Thursday, February 25, 2010

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.............

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.

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.

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..

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.

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.”

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.

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.........................

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.
Hoew much leave am I supposed to get for the year???

Zarina Isaacs

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.

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Benefits
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