Employers are sometimes faced with misconduct but no evidence to prove it as the witnesses refuse to come forward or to testify. The common law duty to act in good faith towards the employer flies out the window and the employer is faced with the difficult decision as to whether it is going to start charging witnesses for failing to report misconduct or to come forward with information and evidence. Employers in the retail industry faces huge losses to theft or industrial espionage and the guilty party or parties are never identified although many are aware of the misconduct, but they are either sharing in the proceeds or are just not prepared to come forward with information to assist the employer in identifying the thieves.
In Foschini Group v Maidi & others (2009) 18 LAC 1.25.2; [2010] 7 BLLR 689 (LAC) five employees (the full staff compliment in that store) were charged with “failure to secure assets of the company” after substantial stock losses were detected at the clothing store where they had been employed. The employer could not prove that they were in fact stealing the stock, however they were dismissed in their absence for “Gross negligence by failing to take proper care of company property under their control resulting in a financial loss of R 207 000 as well as an irretrievable breakdown in the trust relationship. The stock losses reached a level in excess of 28% (some 1 553 items over a period of six months) which was contributed to their lack of commitment towards the company. The company conducted a thorough investigation by sending a manager to the store in question, who conducted the investigation himself, which preceded and founded his report.
The Commissioner in the arbitration proceedings (and as confirmed by the LAC) looked at various cases where the question of collective misconduct or sanction was considered. Grogan is of the view that, in the context of employees in a small store, who are unable to point to some cause for the stock loss, the species of misconduct upon which the company relies when it calls members of an entire staff to book for stock loss, although collective in nature, would be better described as ‘team misconduct. The team is responsible for maintaining the stock and in the case of ‘team misconduct’ the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible. It should be noted therefore that the principle is not that some (the innocent) must suffer because the employer cannot pin point the guilty. In this case, all are held responsible for not complying with the rule and not acting in good faith in executing their duties. It therefore lies in each employee’s individual culpability for the failure of the group to attain the performance standard set by the employer.
In Chauke & others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) [also reported at [1998] JOL 3076 (LAC), the Labour Appeal Court held that an employer, who suffered continuously under industrial sabotage perpetrated by unidentified employees, was entitled to dismiss all the employees on the shop floor where the damages occurred, on the basis that the employees must have known who the perpetrators were and failed to come forward and identify them. Again, the employees made them guilty of a special misconduct – breach of trust and duty of care towards the employer.
Although the principle in question causes problems in light of the principle of fairness in our law, Cameron JA in the Chauke case formulated two lines of justification for a fair dismissal in such circumstances. The first is where an employee, who is part of the group of perpetrators, is under a duty to assist the employer in bringing the guilty to book. The second is where an employee has or may reasonably be supposed to have information concerning the guilty but fails or refuse to disclose same. His or her failure to come forward with the information may itself amount to misconduct as the relationship between employer and employee is in its essentials one of trust and confidence, and, even at common law, conduct clearly inconsistent with that essential warranted termination of employment. The LAC found failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal.”
The learned Judge of Appeal further held that this derived justification is wide enough “to encompass those innocent of the main misconduct, but who through their silence make themselves guilty of a derivative violation of trust and confidence.
Wednesday, October 27, 2010
Tuesday, October 26, 2010
Retrenchments and Misconduct Dismissals don’t Mix
When companies suffer financial losses the ripple effect can be tsunami-like. Investors can be ruined, employees can lose jobs and heads can roll. It is normal for employers to retrench employees after serious losses have been incurred because the employer cannot afford to pay their salaries. It can also happen that those executives responsible for managing the company are disciplined for allowing the financial losses to occur. However, employers must be careful not to mix up the retrenchment of an executive with his/her dismissal for misconduct such as, for example, dereliction of duty.
Employers must be equally careful not to discipline executives for ulterior motives. For example, where the board of directors is under pressure from shareholders to explain the company’s losses they may look for scapegoats in order to relieve this pressure.
Often therefore, the CEO or MD lands on the carpet in front of the board of directors. Sometimes the accusing finger is in fact pointed in the right direction but just as often the wrong head rolls because the culprits have conspired to scapegoat an easy target or someone outside the main clique.
Very frequently, by the time the scapegoat has been able to recover from the shock of the false allegations and has perhaps even been able to throw some doubt on the allegations against him/her, the damage has been done. That is:
* the culprits have closed ranks and testimony is hard to come by
* important documentary evidence has been doctored or destroyed
* the powers that be have decided that the real culprit is not expendable
* it has been agreed who will have to be sacrificed
* acrimony and backstabbing have destroyed the working relationship and the scapegoat no longer wants to stay with the company or other organisation.
Scapegoating can result not only in the unnecessary loss for the employer of key skills but can also tarnish the reputation of the employer. From the employee’s point of view his/her name will have been muddied and his/her career prospects may have been damaged. However, in certain circumstances employees can block attempts at scapegoating.
For example, in the case of Van As vs African Bank Ltd (2005, 3 BLLR 304) the employer suffered serious financial losses and hence instituted disciplinary proceedings against its Chief Executive Officer who was suspended pending a hearing. Before the hearing was convened the employer and the CEO signed a retrenchment agreement in which it was agreed that the CEO would leave the company for reasons of operational requirements. Despite this the employer decided to proceed with the disciplinary hearing.
The CEO applied to court for an order interdicting the employer from dismissing him for misconduct. He contended that:
* The employer could not discipline him after a retrenchment agreement had been concluded
* The employer was merely trying to scapegoat him for the losses incurred by the bank.
The Court found that, by entering into the retrenchment agreement the employer had waived its right to dismiss the CEO for misconduct. It ordered the employer to desist from such dismissal and to adhere to the terms of the retrenchment agreement. It also awarded costs against the employer.
The cost of this matter to the employer must have been high because not only did it have to bear its own legal costs it also had to pay those of the employee and waste the valuable time on the court case.
This could have been avoided had the employer made proper use of the appropriate experts to:
* assess the matter holistically
* investigate whether the CEO could really be blamed for the losses and whether there was sufficient proof of this
* decide whether discipline or retrenchment was most appropriate in practical terms and from a legal point of view
* help decide on a strategy that would satisfy the employer’s practical needs but at the same time avoid infringing the law.
Employers must be equally careful not to discipline executives for ulterior motives. For example, where the board of directors is under pressure from shareholders to explain the company’s losses they may look for scapegoats in order to relieve this pressure.
Often therefore, the CEO or MD lands on the carpet in front of the board of directors. Sometimes the accusing finger is in fact pointed in the right direction but just as often the wrong head rolls because the culprits have conspired to scapegoat an easy target or someone outside the main clique.
Very frequently, by the time the scapegoat has been able to recover from the shock of the false allegations and has perhaps even been able to throw some doubt on the allegations against him/her, the damage has been done. That is:
* the culprits have closed ranks and testimony is hard to come by
* important documentary evidence has been doctored or destroyed
* the powers that be have decided that the real culprit is not expendable
* it has been agreed who will have to be sacrificed
* acrimony and backstabbing have destroyed the working relationship and the scapegoat no longer wants to stay with the company or other organisation.
Scapegoating can result not only in the unnecessary loss for the employer of key skills but can also tarnish the reputation of the employer. From the employee’s point of view his/her name will have been muddied and his/her career prospects may have been damaged. However, in certain circumstances employees can block attempts at scapegoating.
For example, in the case of Van As vs African Bank Ltd (2005, 3 BLLR 304) the employer suffered serious financial losses and hence instituted disciplinary proceedings against its Chief Executive Officer who was suspended pending a hearing. Before the hearing was convened the employer and the CEO signed a retrenchment agreement in which it was agreed that the CEO would leave the company for reasons of operational requirements. Despite this the employer decided to proceed with the disciplinary hearing.
The CEO applied to court for an order interdicting the employer from dismissing him for misconduct. He contended that:
* The employer could not discipline him after a retrenchment agreement had been concluded
* The employer was merely trying to scapegoat him for the losses incurred by the bank.
The Court found that, by entering into the retrenchment agreement the employer had waived its right to dismiss the CEO for misconduct. It ordered the employer to desist from such dismissal and to adhere to the terms of the retrenchment agreement. It also awarded costs against the employer.
The cost of this matter to the employer must have been high because not only did it have to bear its own legal costs it also had to pay those of the employee and waste the valuable time on the court case.
This could have been avoided had the employer made proper use of the appropriate experts to:
* assess the matter holistically
* investigate whether the CEO could really be blamed for the losses and whether there was sufficient proof of this
* decide whether discipline or retrenchment was most appropriate in practical terms and from a legal point of view
* help decide on a strategy that would satisfy the employer’s practical needs but at the same time avoid infringing the law.
Thursday, October 21, 2010
Insubordination - Not always dismissible
The Code of Good Practice: Dismissal (the Code) serves as a guideline for all those presiding over disputes related to discipline and dismissal.
Employers would be mistaken if they were to interpret the contents of the Code too simplistically. For example, item 3(4) of the code lists some examples of offences that might merit dismissal even in the absence of prior warnings.
Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.
Despite the inclusion of “insubordination” in the Code a possible justification for dismissal employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal.
In fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even constitute misconduct!
In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot.
The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded.
However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction.
As the employee had already received a final warning for insubordination she was fired.
The employee took the matter to private arbitration and stated that that her relationship with the Pilot had always been difficult because, she believed, he might have been suspicious of female Tug Masters.
She claimed further that the Pilot’s instruction had been unreasonable. The employer denied this.
The arbitrator found, amongst other things, that:
• In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
• Decisions of Pilots as regards boarding operations are final
• The instruction given by the Pilot had been both lawful and reasonable
• However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
• According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
• Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
• While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
• Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
• Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
• The Pilot’s demeanour during the arbitration indicated that his view of female Tug Masters contributed to his attitude and all the events of the case
• The dismissal was substantively unfair
• The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.
The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case.
Employers would be mistaken if they were to interpret the contents of the Code too simplistically. For example, item 3(4) of the code lists some examples of offences that might merit dismissal even in the absence of prior warnings.
Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.
Despite the inclusion of “insubordination” in the Code a possible justification for dismissal employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal.
In fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even constitute misconduct!
In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot.
The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded.
However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction.
As the employee had already received a final warning for insubordination she was fired.
The employee took the matter to private arbitration and stated that that her relationship with the Pilot had always been difficult because, she believed, he might have been suspicious of female Tug Masters.
She claimed further that the Pilot’s instruction had been unreasonable. The employer denied this.
The arbitrator found, amongst other things, that:
• In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
• Decisions of Pilots as regards boarding operations are final
• The instruction given by the Pilot had been both lawful and reasonable
• However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
• According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
• Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
• While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
• Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
• Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
• The Pilot’s demeanour during the arbitration indicated that his view of female Tug Masters contributed to his attitude and all the events of the case
• The dismissal was substantively unfair
• The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.
The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case.
Tuesday, October 19, 2010
Extenuating Circumtances
Dont Ignore Extenuating Circumstances - Ivan Israelstam
Even when an employer finds an employee guilty of a serious offence this does not automatically entitle the employer to fire the employee.
There are numerous possible remedies for misconduct which could include:
• Dismissal – the most severe corrective action
•Demotion – provided that the employee is given the choice of dismissal or demotion
• Suspension without pay - provided that the employee is given the choice of dismissal or suspension
• A warning or final warning – which must be very carefully worded
• Training – where lack of skill/knowledge is the cause of the problem
• Treatment – for example where addiction or alcoholism is an important factor
Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:
• the nature and seriousness of the misconduct
• aggravating circumstances
• the employee’s personal circumstances
• the employee’s length of service
• the employee’s disciplinary record
• extenuating circumstances.
Extenuating circumstances are those related to the case itself that might render the misconduct less serious.
For example, where an employee refuses to obey an instruction from a manger due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction.
This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.
Where such circumstances exist it would be folly for employers to ignore them.
This is because CCMA and bargaining council arbitrators expect the level of discipline to be in line with the circumstances of the case.
Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.
For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:
• The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
• the employee had used the vehicle due to an emergency at the workplace
• this was an extenuating circumstance
• the dismissal was therefore too harsh
• the employee was to be reinstated.
In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather.
A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:
Even when an employer finds an employee guilty of a serious offence this does not automatically entitle the employer to fire the employee.
There are numerous possible remedies for misconduct which could include:
• Dismissal – the most severe corrective action
•Demotion – provided that the employee is given the choice of dismissal or demotion
• Suspension without pay - provided that the employee is given the choice of dismissal or suspension
• A warning or final warning – which must be very carefully worded
• Training – where lack of skill/knowledge is the cause of the problem
• Treatment – for example where addiction or alcoholism is an important factor
Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:
• the nature and seriousness of the misconduct
• aggravating circumstances
• the employee’s personal circumstances
• the employee’s length of service
• the employee’s disciplinary record
• extenuating circumstances.
Extenuating circumstances are those related to the case itself that might render the misconduct less serious.
For example, where an employee refuses to obey an instruction from a manger due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction.
This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.
Where such circumstances exist it would be folly for employers to ignore them.
This is because CCMA and bargaining council arbitrators expect the level of discipline to be in line with the circumstances of the case.
Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.
For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:
• The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
• the employee had used the vehicle due to an emergency at the workplace
• this was an extenuating circumstance
• the dismissal was therefore too harsh
• the employee was to be reinstated.
In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather.
A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:
Employees always arriving late at work - Are you to blame?
Most late-coming problems experienced by employers are due to the employer’s own fault. Both the principles of sound management and the Labour Relations Act (LRA) require that employers use firm, swift, fair and graduated disciplinary measures to deal with late-coming and other employee misconduct before dismissing the offenders.
In other words every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing.
The hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate.
The employer should not:
• Close a blind eye to repeated acts of late-coming
• And then, when the employer finally loses patience, lose his/her cool and fire the employee.
The employer should also not give warnings and then fail to act on them.
In the case of NCP vs SACWU (1998, 6 BALR 769) the employee was a locomotive driver who arrived late on a number of occasions. He eventually received a final warning for lateness.
Thereafter he was again, on several occasions, very late by many hours). Despite this, he was only mildly reprimanded or warned or not disciplined at all. Later, he was late yet again and was dismissed.
The arbitrator found the dismissal to be unfair. It appears that the reasons for this startling decision were:
• The employee had initially not been strongly disciplined for lateness after having received a final warning. This led the employee to believe that the final warning had no effect.
• Under these circumstances it was wrong to fire the employee who had been led to believe, by the employer’s inconsistent and confusing conduct, that lateness and repeated late-coming were not serious offences
• The employer had abdicated its duty to take appropriate corrective steps in respect of the employee’s late-coming problem
• The employer had therefore waived its right to dismiss the employee.
Unless there are compelling mitigating circumstances the next logical step after issuing a final warning is normally dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
For example, in the case of Transwerk vs SATAWU (2000, 8 BALR 993), the employee had received a final warning for late coming. He arrived late for work again and was dismissed on the grounds of his final warning.
The arbitrator found the dismissal to be too harsh and reinstated the employee.
In other words every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing.
The hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate.
The employer should not:
• Close a blind eye to repeated acts of late-coming
• And then, when the employer finally loses patience, lose his/her cool and fire the employee.
The employer should also not give warnings and then fail to act on them.
In the case of NCP vs SACWU (1998, 6 BALR 769) the employee was a locomotive driver who arrived late on a number of occasions. He eventually received a final warning for lateness.
Thereafter he was again, on several occasions, very late by many hours). Despite this, he was only mildly reprimanded or warned or not disciplined at all. Later, he was late yet again and was dismissed.
The arbitrator found the dismissal to be unfair. It appears that the reasons for this startling decision were:
• The employee had initially not been strongly disciplined for lateness after having received a final warning. This led the employee to believe that the final warning had no effect.
• Under these circumstances it was wrong to fire the employee who had been led to believe, by the employer’s inconsistent and confusing conduct, that lateness and repeated late-coming were not serious offences
• The employer had abdicated its duty to take appropriate corrective steps in respect of the employee’s late-coming problem
• The employer had therefore waived its right to dismiss the employee.
Unless there are compelling mitigating circumstances the next logical step after issuing a final warning is normally dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
For example, in the case of Transwerk vs SATAWU (2000, 8 BALR 993), the employee had received a final warning for late coming. He arrived late for work again and was dismissed on the grounds of his final warning.
The arbitrator found the dismissal to be too harsh and reinstated the employee.
THOSE 24-HOUR NOTICES -
PUBLISHED BY SA LABOUR GUIDE
Written by Advocate Estelle Botha
Many an employer has had to contend with the 24-hour notice problem. What usually happens is an employee is appointed and then trained at a cost to the employer.
A contract of employment is signed which normally has a clause stating that a month’s notice should be given at termination of the contract by either party.
Then one morning the employee gives notice, in writing or not, and they want to leave the next day.
Now the employer sits with a number of problems of which at least one is that they must replace the employee.
The greater frustration is that all that well spent money on training and development is down the proverbial drain. What now?
Let us look at the Basic Conditions of Employment Act of 1997 to ensure what the legislature had in mind. Section 37 deals with notice periods at termination and states:
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-
(a)one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c)four weeks, if the employee-
(i)has been employed for one year or more; or
(ii)is a farm worker or domestic worker who has been employed for more than six months.
These statutory stipulations are all very well – but where does this leave the employer when the employee has simply walked out on 24 hours notice ?
In NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2007) 28 ILJ 1223 (LAC) the union employed an employee who left them without giving notice
They wanted the Labour Court to determine that this was unfair labour practices perpetrated against them.
The court did not agree with this point of view.
The court confirmed that the one recourse for employers is to sue the employees under common law for breach of contract.
The legislature did not give the employer any recourse against such employees who do not honour the contracts – at least there is no recourse in terms of labour legislation
.
The option is for the employer to sue and issue summons against these employees, for any damages that the employer is able to quantify in terms of the employees breach of contract.
24 Hours Notice: Does the employee pay?
Judging by e-mails that I receive, there seems to be a new practice creeping in among employees who wish to terminate their employment contract.
In most cases employees are bound to provide the employer with 1 month written notice. Sometimes it is stipulated in the employment contract merely as 1 month or 4 weeks, and in other cases it is stipulated as 1 calendar month
.
Whatever the case, the undesirable practice that is creeping in, is that employees are ignoring this contractual requirement, and are either tendering 24 hours of notice, or in some cases are tendering the contractual notice period in writing and but then walk out and simply do not return to work
.
The employer is then left stranded without an employee to do the work in the vacated post, and the employee in fact is now in breach of contract.
It has always in the past been the practice for the employer to deduct one month salary from the final payout due to the employee, but in many cases the employee tenders 24 hours notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any
.
The question is, how illegal is this practice of the employee walking out on 24 hours notice?
The answer is that it is totally illegal - nowhere in the BCEA is their any provision allowing an employee to terminate his employment contract on 24 hours notice.
The employer must handle this in terms of breach of contract.
In order to protect themselves, employers must stipulated in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
The problem is, and especially with lower paid employees, the amount to be claimed will in many cases be far less than the amount of the legal costs incurred in the recovery, and in these cases the employer will end up by simply ignoring the matter and are losing out.
It is far wiser for the employer to protect himself in a written contract. There are those employers who never provide their employees with any form of written contract, and these employers will have a problem should the above occasion arise.
Written by Advocate Estelle Botha
Many an employer has had to contend with the 24-hour notice problem. What usually happens is an employee is appointed and then trained at a cost to the employer.
A contract of employment is signed which normally has a clause stating that a month’s notice should be given at termination of the contract by either party.
Then one morning the employee gives notice, in writing or not, and they want to leave the next day.
Now the employer sits with a number of problems of which at least one is that they must replace the employee.
The greater frustration is that all that well spent money on training and development is down the proverbial drain. What now?
Let us look at the Basic Conditions of Employment Act of 1997 to ensure what the legislature had in mind. Section 37 deals with notice periods at termination and states:
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-
(a)one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c)four weeks, if the employee-
(i)has been employed for one year or more; or
(ii)is a farm worker or domestic worker who has been employed for more than six months.
These statutory stipulations are all very well – but where does this leave the employer when the employee has simply walked out on 24 hours notice ?
In NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2007) 28 ILJ 1223 (LAC) the union employed an employee who left them without giving notice
They wanted the Labour Court to determine that this was unfair labour practices perpetrated against them.
The court did not agree with this point of view.
The court confirmed that the one recourse for employers is to sue the employees under common law for breach of contract.
The legislature did not give the employer any recourse against such employees who do not honour the contracts – at least there is no recourse in terms of labour legislation
.
The option is for the employer to sue and issue summons against these employees, for any damages that the employer is able to quantify in terms of the employees breach of contract.
24 Hours Notice: Does the employee pay?
Judging by e-mails that I receive, there seems to be a new practice creeping in among employees who wish to terminate their employment contract.
In most cases employees are bound to provide the employer with 1 month written notice. Sometimes it is stipulated in the employment contract merely as 1 month or 4 weeks, and in other cases it is stipulated as 1 calendar month
.
Whatever the case, the undesirable practice that is creeping in, is that employees are ignoring this contractual requirement, and are either tendering 24 hours of notice, or in some cases are tendering the contractual notice period in writing and but then walk out and simply do not return to work
.
The employer is then left stranded without an employee to do the work in the vacated post, and the employee in fact is now in breach of contract.
It has always in the past been the practice for the employer to deduct one month salary from the final payout due to the employee, but in many cases the employee tenders 24 hours notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any
.
The question is, how illegal is this practice of the employee walking out on 24 hours notice?
The answer is that it is totally illegal - nowhere in the BCEA is their any provision allowing an employee to terminate his employment contract on 24 hours notice.
The employer must handle this in terms of breach of contract.
In order to protect themselves, employers must stipulated in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
The problem is, and especially with lower paid employees, the amount to be claimed will in many cases be far less than the amount of the legal costs incurred in the recovery, and in these cases the employer will end up by simply ignoring the matter and are losing out.
It is far wiser for the employer to protect himself in a written contract. There are those employers who never provide their employees with any form of written contract, and these employers will have a problem should the above occasion arise.
Thursday, May 20, 2010
Unpaid Leave vs. Deduction from Salaries
We frequently receive questions from employers regarding the non-payment of employees for days that they were absent from work without leave.
Based on the provisions in section 34 of the BCEA there seems to be a misguided perception that employees must receive their full salaries at the end of the month regardless whether or not they were actually at work.
A very good example would be if an employee went on sick leave and upon return did not hand in a sick note as required by section 23 of the Basic Conditions of Employment Act; or the employee simply just did not report for duty and could not furnish any valid reasons for the unauthorized absence on that specific day.
In terms of section 20 (6) of the BCEA an employer must grant an employee, at the written request of the employee, annual leave during a period of unpaid leave.
But what happens if the employee does not have any annual leave available, do we pay the employee for that day or do we reduce the employee’s salary?
The first clue should be that the BCEA actually makes mention of unpaid leave but let us first look at section 34 of the BCEA that deals with deductions from employee’s remuneration.
Section 34:
(1) An employer may not make any deduction from an employee’s remuneration unless—
(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
Based on this section of the act employers assume that payment may not be withheld from an employee that did not work. This is not true.
Under common law, statute law and the employment contract there is an obligation on the employee to be at work and to actually work in order to be remunerated.
Let us look at Chapter 1 of the BCEA - Definitions, purpose and application of this act. In this chapter;
• remuneration means “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the state”.
• Wages means “the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week”.
• an employee is described as “any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration”.
In the Labour Relations Act “working hours” is described as “those hours during which an employee is obliged to work” and the Encarta English dictionary describes the word “work” as “paid job - paid employment at the job” and “time spent at place of employment”.
The Oxford dictionary defines “work” as “activity involving mental or physical effort done in order to achieve a result. Such activity as a means of earning income.”
Based on the provisions in section 34 of the BCEA there seems to be a misguided perception that employees must receive their full salaries at the end of the month regardless whether or not they were actually at work.
A very good example would be if an employee went on sick leave and upon return did not hand in a sick note as required by section 23 of the Basic Conditions of Employment Act; or the employee simply just did not report for duty and could not furnish any valid reasons for the unauthorized absence on that specific day.
In terms of section 20 (6) of the BCEA an employer must grant an employee, at the written request of the employee, annual leave during a period of unpaid leave.
But what happens if the employee does not have any annual leave available, do we pay the employee for that day or do we reduce the employee’s salary?
The first clue should be that the BCEA actually makes mention of unpaid leave but let us first look at section 34 of the BCEA that deals with deductions from employee’s remuneration.
Section 34:
(1) An employer may not make any deduction from an employee’s remuneration unless—
(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
Based on this section of the act employers assume that payment may not be withheld from an employee that did not work. This is not true.
Under common law, statute law and the employment contract there is an obligation on the employee to be at work and to actually work in order to be remunerated.
Let us look at Chapter 1 of the BCEA - Definitions, purpose and application of this act. In this chapter;
• remuneration means “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the state”.
• Wages means “the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week”.
• an employee is described as “any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration”.
In the Labour Relations Act “working hours” is described as “those hours during which an employee is obliged to work” and the Encarta English dictionary describes the word “work” as “paid job - paid employment at the job” and “time spent at place of employment”.
The Oxford dictionary defines “work” as “activity involving mental or physical effort done in order to achieve a result. Such activity as a means of earning income.”
Sexual Harrasment in the Workplace
Section 60 of the Employment Equity Act (EEA), in effect, provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment, the employer himself can be charged with unfair discrimination on the grounds of sexual harassment.
This suggests that, wherever an employer becomes aware of sexual harassment it should take the disciplinary steps without unnecessary delay.
For example, in the case of Christian v Colliers Properties (2005, 5 BLLR 479) a Ms Christian was appointed as a typist by the employer.
Two days after starting work, her boss asked her if she had a boyfriend and invited her to have dinner with him. He also asked her to sit on his lap and kissed her on the neck.
When she later objected to the manager's conduct he asked her whether she was "in or out".
When she said that she was "not in" he asked her why he should then allow her employment to continue. She was dismissed with two days pay and referred a sexual harassment dispute.
In a default judgment the court decided that:
• The employee had been dismissed for refusing her superior's advances.
• This constituted an automatically unfair dismissal based on sexual discrimination
• Newly appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues
The employer had to pay the employee 24 months' remuneration in compensation as well as additional damages and interest on the amounts to be paid as well as the employee's legal costs.
The above finding might lead employers to believe that, in order to protect themselves, they need to dismiss any employee found guilty of sexual harassment.
However, this is not always so. For example, in the case of SABC Ltd v Grogan (2006, 2 BLLR 207) a regional sales manager was dismissed for (among other things) sexual harassment after he had allegedly kissed a junior female colleague several times, given her love literature and had physical contact with her in his car.
This suggests that, wherever an employer becomes aware of sexual harassment it should take the disciplinary steps without unnecessary delay.
For example, in the case of Christian v Colliers Properties (2005, 5 BLLR 479) a Ms Christian was appointed as a typist by the employer.
Two days after starting work, her boss asked her if she had a boyfriend and invited her to have dinner with him. He also asked her to sit on his lap and kissed her on the neck.
When she later objected to the manager's conduct he asked her whether she was "in or out".
When she said that she was "not in" he asked her why he should then allow her employment to continue. She was dismissed with two days pay and referred a sexual harassment dispute.
In a default judgment the court decided that:
• The employee had been dismissed for refusing her superior's advances.
• This constituted an automatically unfair dismissal based on sexual discrimination
• Newly appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues
The employer had to pay the employee 24 months' remuneration in compensation as well as additional damages and interest on the amounts to be paid as well as the employee's legal costs.
The above finding might lead employers to believe that, in order to protect themselves, they need to dismiss any employee found guilty of sexual harassment.
However, this is not always so. For example, in the case of SABC Ltd v Grogan (2006, 2 BLLR 207) a regional sales manager was dismissed for (among other things) sexual harassment after he had allegedly kissed a junior female colleague several times, given her love literature and had physical contact with her in his car.
Dismissals - At the Heart of the Law!!!!
Item 92 of the CCMA's draft Guidelines: Misconduct Arbitrations makes it most important that, when the employer is contemplating the dismissal of an employee, they should be able to show that the employee's offence was so serious that it made "a continued employment relationship intolerable".
Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer's property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss.
This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
• Mitigating circumstances such as the employee's length of service, previous disciplinary record, personal circumstances and others.
• The nature of the job in that, for example, while sleeping on the job might be most serious for a security guard, it may not merit dismissal for a backroom clerk.
• Other circumstances attached to the case such as whether the security guard fell asleep because he or she had to work a double shift without a break, which could render dismissal too harsh a penalty.
In the case of Humphries & Jewel (Pty) Ltd v FEDCRAW & others (CLL Vol 15 No 10, May 2006) the Labour Appeal Court found that "The relationship of trust, mutual confidence and respect which underlies the employment relationship" were at issue.
"Unless there are facts that show that the employment relationship was not detrimentally affected by the employee's misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship."
However, the concept of "intolerability" is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation.
This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh.
They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness.
The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer from having to continue a relationship with the employee.
Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer's property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss.
This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
• Mitigating circumstances such as the employee's length of service, previous disciplinary record, personal circumstances and others.
• The nature of the job in that, for example, while sleeping on the job might be most serious for a security guard, it may not merit dismissal for a backroom clerk.
• Other circumstances attached to the case such as whether the security guard fell asleep because he or she had to work a double shift without a break, which could render dismissal too harsh a penalty.
In the case of Humphries & Jewel (Pty) Ltd v FEDCRAW & others (CLL Vol 15 No 10, May 2006) the Labour Appeal Court found that "The relationship of trust, mutual confidence and respect which underlies the employment relationship" were at issue.
"Unless there are facts that show that the employment relationship was not detrimentally affected by the employee's misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship."
However, the concept of "intolerability" is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation.
This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh.
They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness.
The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer from having to continue a relationship with the employee.
Wednesday, May 12, 2010
The definition of an employee - SA LabourGuide
Section 213 of the Labour Relations Act (LRA) provides that an employee is anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer.
This definition omits only service providers who are external and/or truly autonomous.
Section 200A of the LRA states that, unless the contrary is proven and regardless of the form of the contract a person is presumed to be an employee if any one of the following circumstances exist:
• The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person;
• The person forms part of the organisation;
• The person has worked for the other person for an average of at least 40 hours per month for the last three months;
• The person is economically dependent on the other person ;
• The person is provided with tools of trade by the other person; and
• The person only provides services to one person.
It could be argued that anyone doing work as a means of receiving training in their trade or profession would be defined as a learner and not as an employee.
For example, the Skills Development Act and the Manpower Training Act appear to provide for special circumstances where people are signed up for learnerships and apprenticeships purely for purposes of advancing their learning and qualifications.
Work contracts that clearly fall under the jurisdiction of either of these two acts may well not qualify as employment contracts.
In Mokone v Highveld Steel and Vanadium (2005, 12 BALR 5) the arbitrator found that the applicant had done some work for the respondent while he was completing studies financed by the respondent.
Despite this the arbitrator found that the applicant had not been an employee in terms of the LRA and that the council therefore did not have jurisdiction to hear the case.
However, in the case of Andreanis v the Department of Health (2006, 5 BALR 461) Ms Andreanis was appointed as an intern at a state hospital. Four years later she was told to vacate her post as her internship period had come to an end.
She claimed unfair dismissal as she believed that she was an employee and that the end of her internship was irrelevant to her employment status.
This definition omits only service providers who are external and/or truly autonomous.
Section 200A of the LRA states that, unless the contrary is proven and regardless of the form of the contract a person is presumed to be an employee if any one of the following circumstances exist:
• The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person;
• The person forms part of the organisation;
• The person has worked for the other person for an average of at least 40 hours per month for the last three months;
• The person is economically dependent on the other person ;
• The person is provided with tools of trade by the other person; and
• The person only provides services to one person.
It could be argued that anyone doing work as a means of receiving training in their trade or profession would be defined as a learner and not as an employee.
For example, the Skills Development Act and the Manpower Training Act appear to provide for special circumstances where people are signed up for learnerships and apprenticeships purely for purposes of advancing their learning and qualifications.
Work contracts that clearly fall under the jurisdiction of either of these two acts may well not qualify as employment contracts.
In Mokone v Highveld Steel and Vanadium (2005, 12 BALR 5) the arbitrator found that the applicant had done some work for the respondent while he was completing studies financed by the respondent.
Despite this the arbitrator found that the applicant had not been an employee in terms of the LRA and that the council therefore did not have jurisdiction to hear the case.
However, in the case of Andreanis v the Department of Health (2006, 5 BALR 461) Ms Andreanis was appointed as an intern at a state hospital. Four years later she was told to vacate her post as her internship period had come to an end.
She claimed unfair dismissal as she believed that she was an employee and that the end of her internship was irrelevant to her employment status.
Friday, May 7, 2010
Understanding Constructive Dismissals
Constructive Dismissal
Questions are often asked around constructive dismissal - what is it? Employees relate a certain situation and ask the question “can I claim constructive dismissal”? - and employers ask the question “the employee has resigned and is claiming a constructive dismissal – what do we do?”
Firstly, let us understand what it is - and it could be many things.
The basics are that constructive dismissal may be defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee - to such an extent that the employee as no other option available but to resign.”
In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), the Court referred to Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC), stating that the first test was whether, when resigning, there was no other motive for the resignation - in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct.
It went further to state that when any employee resigns and claims constructive dismissal, he is in fact stating that under the intolerable situation created by the employer, he can no longer continue to work, and has construed that the employer's behaviour amounts to a repudiation of the employment contract.
In view of the employer's repudiation, the employee terminates the contract.
In addition, in bringing such a dispute, it is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove that there was no other way of resolving the issue except for resignation.
It is not for the employer (respondent) to show that he did not introduce any intolerable condition - it is for the employee to show that he did.
There have been many referrals of constructive dismissal to the CCMA which have not succeeded - because the applicant has failed to prove the introduction of any intolerable working condition, amounting to repudiation by the employer of the employment contract.
Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessment, overlooked for promotion, and so on - such referrals are bound not to succeed, because the applicant is unable to prove that the employer's action amounted to a repudiation of the employment contract, or introduced a condition that was irremediable.
There are some oddballs - for example, a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee, could be a constructive dismissal.
The resignation of an employee in the face of a disciplinary hearing - and resigning in order to avoid the disciplinary hearing - would not necessarily constitute constructive dismissal.
It may well do so if the employee was threatened – “resign, or face a disciplinary hearing where you will be dismissed anyway.” that sort of thing might justify a dispute of constructive dismissal.
But the voluntary resignation of an employee, merely to avoid appearing at the disciplinary hearing, will not necessarily constitute constructive dismissal – furthermore, it will also not stay the proceedings.
The employer is still entitled to proceed with the disciplinary hearing in the absence of the employee.
There is no doubt that some employers, for various reasons, suddenly decided that a particular employee “has to go.”
In the absence of any justifiable reasons for dismissal, the employer proceeds to “construct” circumstances that will bring about a dismissal.
In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), it was found that “the appellant (employer) had rendered the working environment intolerable for the respondent by, inter alia, “throwing the book at her”, finding her guilty of matters for which she could not be held responsible, humiliating her by publishing the news of her final written warning to the parents of inmates, and depriving her of keys.” The appeal (against the finding that the constructive dismissal was proved) was accordingly dismissed.
It is common practice for employers to “throw the book” at employees who, for various obscure reasons, are suddenly “no longer suitable.”
Very often, the true reason is that cheaper labour can be found.
Employers would do well to take note that while constructive dismissal may be difficult to prove, it is not impossible.
Tactics like victimisation, continual harassment and so on, in the hopes of eventually getting the employee to resign, won't work.
For more information contact advice@labourguide.co.za
Constructive Dismissal (Additional information)
Section 186 (1) (e) of the Labour relations act states that in circumstances where "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee", constitutes a dismissal - in this context, a constructive dismissal.
I have been receiving an increasing number of e-mails lately from employees complaining about harsh or unjust or harassing treatment of employees by the employer.
Where an employee resigns his employment because he alleges that the employer has made continued employment intolerable, the onus is on the employee to establish the fact of dismissal.
In Jooste v Transnet Ltd t/a South African Airways, it was held that, for such a dispute to succeed, one of the requirements would be that the employee must prove that he or she had not intended to terminate the employment relationship, but was faced with no option but to do so because of the employer's unacceptable and intolerable behaviour.
In Pretoria Society for the Care of the Retarded v Loots, the Labour Appeal Court stated that "the enquiry is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between employer and employee. It is not necessary to show that the employer intended any repudiation of the contract: the Courts function is to look at the employer's conduct as a whole, and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it."
In Watt v Honeydew Dairies (Pty) Ltd the commission emphasised the difficulties faced by any employee who contemplates bringing a claim of constructive dismissal:
"It is submitted that an employee bears a considerable risk in the case of constructive dismissal. In the first place, one of the requirements of a constructive dismissal is that the employee must resign. This in turn means that if such employee is unable to show the requisite conditions that render continued employment intolerable, then that the resignation remains valid. (as a resignation and not as a constructive dismissal)."
It went on to state "the test is objective and therefore the subjective perceptions of the employee are not relevant in this regard."
In Coetzer v The Citizen Newspaper, and Kruger v CCMA & Another, it was reiterated that constructive dismissal is to be determined objectively and that resignation must be the last resort.
In Beets v University of Port Elizabeth , it was found that the constructive dismissal takes place only if the employee resigned because of the employer's harsh, antagonistic and hostile conduct, and in another instance it was held that the resignation must be ascribed because the prospect of continued employment was intolerable.
Resignation need not be the employee’s only option, but should be the only reasonable option for a claim of constructive dismissal to succeed.
In the event of material breach of contract by the employer, the employee may have the option of whether to terminate the contract, or hold the employer to its contractual obligations.
It has been found that acceptance by any employee of the employer's repudiation of material terms of the contract amounted to constructive dismissal.
This repudiation of material terms would include suspension of an employee without pay after the employer experience financial difficulties, or the employer's unilateral reduction of the employee's remuneration would also be sufficient to establish constructive dismissal.
Unfair disciplinary action taken by the employer also could constitute a breach of contract and may amount to a constructive dismissal. However resignation to avoid a disciplinary enquiry does not amount to a constructive dismissal.
In Van Der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being effectively demoted as a result of a restructuring exercise. The employer's failure to consult with the employee on the possibility of the demotion was considered unfair, and provided a sufficient basis for a claim of constructive dismissal. A demotion in another case also justify the claim of constructive dismissal.
In other matters such as sexual harassment, resulting the employee's resignation, may also constitute a constructive dismissal.
From the above, it will be seen that this area of constructive dismissal is very complicated, and there are no hard and fast rules.
Each case must be judged on its merits, and whilst there is an onus of risk placed on the employee in having to prove the dismissal, employers must also be aware of their behaviour and the way in which they handle employees.
For example, I have heard of cases where an employer makes a unilateral change to a remuneration structure, such as changing it from a monthly salary, to a basic and commission basis, simply because the employee is failing to reach target, could constitute a constructive dismissal.
Employers who unilaterally impose the working of short time on the employees must also take note that this unilateral action would amount to breach of contract, and possibly constructive dismissal as well.
Employers would do well to take professional legal advice before acting on any matter that may have an affect on the employment contract in order to avoid being faced with disputes of constructive dismissal.
Questions are often asked around constructive dismissal - what is it? Employees relate a certain situation and ask the question “can I claim constructive dismissal”? - and employers ask the question “the employee has resigned and is claiming a constructive dismissal – what do we do?”
Firstly, let us understand what it is - and it could be many things.
The basics are that constructive dismissal may be defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee - to such an extent that the employee as no other option available but to resign.”
In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), the Court referred to Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC), stating that the first test was whether, when resigning, there was no other motive for the resignation - in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct.
It went further to state that when any employee resigns and claims constructive dismissal, he is in fact stating that under the intolerable situation created by the employer, he can no longer continue to work, and has construed that the employer's behaviour amounts to a repudiation of the employment contract.
In view of the employer's repudiation, the employee terminates the contract.
In addition, in bringing such a dispute, it is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove that there was no other way of resolving the issue except for resignation.
It is not for the employer (respondent) to show that he did not introduce any intolerable condition - it is for the employee to show that he did.
There have been many referrals of constructive dismissal to the CCMA which have not succeeded - because the applicant has failed to prove the introduction of any intolerable working condition, amounting to repudiation by the employer of the employment contract.
Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessment, overlooked for promotion, and so on - such referrals are bound not to succeed, because the applicant is unable to prove that the employer's action amounted to a repudiation of the employment contract, or introduced a condition that was irremediable.
There are some oddballs - for example, a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee, could be a constructive dismissal.
The resignation of an employee in the face of a disciplinary hearing - and resigning in order to avoid the disciplinary hearing - would not necessarily constitute constructive dismissal.
It may well do so if the employee was threatened – “resign, or face a disciplinary hearing where you will be dismissed anyway.” that sort of thing might justify a dispute of constructive dismissal.
But the voluntary resignation of an employee, merely to avoid appearing at the disciplinary hearing, will not necessarily constitute constructive dismissal – furthermore, it will also not stay the proceedings.
The employer is still entitled to proceed with the disciplinary hearing in the absence of the employee.
There is no doubt that some employers, for various reasons, suddenly decided that a particular employee “has to go.”
In the absence of any justifiable reasons for dismissal, the employer proceeds to “construct” circumstances that will bring about a dismissal.
In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), it was found that “the appellant (employer) had rendered the working environment intolerable for the respondent by, inter alia, “throwing the book at her”, finding her guilty of matters for which she could not be held responsible, humiliating her by publishing the news of her final written warning to the parents of inmates, and depriving her of keys.” The appeal (against the finding that the constructive dismissal was proved) was accordingly dismissed.
It is common practice for employers to “throw the book” at employees who, for various obscure reasons, are suddenly “no longer suitable.”
Very often, the true reason is that cheaper labour can be found.
Employers would do well to take note that while constructive dismissal may be difficult to prove, it is not impossible.
Tactics like victimisation, continual harassment and so on, in the hopes of eventually getting the employee to resign, won't work.
For more information contact advice@labourguide.co.za
Constructive Dismissal (Additional information)
Section 186 (1) (e) of the Labour relations act states that in circumstances where "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee", constitutes a dismissal - in this context, a constructive dismissal.
I have been receiving an increasing number of e-mails lately from employees complaining about harsh or unjust or harassing treatment of employees by the employer.
Where an employee resigns his employment because he alleges that the employer has made continued employment intolerable, the onus is on the employee to establish the fact of dismissal.
In Jooste v Transnet Ltd t/a South African Airways, it was held that, for such a dispute to succeed, one of the requirements would be that the employee must prove that he or she had not intended to terminate the employment relationship, but was faced with no option but to do so because of the employer's unacceptable and intolerable behaviour.
In Pretoria Society for the Care of the Retarded v Loots, the Labour Appeal Court stated that "the enquiry is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between employer and employee. It is not necessary to show that the employer intended any repudiation of the contract: the Courts function is to look at the employer's conduct as a whole, and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it."
In Watt v Honeydew Dairies (Pty) Ltd the commission emphasised the difficulties faced by any employee who contemplates bringing a claim of constructive dismissal:
"It is submitted that an employee bears a considerable risk in the case of constructive dismissal. In the first place, one of the requirements of a constructive dismissal is that the employee must resign. This in turn means that if such employee is unable to show the requisite conditions that render continued employment intolerable, then that the resignation remains valid. (as a resignation and not as a constructive dismissal)."
It went on to state "the test is objective and therefore the subjective perceptions of the employee are not relevant in this regard."
In Coetzer v The Citizen Newspaper, and Kruger v CCMA & Another, it was reiterated that constructive dismissal is to be determined objectively and that resignation must be the last resort.
In Beets v University of Port Elizabeth , it was found that the constructive dismissal takes place only if the employee resigned because of the employer's harsh, antagonistic and hostile conduct, and in another instance it was held that the resignation must be ascribed because the prospect of continued employment was intolerable.
Resignation need not be the employee’s only option, but should be the only reasonable option for a claim of constructive dismissal to succeed.
In the event of material breach of contract by the employer, the employee may have the option of whether to terminate the contract, or hold the employer to its contractual obligations.
It has been found that acceptance by any employee of the employer's repudiation of material terms of the contract amounted to constructive dismissal.
This repudiation of material terms would include suspension of an employee without pay after the employer experience financial difficulties, or the employer's unilateral reduction of the employee's remuneration would also be sufficient to establish constructive dismissal.
Unfair disciplinary action taken by the employer also could constitute a breach of contract and may amount to a constructive dismissal. However resignation to avoid a disciplinary enquiry does not amount to a constructive dismissal.
In Van Der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being effectively demoted as a result of a restructuring exercise. The employer's failure to consult with the employee on the possibility of the demotion was considered unfair, and provided a sufficient basis for a claim of constructive dismissal. A demotion in another case also justify the claim of constructive dismissal.
In other matters such as sexual harassment, resulting the employee's resignation, may also constitute a constructive dismissal.
From the above, it will be seen that this area of constructive dismissal is very complicated, and there are no hard and fast rules.
Each case must be judged on its merits, and whilst there is an onus of risk placed on the employee in having to prove the dismissal, employers must also be aware of their behaviour and the way in which they handle employees.
For example, I have heard of cases where an employer makes a unilateral change to a remuneration structure, such as changing it from a monthly salary, to a basic and commission basis, simply because the employee is failing to reach target, could constitute a constructive dismissal.
Employers who unilaterally impose the working of short time on the employees must also take note that this unilateral action would amount to breach of contract, and possibly constructive dismissal as well.
Employers would do well to take professional legal advice before acting on any matter that may have an affect on the employment contract in order to avoid being faced with disputes of constructive dismissal.
Monday, May 3, 2010
The Quest to manage time effectively
My business experience has afforded me the opportunity for both personal and intellectual growth in environments where responsibility was and is highly valued.
What you are about to read below is one of the most profound discoveries I have made while travelling the journey of employer / employee behaviour.
The allocation of time toward the execution of duties is fundamental. Where the employee is unable to make such an application, it becomes necessary for the employer to install solutions suitable to the tasks.
Managing time to ones benefit in the workplace is a skill rarely implemented. While productivity and productive activity is not effectively measured by reporting and the application of corrective assistance, the need to manage time and the importance thereof will remain irrelevant or secondary to any employee.
Great lessons can be taken from manufacturing businesses. These types of businesses work on the completion of orders within a specific space of time or a production line that have targets they work toward. The environment may differ from an office or administrative workplace because of the close proximity employees work with their immediate seniors, but the principals remain the same. Often, employers incentivize on performance as a means of raising productivity levels.
Bearing in mind that males and females are driven by different desires and therefore the incentives offered has to be fit and proper.
Insurance houses use methods that increase activity, ultimately increasing sales. A big contributing factor to increasing activity is the effective dedication of time applied to every activity. It is a known fact that 21 days of consecutive practice of a specific function becomes a habit. Therefore the best way to start to learn how to manage time is to start using a diary and to consult that diary every day. This will allow you to learn how to space tasks and appointments in keeping with the codes of good practice.
Employers prefer consistent good business as opposed to short lived high figures. Employees who deliver on a high note from the start, burn out far quicker than the ones who strategically plan, deliver on average, but deliver consistently. Although there’s nothing wrong with doing excellent, it is doing excellent all the time, that’s the problem. In other words: maintaining the level or standard set by yourself can sometimes be to your detriment. Employees should allow expectations to be set by employers.
Managing time effectively will allow you to deliver efficiently & consistently.
What you are about to read below is one of the most profound discoveries I have made while travelling the journey of employer / employee behaviour.
The allocation of time toward the execution of duties is fundamental. Where the employee is unable to make such an application, it becomes necessary for the employer to install solutions suitable to the tasks.
Managing time to ones benefit in the workplace is a skill rarely implemented. While productivity and productive activity is not effectively measured by reporting and the application of corrective assistance, the need to manage time and the importance thereof will remain irrelevant or secondary to any employee.
Great lessons can be taken from manufacturing businesses. These types of businesses work on the completion of orders within a specific space of time or a production line that have targets they work toward. The environment may differ from an office or administrative workplace because of the close proximity employees work with their immediate seniors, but the principals remain the same. Often, employers incentivize on performance as a means of raising productivity levels.
Bearing in mind that males and females are driven by different desires and therefore the incentives offered has to be fit and proper.
Insurance houses use methods that increase activity, ultimately increasing sales. A big contributing factor to increasing activity is the effective dedication of time applied to every activity. It is a known fact that 21 days of consecutive practice of a specific function becomes a habit. Therefore the best way to start to learn how to manage time is to start using a diary and to consult that diary every day. This will allow you to learn how to space tasks and appointments in keeping with the codes of good practice.
Employers prefer consistent good business as opposed to short lived high figures. Employees who deliver on a high note from the start, burn out far quicker than the ones who strategically plan, deliver on average, but deliver consistently. Although there’s nothing wrong with doing excellent, it is doing excellent all the time, that’s the problem. In other words: maintaining the level or standard set by yourself can sometimes be to your detriment. Employees should allow expectations to be set by employers.
Managing time effectively will allow you to deliver efficiently & consistently.
Senior Managers Joining Trade Unions - SA Labourguide
Freedom of association is a Constitutional as well as a basic labour right of every employee in an organisation, regardless the status and seniority of the employee. Section 4 of the Labour Relations Act (LRA) determines that every employee has the right to participate in forming a trade union and to join a trade union, subject to its constitution. The employee furthermore, has the right to participate in its activities and stand for election.
This applies to senior managers as well and the section effectively trumps the common law in that a manager who belongs to a Union is not in breach of his/her duty of fidelity to the employer. This right can also not be excluded by contract. Any contract containing a clause prohibiting Union membership will be unenforceable.
The employer is also not without remedy. The senior employee or manager still owes the employer a duty of good faith and must perform his functions for which he was appointed under this duty. In IMATU & Others v Rustenburg Transitional Council (2002) 11 LC 12.2.1, The court held that “the employer cannot seek to infringe the employee’s freedom of association, but may pursue breach of contract remedies should a senior manager, who is also in a senior position in the trade union, not be able to serve the interests of his employer in good faith. “The employee must still do the work for which he is engaged and observe the secondary duties by which he is bound under the contract. If he does not, he can be disciplined for misconduct or laid off for incapacity.”
The employer should also enter into an agreement with the employee as to what is defined as confidential information which may not be disclosed to the Union and what it requires of the employee in this regard. The employee should also be cautious, the mere silence during a meeting may also indicate or disclose confidential information and best avoid sensitive meetings, than just keeping quiet, which might send its own message.
Important to note is that the right to freedom of association is in essence the right to act as a group, this presupposes collection action by members. This collective action does not give the individual more rights than he/she has on an individual basis. For instance, the employee does not have a right to claim deduction of levies from an employer if the Union is not sufficiently representative to claim the rights of section 13 of the Labour Relations Act.
In Food & Allied Workers Union & another v The Cold Chain (2007) 16 LC 8.29.1, the employee had been dismissed by the employer. As an alternative to retrenchment, the respondent offered the employee a position on a higher grade, provided that he relinquished his position as a shop steward. When he refused, he was dismissed. It was held that section 23(2) of the Constitution guarantees employees the right to form and join trade unions, and to engage in activities related thereto. For the employer to deny an employee promotion into a higher position unless he surrendered his position as a shop steward would be unlawful. The employee was awarded 9 months’ remuneration as compensation
This applies to senior managers as well and the section effectively trumps the common law in that a manager who belongs to a Union is not in breach of his/her duty of fidelity to the employer. This right can also not be excluded by contract. Any contract containing a clause prohibiting Union membership will be unenforceable.
The employer is also not without remedy. The senior employee or manager still owes the employer a duty of good faith and must perform his functions for which he was appointed under this duty. In IMATU & Others v Rustenburg Transitional Council (2002) 11 LC 12.2.1, The court held that “the employer cannot seek to infringe the employee’s freedom of association, but may pursue breach of contract remedies should a senior manager, who is also in a senior position in the trade union, not be able to serve the interests of his employer in good faith. “The employee must still do the work for which he is engaged and observe the secondary duties by which he is bound under the contract. If he does not, he can be disciplined for misconduct or laid off for incapacity.”
The employer should also enter into an agreement with the employee as to what is defined as confidential information which may not be disclosed to the Union and what it requires of the employee in this regard. The employee should also be cautious, the mere silence during a meeting may also indicate or disclose confidential information and best avoid sensitive meetings, than just keeping quiet, which might send its own message.
Important to note is that the right to freedom of association is in essence the right to act as a group, this presupposes collection action by members. This collective action does not give the individual more rights than he/she has on an individual basis. For instance, the employee does not have a right to claim deduction of levies from an employer if the Union is not sufficiently representative to claim the rights of section 13 of the Labour Relations Act.
In Food & Allied Workers Union & another v The Cold Chain (2007) 16 LC 8.29.1, the employee had been dismissed by the employer. As an alternative to retrenchment, the respondent offered the employee a position on a higher grade, provided that he relinquished his position as a shop steward. When he refused, he was dismissed. It was held that section 23(2) of the Constitution guarantees employees the right to form and join trade unions, and to engage in activities related thereto. For the employer to deny an employee promotion into a higher position unless he surrendered his position as a shop steward would be unlawful. The employee was awarded 9 months’ remuneration as compensation
Sunday, April 11, 2010
How do you deal with Insubordination????
South African employees are so heavily protected by the constitution, by labour legislation, by the Labour Courts, the CCMA and trade unions that they are often not afraid to defy the employer's instructions.
For the employer the resulting insubordination is a nightmare.
This is especially so where the employer is ill-equipped to deal with insubordinate employees and fails to understand:
• What insubordination really is;
• How it differs from disrespect;
• What a reasonable instruction is;
• When a charge of insubordination is not appropriate;
• How seriously the law views insubordination; and
• How it should be dealt with.
What is subordination?
The Collins Concise Dictionary defines "insubordinate" as "not submissive to authority, disobedient or rebellious".
It is the refusal of an employee to bow to the authority exercised reasonably by the employee's superior.
This could include conduct such as:
• Refusal or intentional failure to obey reasonable and lawful instructions;
• Comments such as "You have no authority over me"; and
• Telling the manager to go and get what he/she wants from someone else.
Insubordination v disrespect
Insubordination applies only upwards and can only be perpetrated by a junior towards a senior. Disrespect, on the other hand, can apply upwards and downwards.
For example, it would be disrespectful for a manager to shout at an employee and tell him/her to "get out of the office".
Disrespect is therefore not necessarily linked to a person's position of authority but can be linked to one's human dignity.
What is a reasonable instruction?
In my view a reasonable instruction is one that:
• The employee is capable of carrying out; and
• Involves a task that is not substantially beneath the employee; and
• Does not infringe the rules of the employer or the laws of the country; and
• Involves a task that truly needs to be done.
For example, if the boss tells the human resources manager (HRM) on a four-day week contract to come in on the weekend to repair the faulty elevator the might be entitled to refuse because the HR manager is being required to carry out a task:
That is completely outside the sphere of the HRM's duties;
Outside of the HRM's capabilities;
Assigned for a time that is not normally worked; and
That, if carried out by the HRM, could result in danger to users of the elevator.
However, telling the HRM to conduct recruitment interviews because the HR officer is in hospital would, in most cases, be both legal and reasonable.
When a charge of subordination is not appropriate
Insubordination is not the same as poor work performance.
That is, poor work performance relates to how badly the employee has performed work or missed deadlines.
While poor work performance can sometimes be wilful there is usually some work that is done, albeit badly, and the poor performance occurs regardless of whether the employee has been given an instruction.
On the other hand insubordination means the employee's refusal to obey a specific instruction whether the instruction relates to work performance or not.
Employers confuse these two concepts at their peril. For example, in the case of Fourie v Capitec Bank (2005, 1 BALR 29), the employee was dismissed for insubordination.
The dismissal decision was influenced by the fact that the employee had previously received a final warning for poor work performance.
The arbitrator found the dismissal to be unfair because these were not two like offences.
Also, an employee might fail to carry out an instruction because:
The equipment used is really faulty;
The employee truly does not have the required skill; and
The employee is genuinely disabled.
These examples do not amount to insubordination because the employee is not refusing to carry out the instruction.
For the employer the resulting insubordination is a nightmare.
This is especially so where the employer is ill-equipped to deal with insubordinate employees and fails to understand:
• What insubordination really is;
• How it differs from disrespect;
• What a reasonable instruction is;
• When a charge of insubordination is not appropriate;
• How seriously the law views insubordination; and
• How it should be dealt with.
What is subordination?
The Collins Concise Dictionary defines "insubordinate" as "not submissive to authority, disobedient or rebellious".
It is the refusal of an employee to bow to the authority exercised reasonably by the employee's superior.
This could include conduct such as:
• Refusal or intentional failure to obey reasonable and lawful instructions;
• Comments such as "You have no authority over me"; and
• Telling the manager to go and get what he/she wants from someone else.
Insubordination v disrespect
Insubordination applies only upwards and can only be perpetrated by a junior towards a senior. Disrespect, on the other hand, can apply upwards and downwards.
For example, it would be disrespectful for a manager to shout at an employee and tell him/her to "get out of the office".
Disrespect is therefore not necessarily linked to a person's position of authority but can be linked to one's human dignity.
What is a reasonable instruction?
In my view a reasonable instruction is one that:
• The employee is capable of carrying out; and
• Involves a task that is not substantially beneath the employee; and
• Does not infringe the rules of the employer or the laws of the country; and
• Involves a task that truly needs to be done.
For example, if the boss tells the human resources manager (HRM) on a four-day week contract to come in on the weekend to repair the faulty elevator the might be entitled to refuse because the HR manager is being required to carry out a task:
That is completely outside the sphere of the HRM's duties;
Outside of the HRM's capabilities;
Assigned for a time that is not normally worked; and
That, if carried out by the HRM, could result in danger to users of the elevator.
However, telling the HRM to conduct recruitment interviews because the HR officer is in hospital would, in most cases, be both legal and reasonable.
When a charge of subordination is not appropriate
Insubordination is not the same as poor work performance.
That is, poor work performance relates to how badly the employee has performed work or missed deadlines.
While poor work performance can sometimes be wilful there is usually some work that is done, albeit badly, and the poor performance occurs regardless of whether the employee has been given an instruction.
On the other hand insubordination means the employee's refusal to obey a specific instruction whether the instruction relates to work performance or not.
Employers confuse these two concepts at their peril. For example, in the case of Fourie v Capitec Bank (2005, 1 BALR 29), the employee was dismissed for insubordination.
The dismissal decision was influenced by the fact that the employee had previously received a final warning for poor work performance.
The arbitrator found the dismissal to be unfair because these were not two like offences.
Also, an employee might fail to carry out an instruction because:
The equipment used is really faulty;
The employee truly does not have the required skill; and
The employee is genuinely disabled.
These examples do not amount to insubordination because the employee is not refusing to carry out the instruction.
The reason for Human Capacity Management
HUMAN CAPACITY
MANAGEMENT
Salary vs Duties vs Time
Salary
Quantity of Duties
Amount of working hours per day
THIS EQUATION ONLY CALCULATES THE FAIRNESS OF AN EMPLOYEES’ EXPECTED DELIVERY OF HIS/HER JOB.
This not an equation that is supposed to make sense, since there is a missing factor. The factor of value, and not Rand Value.
The value I refer to is the type of value that the company place on the employee and what he represents when dealing with customers / suppliers and fellow employees, when performing his duties. However, the above equation is necessary, especially where the job is not labour intensive and the income is not governed in terms of a Bargaining Council as an hourly rate or dependant on the completion of a job or specific task.
Where there are no measurable factors such as sales in terms of volume and quantity as an expected norm, then the value of quality and representation become the very necessity that you require from your staff.
If you are able to answer the following questions without hesitation, then you don’t have a problem.
1. Do you know how much time they spend actually working?
2. How would you know this?
3. What is the difference between job titles and job descriptions?
4. Does your staff know why it is important for them to have tasks completed?
5. Does your staff understand your business?
6. Do they know what’s keeping you in business ultimately keeping them employed?
7. Do they know where and how the business makes its money?
8. Do you think they will behave more responsibly if they do know the answer to the three questions above?
If salaries were coupled to duties as opposed to job titles, business development, sales and the delivery thereof would be a lot more effective.
So, what does all this mean to you and how would this help your business?
What we put in place will eliminate a written progress report and you will never have to worry about what your staff gets up to in your absence.
If the numbers are up or the job got done, the desired result has been achieved.
MANAGEMENT
Salary vs Duties vs Time
Salary
Quantity of Duties
Amount of working hours per day
THIS EQUATION ONLY CALCULATES THE FAIRNESS OF AN EMPLOYEES’ EXPECTED DELIVERY OF HIS/HER JOB.
This not an equation that is supposed to make sense, since there is a missing factor. The factor of value, and not Rand Value.
The value I refer to is the type of value that the company place on the employee and what he represents when dealing with customers / suppliers and fellow employees, when performing his duties. However, the above equation is necessary, especially where the job is not labour intensive and the income is not governed in terms of a Bargaining Council as an hourly rate or dependant on the completion of a job or specific task.
Where there are no measurable factors such as sales in terms of volume and quantity as an expected norm, then the value of quality and representation become the very necessity that you require from your staff.
If you are able to answer the following questions without hesitation, then you don’t have a problem.
1. Do you know how much time they spend actually working?
2. How would you know this?
3. What is the difference between job titles and job descriptions?
4. Does your staff know why it is important for them to have tasks completed?
5. Does your staff understand your business?
6. Do they know what’s keeping you in business ultimately keeping them employed?
7. Do they know where and how the business makes its money?
8. Do you think they will behave more responsibly if they do know the answer to the three questions above?
If salaries were coupled to duties as opposed to job titles, business development, sales and the delivery thereof would be a lot more effective.
So, what does all this mean to you and how would this help your business?
What we put in place will eliminate a written progress report and you will never have to worry about what your staff gets up to in your absence.
If the numbers are up or the job got done, the desired result has been achieved.
Tuesday, March 16, 2010
Recruitment, Selection & Appointment - What to Consider
Recruitment Policy
Relevant Legislation and unfair discrimination
Assessment of the requirements for the specific vacancy or position
Compiling the job profile
What is the meaning of the term “suitably qualified”
The Advertisement
The role of a Recruitment Agency
The Application form
Screening of applicants
Selection criteria
The interview
Short-listing
The importance of the background check
Selection and offer of employment
Psychological and medical testing
The appointment process
The above is exactly why some employers outsource the function of recruiting.
As you can see, it can be a very daunting task, however, for those who are brave enough to man the challenge, good luck.
But, be warned. If not properly executed, it can become a thorn in one's side. In the interviews of a female by Woolworths for a specific position, a pregnant woman did'nt make the short list and when she filed against Woolies to claim some level of discrimination, guess who won the case.......... THE PREGNANT LADY OF COURSE......... "Poor Woolies"
Good Luck to the brave ones.................
Relevant Legislation and unfair discrimination
Assessment of the requirements for the specific vacancy or position
Compiling the job profile
What is the meaning of the term “suitably qualified”
The Advertisement
The role of a Recruitment Agency
The Application form
Screening of applicants
Selection criteria
The interview
Short-listing
The importance of the background check
Selection and offer of employment
Psychological and medical testing
The appointment process
The above is exactly why some employers outsource the function of recruiting.
As you can see, it can be a very daunting task, however, for those who are brave enough to man the challenge, good luck.
But, be warned. If not properly executed, it can become a thorn in one's side. In the interviews of a female by Woolworths for a specific position, a pregnant woman did'nt make the short list and when she filed against Woolies to claim some level of discrimination, guess who won the case.......... THE PREGNANT LADY OF COURSE......... "Poor Woolies"
Good Luck to the brave ones.................
The "Know-it-all" Syndrome
Why employers dont treat labour relations issues as they should, is a bit confusing. Nobody buys insurance after they've knocked their car. Most employers think that because they dont experience issues, they dont need cover.
The very essence of covering against anything, is exactly that.
In the event that something happens, you are covered. The reality is that most employers deal with issues as they arise. They unfortunately do not put preventative measures in place to ensure against issues. For instance, policies, grievance procedures,dismissible offences documents, workshopping staff on labour relations matters.
Remember, if your staff knows that you know, they will tread lightly.
This minimises the impact of any sort of action, even misconduct. I do believe that all issues cannot be foreseen and that there may be some that will slip through the cracks, however, in my experience, most are preventable.
Solutions reside with professionals and the expertise is not necessarily expensive to employ.
Make contact with our offices and be surprised / amazed at what we can do for your business.
The very essence of covering against anything, is exactly that.
In the event that something happens, you are covered. The reality is that most employers deal with issues as they arise. They unfortunately do not put preventative measures in place to ensure against issues. For instance, policies, grievance procedures,dismissible offences documents, workshopping staff on labour relations matters.
Remember, if your staff knows that you know, they will tread lightly.
This minimises the impact of any sort of action, even misconduct. I do believe that all issues cannot be foreseen and that there may be some that will slip through the cracks, however, in my experience, most are preventable.
Solutions reside with professionals and the expertise is not necessarily expensive to employ.
Make contact with our offices and be surprised / amazed at what we can do for your business.
Monday, March 15, 2010
Suspensions - Could Be Dangerous for Employers
Employees are suspended from duty for different reasons that may include a temporary lay-off due to operational circumstances.
That is, during retrenchment consultations, either party may suggest temporary lay-offs as an alternative to retrenchment.
This might be implemented where the employees agree to the lay-offs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid, but would still be employees of the employer.
Employers must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no good reason for the lay- offs and the employer could well be forced to pay the employees for the lay-off period.
Where there is a large number of workers or where the lay-off period is a long one this payment could come to an extremely high amount.
The employer's intention behind a suspension may be to make the employee's working circumstances so uncomfortable that he/she resigns.
This motive is both illegitimate and dangerous. Employees sometimes resign on being suspended and charge the employer at CCMA with constructive dismissal.
However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign.
Should the employee claim at arbitration that the suspension was a sham on the employer's part the employer must be given the opportunity to show that it had good reason to suspend the employee and that there was some basis for the suspicion of misconduct.
The employer may need to investigate serious allegations made against the employee.
Where the employee is in a position of official or unofficial power, the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation.
This is a legitimate reason for suspension, but the employee must be on full pay during the suspension period.
The employer must be sure that the suspension does not have the effect of breaching a contractual right of the employee, otherwise a civil suit could result.
The employer may have a need to avert the danger of the employee repeating the alleged offence.
That is, during retrenchment consultations, either party may suggest temporary lay-offs as an alternative to retrenchment.
This might be implemented where the employees agree to the lay-offs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid, but would still be employees of the employer.
Employers must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no good reason for the lay- offs and the employer could well be forced to pay the employees for the lay-off period.
Where there is a large number of workers or where the lay-off period is a long one this payment could come to an extremely high amount.
The employer's intention behind a suspension may be to make the employee's working circumstances so uncomfortable that he/she resigns.
This motive is both illegitimate and dangerous. Employees sometimes resign on being suspended and charge the employer at CCMA with constructive dismissal.
However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign.
Should the employee claim at arbitration that the suspension was a sham on the employer's part the employer must be given the opportunity to show that it had good reason to suspend the employee and that there was some basis for the suspicion of misconduct.
The employer may need to investigate serious allegations made against the employee.
Where the employee is in a position of official or unofficial power, the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation.
This is a legitimate reason for suspension, but the employee must be on full pay during the suspension period.
The employer must be sure that the suspension does not have the effect of breaching a contractual right of the employee, otherwise a civil suit could result.
The employer may have a need to avert the danger of the employee repeating the alleged offence.
Monday, March 8, 2010
Alcohol and Drug Abuse in the Workplace
Employers are faced with this problem on a regular basis. Abuse of alcohol or drugs on the workplace while on duty, the consumption of alcohol or drugs before coming on duty, with all sorts of excuses such as “ it is from the night before” or “it is cough mixture.”
Employees sometimes “ nip out for a quick one” during their meal break, or field sales staff “have a few” while entertaining clients to lunch.
There is any amount of case law on dismissals for this type of offence, in its varying forms.
The important thing that comes out of the case law is the Employer's Policy on Alcohol and Drug Consumption on or off the Workplace.
The policy should be clear – firstly, zero tolerance. Do not allow for limits in your policy.
Secondly, the policy must stipulate your test procedure. For example, a breathalyser test for alcohol will be required - or a urine test for drugs. The policy must state that note will be taken of circumstantial evidence, such as bloodshot eyes, slurred speech, the smell of alcohol on the breath, unsteadiness on his feet, dishevelled appearance, aggressive or abusive or arrogant or out of character behaviour, and the inability to walk a 10 metre straight line with the arms held out horizontally.
There should be a proper “ test sheet” on which the above items are listed, together with space for the comments of the person conducting the test. There should be a witness present for the employer and a witness present for the employee to ensure fairness of the procedure.
The employer's rules regarding alcohol or drug consumption whilst on duty, or off duty before coming to work, must be very specific and must warn employees that should the rural be contravened, disciplinary action will follow which may result in dismissal.
The policy must also make mention of the regulations in the Occupational Health and Safety Act regarding this Issue.
In SACCAWU obo Ntonga & another / A1 Fisheries [1999] 8 BALR 943 (CCMA) it was found unnecessary for the employer to prove how much alcohol had been consumed - only that liquor had been consumed.
In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was found that whilst the employee denied that he had consumed liquor, he refused counselling and rehabilitation assistance on the grounds that he did not have a drinking problem, and his dismissal was therefore found to be fair even on a first offence and withy a clean disciplinary record.
It was stated that if an employee denies that he has a drinking problem and refuses assistance, then it is simply treated as a misconduct.
In SACCAWU obo Mfengwane v Bonus [1998] 5 BALR 595 (CCMA), it was also ruled that when an employee denies that he has a substance dependence problem, counselling is unnecessary - the matter is treated as a misconduct in terms of the employer's policy.
In SALSTAFF obo Venter / Metro Rail [1999] 1 BALR 59 (IMSSA) matters took a different twist.
The employee was dismissed on several charges of being under the influence of alcohol on duty.
The employee denied that he had been under the influence or that he had endangered passengers.
During the hearing it was revealed that the employee regularly worked shifts of 18 hours without a break.
The arbitrator found that under normal circumstances, dismissal in this case would have been justified.
However, the arbitrator found that the conditions in which the grievant had worked were not normal, and that the working hours required of him did not allow for any recreational time.
In fact, his life consisted of working and sleeping.
It was ruled that rather than dismissal, the employer should have addressed the root of the problem and should have changed the employee's working hours.
The employee was accordingly reinstated in employment retrospectively.
This shows that employers must err on the side of caution and should conduct a proper and full investigation to establish amongst other things, the causes of the substance abuse problem.
Employees sometimes “ nip out for a quick one” during their meal break, or field sales staff “have a few” while entertaining clients to lunch.
There is any amount of case law on dismissals for this type of offence, in its varying forms.
The important thing that comes out of the case law is the Employer's Policy on Alcohol and Drug Consumption on or off the Workplace.
The policy should be clear – firstly, zero tolerance. Do not allow for limits in your policy.
Secondly, the policy must stipulate your test procedure. For example, a breathalyser test for alcohol will be required - or a urine test for drugs. The policy must state that note will be taken of circumstantial evidence, such as bloodshot eyes, slurred speech, the smell of alcohol on the breath, unsteadiness on his feet, dishevelled appearance, aggressive or abusive or arrogant or out of character behaviour, and the inability to walk a 10 metre straight line with the arms held out horizontally.
There should be a proper “ test sheet” on which the above items are listed, together with space for the comments of the person conducting the test. There should be a witness present for the employer and a witness present for the employee to ensure fairness of the procedure.
The employer's rules regarding alcohol or drug consumption whilst on duty, or off duty before coming to work, must be very specific and must warn employees that should the rural be contravened, disciplinary action will follow which may result in dismissal.
The policy must also make mention of the regulations in the Occupational Health and Safety Act regarding this Issue.
In SACCAWU obo Ntonga & another / A1 Fisheries [1999] 8 BALR 943 (CCMA) it was found unnecessary for the employer to prove how much alcohol had been consumed - only that liquor had been consumed.
In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was found that whilst the employee denied that he had consumed liquor, he refused counselling and rehabilitation assistance on the grounds that he did not have a drinking problem, and his dismissal was therefore found to be fair even on a first offence and withy a clean disciplinary record.
It was stated that if an employee denies that he has a drinking problem and refuses assistance, then it is simply treated as a misconduct.
In SACCAWU obo Mfengwane v Bonus [1998] 5 BALR 595 (CCMA), it was also ruled that when an employee denies that he has a substance dependence problem, counselling is unnecessary - the matter is treated as a misconduct in terms of the employer's policy.
In SALSTAFF obo Venter / Metro Rail [1999] 1 BALR 59 (IMSSA) matters took a different twist.
The employee was dismissed on several charges of being under the influence of alcohol on duty.
The employee denied that he had been under the influence or that he had endangered passengers.
During the hearing it was revealed that the employee regularly worked shifts of 18 hours without a break.
The arbitrator found that under normal circumstances, dismissal in this case would have been justified.
However, the arbitrator found that the conditions in which the grievant had worked were not normal, and that the working hours required of him did not allow for any recreational time.
In fact, his life consisted of working and sleeping.
It was ruled that rather than dismissal, the employer should have addressed the root of the problem and should have changed the employee's working hours.
The employee was accordingly reinstated in employment retrospectively.
This shows that employers must err on the side of caution and should conduct a proper and full investigation to establish amongst other things, the causes of the substance abuse problem.
Thursday, March 4, 2010
Breach of the trust relationship
Procedural errors often occur when an employer decides to charge an employee and the charges are not well thought through and tested against the evidence or the complainant fails to correctly apply the evidentiary burden of proof.
Many employers have a comprehensive disciplinary code and procedure which provides for a whole array of different transgressions and proposed sanctions.
It is often a daunting task to decide which charge in the disciplinary code and procedure fit the transgression.
It is however, a very crucial and necessary exercise to perform, as the employer will be stuck with these charges right through the life of the disciplinary action and possible arbitration thereafter.
This is when, if the complainant does not apply his mind, charges are split and employees end up with a host of charges, and when they are scrutinized only amounts to charging the employee twice or even more times for the same offence.
Another practice frequently used by employers is to use over arching charges such as: “conduct in breach of the trust relationship”.
Breach of the trust relationship is the test to be applied to determine whether the employee should be dismissed or not. If there is no evidence of such a breach, then the employer cannot dismiss.
In Edcon Ltd / Pillemer NO & others,[1] the employee was the beneficial user of a company vehicle, courtesy of Edcon’s car scheme policy (“the policy”). The car was involved in a collision with another vehicle whilst driven by the employee’s son.
She was not in the car at the time. In terms of the policy, she was obliged to report the accident to Edcon, the SAP and the relevant insurance company within 24 hours, and not carry out repairs to the Corolla without the approval of the insurance company.
Fearing that the company will find out about the fact that her son was driving, the employee did none of the above and arranged with her husband to repair the car at his panel beating shop at their own cost. As things go, Edcon found out about this. She also did not disclose to the manager that the car had been in a collision, he only discovered this when he contacted the service personnel.
On being confronted the employee initially denied that the car had been involved in a collision, but later admitted the occurrence, stating that the collision had occurred whilst she was driving it.
When the manager spoke to the investigator, she repeated her lie that she was the driver when the collision took place, she did tell him though, that she had given the car to her husband to repair at his panel beating shop. Naidoo recommended the employee’s suspension on full pay pending finalisation of his investigation.
At his request for a further statement, she then changed her version, this time stating that the collision had occurred whilst her son was driving, but that she was a passenger.
Only at the third time did she come clean and her final statement was when she told the truth with an offer that the son was driving and that she was not in the vehicle and she offered to repay the costs associated with the required repairs.
The son had also, in the mean time, made a statement to Naidoo confirming that he was driving the car and that he was alone when the collision occurred. It is common cause that in terms of the policy, the son was entitled to drive the car as he was in possession of a valid driver’s licence.
In due course Edcon convened a disciplinary enquiry. The charge levelled against her was:
“failure to be honest and act with integrity in that you committed an act, which has affected the trust relationship between the company and the employee in that on 8 June 2003 to 8 October 2003: You failed to report an accident of a company vehicle . . . which your son was driving on the day of the accident (8 June 2003) and this resulted in a breach of trust between yourself and the company.”
The employee pleaded guilty to the charge at the commencement of the enquiry, stating that her ignorance of the policy rule that her son was entitled to drive the Corolla had driven her to be deceitful as an attempt to protect him.
She was found guilty and dismissed from her employment. The decision to dismiss her appears to have been motivated by the chairperson’s view that she had behaved without integrity and honesty, values regarded highly by Edcon.
Although considered, the chairperson regarded Reddy’s unblemished record and character as not sufficiently mitigation for her conduct.
Many employers have a comprehensive disciplinary code and procedure which provides for a whole array of different transgressions and proposed sanctions.
It is often a daunting task to decide which charge in the disciplinary code and procedure fit the transgression.
It is however, a very crucial and necessary exercise to perform, as the employer will be stuck with these charges right through the life of the disciplinary action and possible arbitration thereafter.
This is when, if the complainant does not apply his mind, charges are split and employees end up with a host of charges, and when they are scrutinized only amounts to charging the employee twice or even more times for the same offence.
Another practice frequently used by employers is to use over arching charges such as: “conduct in breach of the trust relationship”.
Breach of the trust relationship is the test to be applied to determine whether the employee should be dismissed or not. If there is no evidence of such a breach, then the employer cannot dismiss.
In Edcon Ltd / Pillemer NO & others,[1] the employee was the beneficial user of a company vehicle, courtesy of Edcon’s car scheme policy (“the policy”). The car was involved in a collision with another vehicle whilst driven by the employee’s son.
She was not in the car at the time. In terms of the policy, she was obliged to report the accident to Edcon, the SAP and the relevant insurance company within 24 hours, and not carry out repairs to the Corolla without the approval of the insurance company.
Fearing that the company will find out about the fact that her son was driving, the employee did none of the above and arranged with her husband to repair the car at his panel beating shop at their own cost. As things go, Edcon found out about this. She also did not disclose to the manager that the car had been in a collision, he only discovered this when he contacted the service personnel.
On being confronted the employee initially denied that the car had been involved in a collision, but later admitted the occurrence, stating that the collision had occurred whilst she was driving it.
When the manager spoke to the investigator, she repeated her lie that she was the driver when the collision took place, she did tell him though, that she had given the car to her husband to repair at his panel beating shop. Naidoo recommended the employee’s suspension on full pay pending finalisation of his investigation.
At his request for a further statement, she then changed her version, this time stating that the collision had occurred whilst her son was driving, but that she was a passenger.
Only at the third time did she come clean and her final statement was when she told the truth with an offer that the son was driving and that she was not in the vehicle and she offered to repay the costs associated with the required repairs.
The son had also, in the mean time, made a statement to Naidoo confirming that he was driving the car and that he was alone when the collision occurred. It is common cause that in terms of the policy, the son was entitled to drive the car as he was in possession of a valid driver’s licence.
In due course Edcon convened a disciplinary enquiry. The charge levelled against her was:
“failure to be honest and act with integrity in that you committed an act, which has affected the trust relationship between the company and the employee in that on 8 June 2003 to 8 October 2003: You failed to report an accident of a company vehicle . . . which your son was driving on the day of the accident (8 June 2003) and this resulted in a breach of trust between yourself and the company.”
The employee pleaded guilty to the charge at the commencement of the enquiry, stating that her ignorance of the policy rule that her son was entitled to drive the Corolla had driven her to be deceitful as an attempt to protect him.
She was found guilty and dismissed from her employment. The decision to dismiss her appears to have been motivated by the chairperson’s view that she had behaved without integrity and honesty, values regarded highly by Edcon.
Although considered, the chairperson regarded Reddy’s unblemished record and character as not sufficiently mitigation for her conduct.
Tuesday, March 2, 2010
Fixed Term Contracts - a tricky affair
Fixed-term contracts can be a dangerous tactic
South Africa's labour legislation provides strong protection for employees.
That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be got rid of.
These obstacles include:
• A plethora of procedures that must be followed before a dismissal can be considered to be fair;
• Stringent and numerous criteria for deciding whether the reason for a dismissal is fair;
• Broad discrepancy between judges and arbitrators as to the interpretation of the labour law;
• The provision that, where a dismissal is adjudged to be unfair, the arbiter may reinstate the employee or impose a heavy compensation order of up to 24 months' pay in some cases against the employer;
• The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this is still required to present its case first at the unfair dismissal hearing; and
• Despite the fact that many employers do not have the expertise to defend cases at the CCMA, the law makes it difficult for them to use legal experts as representatives.
Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts.
Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date. However, this is a dangerous tactic because labour law has virtually closed this loophole.
That is, if the employer gives the employee a "reasonable expectation" that the contract will be renewed on expiry, the arbitrator could force the employer to renew the contract.
In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696) the employer made a habit of regularly renewing fixed-term contracts.
But then it allowed the last contracts to lapse even though there was still available work for the terminated employees.
The Labour Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.
In the case of Pretorius vs Sasol Polymers (2008, 1 BALR 10) Ms Pretorius was appointed on a fixed-term contract to act in place of the permanent incumbent.
South Africa's labour legislation provides strong protection for employees.
That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be got rid of.
These obstacles include:
• A plethora of procedures that must be followed before a dismissal can be considered to be fair;
• Stringent and numerous criteria for deciding whether the reason for a dismissal is fair;
• Broad discrepancy between judges and arbitrators as to the interpretation of the labour law;
• The provision that, where a dismissal is adjudged to be unfair, the arbiter may reinstate the employee or impose a heavy compensation order of up to 24 months' pay in some cases against the employer;
• The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this is still required to present its case first at the unfair dismissal hearing; and
• Despite the fact that many employers do not have the expertise to defend cases at the CCMA, the law makes it difficult for them to use legal experts as representatives.
Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts.
Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date. However, this is a dangerous tactic because labour law has virtually closed this loophole.
That is, if the employer gives the employee a "reasonable expectation" that the contract will be renewed on expiry, the arbitrator could force the employer to renew the contract.
In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696) the employer made a habit of regularly renewing fixed-term contracts.
But then it allowed the last contracts to lapse even though there was still available work for the terminated employees.
The Labour Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.
In the case of Pretorius vs Sasol Polymers (2008, 1 BALR 10) Ms Pretorius was appointed on a fixed-term contract to act in place of the permanent incumbent.
Thursday, February 25, 2010
Trade Unions and the importance of electing the right shop steward
this is a tricky one ................... stay tuned.
Wednesday, February 24, 2010
What to consider when preparing to chair a disciplinary hearing
This a continuation of my previous article written on 19th February 2010.
Electing a Chairperson
Discipline in the Workplace
What is a dismissal?
Different types of dismissal
Procedural & Substantive Fairness
The Transgression
The Investigation
Evidence in Disciplinary Hearings
Witness Statements
Compiling the Charge Sheet
Employee representation in hearings
The Notice of Disciplinary Hearing
The participants in the hearing
Summary of steps in a formal hearing
Procedure for a Formal Disciplinary Hearing
A step-by-step guide for the Chairperson
The verdict and finding
Preparation is important, but executing is even more so. It does'nt have to be too legalistic, but it has to be procedurally fair and correct.
Good luck.............
Electing a Chairperson
Discipline in the Workplace
What is a dismissal?
Different types of dismissal
Procedural & Substantive Fairness
The Transgression
The Investigation
Evidence in Disciplinary Hearings
Witness Statements
Compiling the Charge Sheet
Employee representation in hearings
The Notice of Disciplinary Hearing
The participants in the hearing
Summary of steps in a formal hearing
Procedure for a Formal Disciplinary Hearing
A step-by-step guide for the Chairperson
The verdict and finding
Preparation is important, but executing is even more so. It does'nt have to be too legalistic, but it has to be procedurally fair and correct.
Good luck.............
Does an employee have the right to be promoted???
Promotion can become a very emotional issue in the workplace.
Most employees strive for recognition in the form of a promotion and the increase in salary, status and benefits related to such a promotion. It is especially so when that employee has been eagerly awaiting the perceived long overdue promotion, as recognition for years of loyal and hard labouring service.
When the employer promotes another employee or an external candidate to the position, he often lands up in the CCMA with an unfair labour practice dispute and a very disgruntled employee.
Section 186(2) determines that an “unfair labour practice” is any unfair act or omission by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
In Department of Justice v CCMA & others (2004) 13 LAC 1.11.6 it was found that the LRA does not create a right to be promoted.
Unless there is some agreement or law giving the employee this right, the employee’s expectation to be promoted constitutes a dispute of “interest”.
However, the employer has the obligation in terms of section 186(2) to act fairly towards the employee in the selection and promotion process, but apart from that, it is the prerogative of the employer whom he intends to appoint.
In this sense, because section 186(2) gives a legal right to a fair labour practice, a dispute concerning whether the conduct of an employer relating to promotion is an unfair labour practice or not, is a dispute of right and not a dispute of interest, which can be taken to the CCMA or Bargaining Council.
This should however not be confused with the fact that there is no right to be promoted, but only a right to be treated fairly in the process of promoting or appointing employees to a position.
In SAMWU obo Mzamo / City of Cape Town (2009) 18 SALGBC 6.9.8, the applicant claimed that the failure of the respondent to short-list him for a second round of interviews was unfair.
He had already been found unsuitable for the position in a first round of interviews.
The Commissioner found that this was not a placement or promotion dispute but simply a complaint about not being short-listed. He found that there was no reason why the employer would have been obliged to shortlist the applicant for the second round of interviews.
Most employees strive for recognition in the form of a promotion and the increase in salary, status and benefits related to such a promotion. It is especially so when that employee has been eagerly awaiting the perceived long overdue promotion, as recognition for years of loyal and hard labouring service.
When the employer promotes another employee or an external candidate to the position, he often lands up in the CCMA with an unfair labour practice dispute and a very disgruntled employee.
Section 186(2) determines that an “unfair labour practice” is any unfair act or omission by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
In Department of Justice v CCMA & others (2004) 13 LAC 1.11.6 it was found that the LRA does not create a right to be promoted.
Unless there is some agreement or law giving the employee this right, the employee’s expectation to be promoted constitutes a dispute of “interest”.
However, the employer has the obligation in terms of section 186(2) to act fairly towards the employee in the selection and promotion process, but apart from that, it is the prerogative of the employer whom he intends to appoint.
In this sense, because section 186(2) gives a legal right to a fair labour practice, a dispute concerning whether the conduct of an employer relating to promotion is an unfair labour practice or not, is a dispute of right and not a dispute of interest, which can be taken to the CCMA or Bargaining Council.
This should however not be confused with the fact that there is no right to be promoted, but only a right to be treated fairly in the process of promoting or appointing employees to a position.
In SAMWU obo Mzamo / City of Cape Town (2009) 18 SALGBC 6.9.8, the applicant claimed that the failure of the respondent to short-list him for a second round of interviews was unfair.
He had already been found unsuitable for the position in a first round of interviews.
The Commissioner found that this was not a placement or promotion dispute but simply a complaint about not being short-listed. He found that there was no reason why the employer would have been obliged to shortlist the applicant for the second round of interviews.
Friday, February 19, 2010
Who's the Boss?? - illegal worstoppages holding you to ransom??
So you have this incredibly large order to satisfy and the customer's full of shhhh........t. You are working your butt off to meet the deadline because you know, there's plenty more business coming your way if you can handle this order. For some reason your staff is aware of this, because you place pressure on them and behave totally crazy when it comes to this particular customer and his order. " BIG MISTAKE."
All of a sudden, some creepy demands are made. it could be a condition of service you previuosly didn't grant to them, a bonus they claim they should've received or a supervisor or manager they're unhappy with. When you promise to sort it out, they demand immediate attention for it and , wait for it............................... WORKSTOPPAGE........... in the middle of the order and the only way to guarantee completion is to negotiate with them before they cause real damage.
Unfortunately in some cases it's always a case of us and them............................. this is a recipy for crap. The road to a successful relationship with your staff is non existent. Dont waste time looking for it. It's not there. Trust me, I work in this business and I am yet to find a perfect marriage between employers and employees. There is a way to minimise the impact though.
Workshop your staff . It helps when they are aware that you are aware. This reduces the blow of any sort of strike action or workstoppage dramatically. Since people dont believe in grievance procedure based on the fact they may be victimised, they act out like bad apples infecting everyone else so that thier issue, the under lying problem, is addressed among all the other crap that was raised. Although some cases may be genuine, it is difficult to distinguish between real and bogus issues.
So, dont let your business be held to ransom by unscrupulous staff. Get professional help. It doesnt have cost you an arm or a leg.
All of a sudden, some creepy demands are made. it could be a condition of service you previuosly didn't grant to them, a bonus they claim they should've received or a supervisor or manager they're unhappy with. When you promise to sort it out, they demand immediate attention for it and , wait for it............................... WORKSTOPPAGE........... in the middle of the order and the only way to guarantee completion is to negotiate with them before they cause real damage.
Unfortunately in some cases it's always a case of us and them............................. this is a recipy for crap. The road to a successful relationship with your staff is non existent. Dont waste time looking for it. It's not there. Trust me, I work in this business and I am yet to find a perfect marriage between employers and employees. There is a way to minimise the impact though.
Workshop your staff . It helps when they are aware that you are aware. This reduces the blow of any sort of strike action or workstoppage dramatically. Since people dont believe in grievance procedure based on the fact they may be victimised, they act out like bad apples infecting everyone else so that thier issue, the under lying problem, is addressed among all the other crap that was raised. Although some cases may be genuine, it is difficult to distinguish between real and bogus issues.
So, dont let your business be held to ransom by unscrupulous staff. Get professional help. It doesnt have cost you an arm or a leg.
EMPLOYERS, DONT BE FOOLED......... PREPARE FOR DISCIPLINARY HEARINGS
Recently I have presided over a number of disciplinary hearings and the one thing that always surprise employers is how their staff plead. Why anyone would incriminate themselves is a mystery to me, but hey......... it happens sometimes. some employers find themselves out of a case shortly after the hearing started. Let's not talk about credible witnesses. More of a surprise when your witness turns out to be completely useless.
And now for my all time favourite.......... I didnt know. or. I wasnt aware. or. I dont remember.
Unawareness and ignorance is a common and favourite among staff. However, after you fired them, they suddenly have more understanding of the law than your entire HR dept. put together. And when the fax with the CCMA referral form prints out your fax machine, the cold shiver of an ill affordable claim is the first thing that jumps to mind and you ask yourself, Now What??? And the damn hearing is on a date that you cant afford to be away from work. Can you believe it?
Stay tuned for brilliant solutions...................... till later..
And now for my all time favourite.......... I didnt know. or. I wasnt aware. or. I dont remember.
Unawareness and ignorance is a common and favourite among staff. However, after you fired them, they suddenly have more understanding of the law than your entire HR dept. put together. And when the fax with the CCMA referral form prints out your fax machine, the cold shiver of an ill affordable claim is the first thing that jumps to mind and you ask yourself, Now What??? And the damn hearing is on a date that you cant afford to be away from work. Can you believe it?
Stay tuned for brilliant solutions...................... till later..
Thursday, February 18, 2010
My Opinion
So.........let's examine the reasons for the two articles on legal representation at internal disciplinary hearings.
The level of stress an employee endure during a disciplinary hearing is usually extremely high. I know of lots of cases where admission of guilt was chosen by the employee just to escape the wrath of an intimidating chairperson and a lying initiator, " as some people put it".
As much as representation bring a certain amount of confidence, it also comes with a degree of arrogance. It is, in my humble opinion, a very emotional affair. To further legalize the environment with legal represenation might just defeat the objective. So i say, the simpler, the better. However, presiding officers should be able to distinguish between cases and should ideally allow for representation when necessary. Instead, employee's take drastic measures to appeal to the Labour Court to ensure that their rights are not infringed upon.
It's a crazy merry go round if you dont have your ducks in a row. Good luck to those who think they have it covered. But what about those who may not be able to make an appeal to the Labour Court???? Unless the employer intend on getting rid of the employee and is just following the process because it has to be done. Until there is a clear cut rule in the Act, we suffer the brunt of this unlawful certainty or lawful uncertainty.
The level of stress an employee endure during a disciplinary hearing is usually extremely high. I know of lots of cases where admission of guilt was chosen by the employee just to escape the wrath of an intimidating chairperson and a lying initiator, " as some people put it".
As much as representation bring a certain amount of confidence, it also comes with a degree of arrogance. It is, in my humble opinion, a very emotional affair. To further legalize the environment with legal represenation might just defeat the objective. So i say, the simpler, the better. However, presiding officers should be able to distinguish between cases and should ideally allow for representation when necessary. Instead, employee's take drastic measures to appeal to the Labour Court to ensure that their rights are not infringed upon.
It's a crazy merry go round if you dont have your ducks in a row. Good luck to those who think they have it covered. But what about those who may not be able to make an appeal to the Labour Court???? Unless the employer intend on getting rid of the employee and is just following the process because it has to be done. Until there is a clear cut rule in the Act, we suffer the brunt of this unlawful certainty or lawful uncertainty.
Legal representation at disciplinary hearings
WORKERS IN DISCIPLINARY HEARINGS MAY HAVE LEGAL REPRESENTATION AT THEIR SIDE
The following article was published in Beeld, 01 December 2004 and written by Philip de Bruin
No government institution, company or other organisation may henceforth summarily refuse workers to be assisted by legal representatives in disciplinary investigations against workers.
This “radical amendment to the labour law follows a unanimous verdict by a full bench of five appeal judges on 30 November 2004. Even if the disciplinary code of any institution explicitly stipulates that no one may have legal representation during disciplinary hearings, no chairman of a disciplinary committee may on the strength of such a stipulation refuse a worker to appoint his own legal representative for a disciplinary hearing.
Appeal judges C. Patel, P. Streicher, M. Navsa, B. Jafta and V. Ponan ruled that presiding officials at disciplinary hearings must in future give hearing to and consider a worker’s request for legal representation in terms of common law and the Promotion of Fair Administrational Conduct Act, “with a view to give the worker a fair disciplinary hearing”.
If the chairman still refuses the worker to appoint his/her own legal representative, the worker has the option to approach the high court with a request for an urgent interdict for the disciplinary hearing to be discontinued until he/she (the worker) has a chance to take the chairman’s decision to the high court.
The appeal court has given general indications which must be regarded as important by a chairman in his decision-making about legal representation. This includes the nature of the complaints against the worker, the nature of the complexity of the factual and legal questions in the proceedings, the possible seriousness of the consequences of finding the worker quilty and any disadvantage that may be suffered by the employer if legal representation is allowed.
Mr. Jan Stemmet, one of the foremost labour experts and joint-chairman of the Law Society of South Africa, says in his reaction to the verdict that all companies and government institutions of which the disciplinary codes stipulate that legal representation at disciplinary hearings is not allowed, “will have to look very, very carefully at their codes today.” “The verdict could make disciplinary hearings very complicated, drawn out and expensive for companies. If the worker has legal representation, the company too, for example, will clearly have to have legal representation. The old system of disciplinary hearings, as South Africa knows it, has been defeated by this verdict. It is radical and significant ruling based on the fairness of disciplinary hearings. I suspect that the verdict may spread to other judicial labour institutions where legal representation is not currently allowed.”
The following article was published in Beeld, 01 December 2004 and written by Philip de Bruin
No government institution, company or other organisation may henceforth summarily refuse workers to be assisted by legal representatives in disciplinary investigations against workers.
This “radical amendment to the labour law follows a unanimous verdict by a full bench of five appeal judges on 30 November 2004. Even if the disciplinary code of any institution explicitly stipulates that no one may have legal representation during disciplinary hearings, no chairman of a disciplinary committee may on the strength of such a stipulation refuse a worker to appoint his own legal representative for a disciplinary hearing.
Appeal judges C. Patel, P. Streicher, M. Navsa, B. Jafta and V. Ponan ruled that presiding officials at disciplinary hearings must in future give hearing to and consider a worker’s request for legal representation in terms of common law and the Promotion of Fair Administrational Conduct Act, “with a view to give the worker a fair disciplinary hearing”.
If the chairman still refuses the worker to appoint his/her own legal representative, the worker has the option to approach the high court with a request for an urgent interdict for the disciplinary hearing to be discontinued until he/she (the worker) has a chance to take the chairman’s decision to the high court.
The appeal court has given general indications which must be regarded as important by a chairman in his decision-making about legal representation. This includes the nature of the complaints against the worker, the nature of the complexity of the factual and legal questions in the proceedings, the possible seriousness of the consequences of finding the worker quilty and any disadvantage that may be suffered by the employer if legal representation is allowed.
Mr. Jan Stemmet, one of the foremost labour experts and joint-chairman of the Law Society of South Africa, says in his reaction to the verdict that all companies and government institutions of which the disciplinary codes stipulate that legal representation at disciplinary hearings is not allowed, “will have to look very, very carefully at their codes today.” “The verdict could make disciplinary hearings very complicated, drawn out and expensive for companies. If the worker has legal representation, the company too, for example, will clearly have to have legal representation. The old system of disciplinary hearings, as South Africa knows it, has been defeated by this verdict. It is radical and significant ruling based on the fairness of disciplinary hearings. I suspect that the verdict may spread to other judicial labour institutions where legal representation is not currently allowed.”
Outside legal representation at Disciplinary Hearings
Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee's alleged misconduct
"The employee should be allowed the assistance of a trade union representative or fellow employee." It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.
In the case of NUMSA obo Thomas Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union's claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.The draft CCMA Guidelines: Misconduct Arbitrations states under item 60.3 that "An employee is not entitled to be represented by a trade union official (who is not employed by the employer) or a legal practitioner.
"Under item 70 these draft guidelines state that "If a disciplinary code permits the right to legal representation, this should be afforded. "However, neither the LRA nor the Code recognise an automatic right to legal representation."In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Schoon Godwilly Mahumani (Case number 478/03 SCA.
Report by Dr Elize Strydom distributed January 30 2005) the employee was refused the right to an external legal representative. The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing.
The employer appealed against this judgement to the Supreme Court of appeal which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that clause 2.8 of the employer's disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances.
This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition on legal representation.
"The employee should be allowed the assistance of a trade union representative or fellow employee." It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.
In the case of NUMSA obo Thomas Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union's claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.The draft CCMA Guidelines: Misconduct Arbitrations states under item 60.3 that "An employee is not entitled to be represented by a trade union official (who is not employed by the employer) or a legal practitioner.
"Under item 70 these draft guidelines state that "If a disciplinary code permits the right to legal representation, this should be afforded. "However, neither the LRA nor the Code recognise an automatic right to legal representation."In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Schoon Godwilly Mahumani (Case number 478/03 SCA.
Report by Dr Elize Strydom distributed January 30 2005) the employee was refused the right to an external legal representative. The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing.
The employer appealed against this judgement to the Supreme Court of appeal which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that clause 2.8 of the employer's disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances.
This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition on legal representation.
Wednesday, February 17, 2010
Dont get caught off-side by the World Cup
Regarding the article below, some people seem to forget that the World Cup is happening during the june School holiday period and that only an extra week will be added to an already existing 3 week holiday.
I wonder what parents did with their kids during previous June holidays. As for employer's concerns: Make it interesting and put a TV in the work area.............................
It may surprise some employers that production levels may not be affected at all. In fact let's find out what happens in other countries with employers.
Thius should be interesting to explore.........................
I wonder what parents did with their kids during previous June holidays. As for employer's concerns: Make it interesting and put a TV in the work area.............................
It may surprise some employers that production levels may not be affected at all. In fact let's find out what happens in other countries with employers.
Thius should be interesting to explore.........................
Published by SA Labour Guide - an interesting read
Employers in the tourism, hospitality and related sectors are well advised to seriously ponder several critical World Cup-related issues.
For one thing, with private and public schools to close during the World Cup, many employees, especially those who are parents, will want time off from work.
In fact some public sector employers are encouraging their employees to take time off. They are actually incentivising their workforce to take annual leave by offering them an additional, ex-gratia, leave day for every four days of annual leave taken during June and July.
Employers taking the annual leave route should advise their employees opting for annual leave during this period to advise their managers accordingly and book their leave early to facilitate operational arrangements.
Companies operating in the tourism, hospitality, manufacturing, retail and related sectors are set to boom during the World Cup. Employers in these sectors are unlikely to incentivize their workforce to take annual leave during this period, and instead might consider offering flexible working hour arrangements to their workforce to allow employees the opportunity to watch matches at home or at theme parks or stadiums.
In such an event, employees’ productivity should be properly monitored to avoid abuse and to ensure that such practices are not counterproductive.
While flexibility could bolster workplace morale, employers must take care that they avoided allegations of discrimination. For example, employers must offer flexible working arrangements to both men and woman and not assume that only males would be interested in watching and attending matches. Also, employers should be careful not to give preference to South African fans over other nationalities.
Where employees are going to be required to be on site during matches, employers should consider making facilities available to employees to watch matches on their desktops and laptops via the internet.
Obviously regard must be had to the employer’s e-mail or internet policies. Exceptions should be communicated to employees, drawing their attention to the monitoring of their internet usage during this period; that any abuse of the company’s IT systems will not be tolerated, and if such abuse occurs it may result in disciplinary action being taken.
In some organisations the IT infrastructure might not be able to handle live audio streaming. If so, employees should be reminded that live audio streaming could compromise the company’s IT systems and, where applicable, is prohibited in terms of the company’s IT policy.
If the employer makes alternative arrangements for employees to watch matches, advise them – for example, big screen televisions being placed in communal areas.
For one thing, with private and public schools to close during the World Cup, many employees, especially those who are parents, will want time off from work.
In fact some public sector employers are encouraging their employees to take time off. They are actually incentivising their workforce to take annual leave by offering them an additional, ex-gratia, leave day for every four days of annual leave taken during June and July.
Employers taking the annual leave route should advise their employees opting for annual leave during this period to advise their managers accordingly and book their leave early to facilitate operational arrangements.
Companies operating in the tourism, hospitality, manufacturing, retail and related sectors are set to boom during the World Cup. Employers in these sectors are unlikely to incentivize their workforce to take annual leave during this period, and instead might consider offering flexible working hour arrangements to their workforce to allow employees the opportunity to watch matches at home or at theme parks or stadiums.
In such an event, employees’ productivity should be properly monitored to avoid abuse and to ensure that such practices are not counterproductive.
While flexibility could bolster workplace morale, employers must take care that they avoided allegations of discrimination. For example, employers must offer flexible working arrangements to both men and woman and not assume that only males would be interested in watching and attending matches. Also, employers should be careful not to give preference to South African fans over other nationalities.
Where employees are going to be required to be on site during matches, employers should consider making facilities available to employees to watch matches on their desktops and laptops via the internet.
Obviously regard must be had to the employer’s e-mail or internet policies. Exceptions should be communicated to employees, drawing their attention to the monitoring of their internet usage during this period; that any abuse of the company’s IT systems will not be tolerated, and if such abuse occurs it may result in disciplinary action being taken.
In some organisations the IT infrastructure might not be able to handle live audio streaming. If so, employees should be reminded that live audio streaming could compromise the company’s IT systems and, where applicable, is prohibited in terms of the company’s IT policy.
If the employer makes alternative arrangements for employees to watch matches, advise them – for example, big screen televisions being placed in communal areas.
Monday, February 15, 2010
Why create this blog?????
Since many people are afraid to ask their employers and a forum of this nature is not easily accessible, this blog, I think, should do the trick to help those in need of advice and no bul.......t.
Post your questions here for me to answer. I will be brief and as helpful as possible.
Just check out what I am able to do for you below.
Labour Disputes
Dispute of Rights
Dispute of Interest
Disciplinary Hearings
Wage Negotiations
Retrenchment Package Negotiations
Collective Bargaining
Staff & Management Training ( Labor Relations Issues – Prevention through Education)
CCMA Representation
Conflict Resolution (Management & Staff)
Benefits
* Representation in 11 official languages
* 15 years Union / Labour Relations expertise
* Unlimited queries. Specialists in LRA.
* Post questions on our blog and get free advice
* Visit labourrelationsissues.blogspot.com
* Specialized & accredited UWC – Ditsela Workers’ College training expertise
Call or email Mr. N. Kellerman - 021 3722 433
0711 904 636
niesaamk@vodamail.co.za
Post your questions here for me to answer. I will be brief and as helpful as possible.
Just check out what I am able to do for you below.
Labour Disputes
Dispute of Rights
Dispute of Interest
Disciplinary Hearings
Wage Negotiations
Retrenchment Package Negotiations
Collective Bargaining
Staff & Management Training ( Labor Relations Issues – Prevention through Education)
CCMA Representation
Conflict Resolution (Management & Staff)
Benefits
* Representation in 11 official languages
* 15 years Union / Labour Relations expertise
* Unlimited queries. Specialists in LRA.
* Post questions on our blog and get free advice
* Visit labourrelationsissues.blogspot.com
* Specialized & accredited UWC – Ditsela Workers’ College training expertise
Call or email Mr. N. Kellerman - 021 3722 433
0711 904 636
niesaamk@vodamail.co.za
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