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.................
Tuesday, March 16, 2010
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.
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