearable situation;
• (iii) He/she resigned because she did not believe that the employer would reform or abandon the pattern of creating an unbearable work environment.
• (iiii) Misuse of warnings 
• Proving You Were Forced to Quit
• To prove a claim of constructive discharge, you generally have to show all of the following:
• You were subjected to illegal working conditions or treatment at work (such as sexual harassment or retaliation for complaining of workplace safety violations).
• You complained to your supervisor, boss, or human resources department, but the mistreatment continued.
• The mistreatment was so intolerable that any reasonable employee would quit rather than continue to work in that environment.
• You quit because of the mistreatment.
• Discrimination and harassment. If you quit because you were being discriminated against or harassed due to a protected characteristic (such as your race or religion), you have a wrongful termination claim. (See Discrimination and Harassment in the Workplace for more information)
• Retaliation. If your employer forces you to quit because you complained about illegal workplace behavior (such as discrimination, harassment, failure to pay overtime, and so on), you have grounds for a lawsuit. The same is true if your employer pushes you out because you exercised your legal rights, such as your right to take time off work under the Family and Medical Leave Act, your right to join a union or discuss union matters with other employees, or your right to refuse to work in dangerous conditions.
• Breach of contract. If you have an employment contract stating you may be fired only for good cause, and your employer forces you to quit, you can sue your employer for not honoring the contract.
• Constructive dismissal on transfer/sale of business
• The law provided for the automatic transfer of contracts of employment when the whole or part of a business is transferred as a going concern from one employer to another. If an employee whose contract of employment is transferred with substantially less favourable conditions or circumstances of work, this would constitute a constructive dismissal. The employee will have to prove that the conditions or circumstances offered by the new employer are substantially different and not just minor.  
•  
• DISPUTES
• Disputes over a possible constructive dismissal  must be referred immediately to the CCMA/ Bargaining Council.  Should you need assistance, call Labour Protect on 0860 522687 and you will be automatically routed to the nearest labour expert on the network... 

While there was no proverbial gun to the first
respondens head, the table on which the restraint of trade was signed leaned
heavily against her.

The term “intolerable work environment” does exist.  Especially if it were never like this. Google it. If you were happy for many years and are now feeling depressed, victimised, intimidated and threatened. You could be explaining abuse and efforts to create a intolerable workplace 

Share this with people you trust only!

A Labour union can help. Be a part of one. You have the right to be associated with a labour union

Here is a contact if you are interested in joining a union

• Adele Fouche
• Dienssentrum Agent
• Solidariteit Hoofkantoor
  Tel.: 012 644 4372

• What is Section 23 of the Constitution?
• Section 23 (1) of the constitution provides that "everyone has the right to fair labour practices". ... It provides that "A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person".
•  
• Human dignity

1. Everyone has inherent dignity and the right to have their dignity respected and protected.

• Life 11. Everyone has the right to life.
• Freedom and security of the person

1. (1) Everyone has the right to freedom and security of the person, which includes the right—

• (a) not to be deprived of freedom arbitrarily or without just cause;
• (b) not to be detained without trial;
• (c) to be free from all forms of violence from either public or private sources;
• (d) not to be tortured in any way; and
• (e) not to be treated or punished in a cruel, inhuman or degrading way.
• (2) Everyone has the right to bodily and psychological integrity, which includes the right—
• (a) to make decisions concerning reproduction;
• (b) to security in and control over their body; and
• (c) not to be subjected to medical or scientific experiments without their informed consent.

• Privacy

1. Everyone has the right to privacy, which includes the right not to have—

• (a) their person or home searched;
• (b) their property searched;
• (c) their possessions seized; or
• (d) the privacy of their communications infringed.
•  Please focus on studying all the material and articles on labourguide.co.za and http://www.labour.gov.za/documentcenter
•  The LAC ultimately found that the true question that must be determined is one of causation and the usual test for determining the reason for the dismissal must be utilised:
•  “[68] Hence, the essential inquiry under section 187(1)(c) of the LRA is whether the reason for the dismissal is the refusal to accept the proposed changes to employment. The test for determining the true reason is that laid down in SA Chemical Workers Union v Afrox Ltd. The court must determine factual causation by asking whether the dismissal would have occurred if the employees had not refused the demand. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, as in this case, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such refusal was the main, dominant, proximate or most likely cause of the dismissal.”
•  After considering the facts, the court found that the purpose of Aveng making the proposal was not to gain any advantage in wage bargaining, but was rather to restructure for operational reasons to ensure Aveng’s long-term survival. The employee’s rejection of the proposal necessitated the dismissal due to operational requirements. The dominant or proximate cause for the dismissals therefore was Aveng’s operational requirements.
• Comment
• What is clear from the judgment is that an employer, in the context of a retrenchment exercise at least, may dismiss employees for refusing to accept a change to terms and conditions of employment, provided of course that the employer can demonstrate that there is a genuine operational need to change terms and conditions of employment; that there is no reasonable alternative to dismissal; and that a fair consultation process has been followed.

 More Logical Information 

You are not obliged to accept a unilateral change to the employment agreement.
I would NEVER sign that document in any event as the scope of the definitions are already so broad, you'll basically be prevented from working with ANY supplier in the country for the duration of the RoT.
You should also make sure there are no changes made to definitions in addition to any actual contents of the contract as a change in the definition can materially alter the contract even if there are no actual changes.
In this case, what is immediately evident is that, even if a RoT change is rejected, but the rest is accepted, the definitions affect the change anyway and makes it literally impossible for the employee to do business with basically anyone in the country (they mention "potential" which can literally include every single person and business in the country).
There is no way in this life or the next that I would sign ANY RoT clause in this contract, I would not even sign this as an addendum to the previous contract without the altered RoT clause as the definitions already broaden the scope of the RoT so much that you can literally, in terms of the interpretation of this contract, not work for anyone or do business with anyone in the country for the period of the RoT.
This RoT is actually unreasonably vague and broad and and scope and duration is unreasonable, however, this would not necessarily void it in court and a court could choose to enforce it.
If you resign there, you're basically taking a holiday for however long the RoT period is.

There are situations where employers use unilateral changes to force resignation of employees, however this does not seem to be the case here (the resignation usually has to do with a reduction in wages).
Forcing an employee to sign a unilateral change is unfair labour practice and can be contested i.t.o. the Labour Relations Act. You can also approach the Department of Labour and/or the CCMA if you are prejudiced because of your refusal to sign a contract with a unilateral change that materially affect the agreement.
Arguably, any time an employer makes a change to a contract that limits or influences the employee's constitutional right to earn an income in their chosen profession, it is material, especially if the employer is not prepared to offer the employee a restraint of trade payment or some form of compensation for the employee's sacrifice when no longer in the employ of the employer.
I personally hate RoTs, competition clauses and the like because in 99% of the cases they are unnecessary and only benefit the employer. There is no upside for an employee in signing a RoT whilst the employer derives the full benefit from it (including the ability to "blackmail" employees into staying, even under unfavourable circumstances, because they cannot earn an income elsewhere for a period after resignation).
A confidentiality agreement is sufficient in 99% of cases to protect the employer w.r.t. their business, operations and goodwill.
The attorneys that drafted this contract has made it sufficiently robust that the employee can basically not perform any work, in any industry whatsoever for the period of the RoT as evidenced by the wording of the definitions.
A "potential" customer or supplier is entirely unfair as the term literally includes any person or company, regardless of their industry or business. It can be argued that any person or company can be a "potential" supplier or client, as "potential" indicates there is no actual connection between the employer and the supplier/customer at the time that the employee leaves the employer. If there isn't any current or pending affiliation between the employer and another party, the employer cannot claim "ownership" of the relationship as the relationship does not exist.
I am relatively certain this RoT will not withstand scrutiny by a court, as it is obviously too broad, vague and restrictive, but it can still be enforced until a court has ruled on the matter. This can take years and cost thousands of rands to contest. There is also the other downside that the employee will not be able to get a reference from the current employer without the new employer finding out about the RoT.
Employers tend to stay away from employees that are subject to RoTs because they cannot legally employ them without exposing themselves to possible liability, and the employee will also have limited use of there is such a broad restriction on the persons they are allowed to deal with for the new employer.
If there is prejudice, I would suggest you contact the DoL and/or CCMA and get them involved as soon as possible to avoid victimisation
You are also within your rights to record any conversations in this regard (as long as you are party to the conversation) and keep this for evidence, should it be required later.

A crucial part of any RoT defence as the onus of proof lies with the employer to prove they indeed have a protectable interest as part of their case. If this is conceded by the employee, it removes that part of the defence of the employee completely and may cause the RoT to succeed regardless of other aspects and also regardless of whether an actual protectable interest exists or not

DO NOT SIGN A RESTRAINT OF TRADECOMPETITION CLAUSE!!! EVER!!!
If your employer wants you to sign a ROT or Competition clause, they can negotiate that they will pay you a restraint of trade payment (either lump sum or monthly) for the duration that the restraint remains in effect at your current Cost to Company rate.
If they are not prepared to pay him not to work, they are not that concerned about him entering the market and working for a competing firm or himself.
He can sign a confidentiality agreement prohibiting him from divulging proprietary information or trade secrets, or pursuing their customers. That will serve to protect the interests of the employer.
ROTs are becoming increasingly common and some employers use it to blackmail employees into staying, even under unfavourable circumstances.
As far as procedure goes, he does not have to sign for a unilateral change of the employment agreement and can also not be penalised for refusing to sign a document that gives all the benefit to the employer and none to him.
I would strongly advise against signing this contract.
Yes, the ROT can be overturned by a court and it may be unlawful or unfair, but for that to happen the case first has to go to a court. This process can take anywhere from weeks to months to years. Often in these cases the restraint has already lapsed by the time the case is decided or appealed and the defendant will incur substantial costs.
There is also ALWAYS the possibility that a court will rule that the contract should be upheld in the public interest (i.e. people should be bound by contracts willingly entered into).
I will personally NEVER sign a RoT or a competition clause unless my employer agrees to terms that are at least equally favourable to me (i.e. ROT payment).

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