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.”
Thursday, May 20, 2010
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
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