Employers are sometimes faced with misconduct but no evidence to prove it as the witnesses refuse to come forward or to testify. The common law duty to act in good faith towards the employer flies out the window and the employer is faced with the difficult decision as to whether it is going to start charging witnesses for failing to report misconduct or to come forward with information and evidence. Employers in the retail industry faces huge losses to theft or industrial espionage and the guilty party or parties are never identified although many are aware of the misconduct, but they are either sharing in the proceeds or are just not prepared to come forward with information to assist the employer in identifying the thieves.
In Foschini Group v Maidi & others (2009) 18 LAC 1.25.2; [2010] 7 BLLR 689 (LAC) five employees (the full staff compliment in that store) were charged with “failure to secure assets of the company” after substantial stock losses were detected at the clothing store where they had been employed. The employer could not prove that they were in fact stealing the stock, however they were dismissed in their absence for “Gross negligence by failing to take proper care of company property under their control resulting in a financial loss of R 207 000 as well as an irretrievable breakdown in the trust relationship. The stock losses reached a level in excess of 28% (some 1 553 items over a period of six months) which was contributed to their lack of commitment towards the company. The company conducted a thorough investigation by sending a manager to the store in question, who conducted the investigation himself, which preceded and founded his report.
The Commissioner in the arbitration proceedings (and as confirmed by the LAC) looked at various cases where the question of collective misconduct or sanction was considered. Grogan is of the view that, in the context of employees in a small store, who are unable to point to some cause for the stock loss, the species of misconduct upon which the company relies when it calls members of an entire staff to book for stock loss, although collective in nature, would be better described as ‘team misconduct. The team is responsible for maintaining the stock and in the case of ‘team misconduct’ the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible. It should be noted therefore that the principle is not that some (the innocent) must suffer because the employer cannot pin point the guilty. In this case, all are held responsible for not complying with the rule and not acting in good faith in executing their duties. It therefore lies in each employee’s individual culpability for the failure of the group to attain the performance standard set by the employer.
In Chauke & others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) [also reported at [1998] JOL 3076 (LAC), the Labour Appeal Court held that an employer, who suffered continuously under industrial sabotage perpetrated by unidentified employees, was entitled to dismiss all the employees on the shop floor where the damages occurred, on the basis that the employees must have known who the perpetrators were and failed to come forward and identify them. Again, the employees made them guilty of a special misconduct – breach of trust and duty of care towards the employer.
Although the principle in question causes problems in light of the principle of fairness in our law, Cameron JA in the Chauke case formulated two lines of justification for a fair dismissal in such circumstances. The first is where an employee, who is part of the group of perpetrators, is under a duty to assist the employer in bringing the guilty to book. The second is where an employee has or may reasonably be supposed to have information concerning the guilty but fails or refuse to disclose same. His or her failure to come forward with the information may itself amount to misconduct as the relationship between employer and employee is in its essentials one of trust and confidence, and, even at common law, conduct clearly inconsistent with that essential warranted termination of employment. The LAC found failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal.”
The learned Judge of Appeal further held that this derived justification is wide enough “to encompass those innocent of the main misconduct, but who through their silence make themselves guilty of a derivative violation of trust and confidence.
Wednesday, October 27, 2010
Tuesday, October 26, 2010
Retrenchments and Misconduct Dismissals don’t Mix
When companies suffer financial losses the ripple effect can be tsunami-like. Investors can be ruined, employees can lose jobs and heads can roll. It is normal for employers to retrench employees after serious losses have been incurred because the employer cannot afford to pay their salaries. It can also happen that those executives responsible for managing the company are disciplined for allowing the financial losses to occur. However, employers must be careful not to mix up the retrenchment of an executive with his/her dismissal for misconduct such as, for example, dereliction of duty.
Employers must be equally careful not to discipline executives for ulterior motives. For example, where the board of directors is under pressure from shareholders to explain the company’s losses they may look for scapegoats in order to relieve this pressure.
Often therefore, the CEO or MD lands on the carpet in front of the board of directors. Sometimes the accusing finger is in fact pointed in the right direction but just as often the wrong head rolls because the culprits have conspired to scapegoat an easy target or someone outside the main clique.
Very frequently, by the time the scapegoat has been able to recover from the shock of the false allegations and has perhaps even been able to throw some doubt on the allegations against him/her, the damage has been done. That is:
* the culprits have closed ranks and testimony is hard to come by
* important documentary evidence has been doctored or destroyed
* the powers that be have decided that the real culprit is not expendable
* it has been agreed who will have to be sacrificed
* acrimony and backstabbing have destroyed the working relationship and the scapegoat no longer wants to stay with the company or other organisation.
Scapegoating can result not only in the unnecessary loss for the employer of key skills but can also tarnish the reputation of the employer. From the employee’s point of view his/her name will have been muddied and his/her career prospects may have been damaged. However, in certain circumstances employees can block attempts at scapegoating.
For example, in the case of Van As vs African Bank Ltd (2005, 3 BLLR 304) the employer suffered serious financial losses and hence instituted disciplinary proceedings against its Chief Executive Officer who was suspended pending a hearing. Before the hearing was convened the employer and the CEO signed a retrenchment agreement in which it was agreed that the CEO would leave the company for reasons of operational requirements. Despite this the employer decided to proceed with the disciplinary hearing.
The CEO applied to court for an order interdicting the employer from dismissing him for misconduct. He contended that:
* The employer could not discipline him after a retrenchment agreement had been concluded
* The employer was merely trying to scapegoat him for the losses incurred by the bank.
The Court found that, by entering into the retrenchment agreement the employer had waived its right to dismiss the CEO for misconduct. It ordered the employer to desist from such dismissal and to adhere to the terms of the retrenchment agreement. It also awarded costs against the employer.
The cost of this matter to the employer must have been high because not only did it have to bear its own legal costs it also had to pay those of the employee and waste the valuable time on the court case.
This could have been avoided had the employer made proper use of the appropriate experts to:
* assess the matter holistically
* investigate whether the CEO could really be blamed for the losses and whether there was sufficient proof of this
* decide whether discipline or retrenchment was most appropriate in practical terms and from a legal point of view
* help decide on a strategy that would satisfy the employer’s practical needs but at the same time avoid infringing the law.
Employers must be equally careful not to discipline executives for ulterior motives. For example, where the board of directors is under pressure from shareholders to explain the company’s losses they may look for scapegoats in order to relieve this pressure.
Often therefore, the CEO or MD lands on the carpet in front of the board of directors. Sometimes the accusing finger is in fact pointed in the right direction but just as often the wrong head rolls because the culprits have conspired to scapegoat an easy target or someone outside the main clique.
Very frequently, by the time the scapegoat has been able to recover from the shock of the false allegations and has perhaps even been able to throw some doubt on the allegations against him/her, the damage has been done. That is:
* the culprits have closed ranks and testimony is hard to come by
* important documentary evidence has been doctored or destroyed
* the powers that be have decided that the real culprit is not expendable
* it has been agreed who will have to be sacrificed
* acrimony and backstabbing have destroyed the working relationship and the scapegoat no longer wants to stay with the company or other organisation.
Scapegoating can result not only in the unnecessary loss for the employer of key skills but can also tarnish the reputation of the employer. From the employee’s point of view his/her name will have been muddied and his/her career prospects may have been damaged. However, in certain circumstances employees can block attempts at scapegoating.
For example, in the case of Van As vs African Bank Ltd (2005, 3 BLLR 304) the employer suffered serious financial losses and hence instituted disciplinary proceedings against its Chief Executive Officer who was suspended pending a hearing. Before the hearing was convened the employer and the CEO signed a retrenchment agreement in which it was agreed that the CEO would leave the company for reasons of operational requirements. Despite this the employer decided to proceed with the disciplinary hearing.
The CEO applied to court for an order interdicting the employer from dismissing him for misconduct. He contended that:
* The employer could not discipline him after a retrenchment agreement had been concluded
* The employer was merely trying to scapegoat him for the losses incurred by the bank.
The Court found that, by entering into the retrenchment agreement the employer had waived its right to dismiss the CEO for misconduct. It ordered the employer to desist from such dismissal and to adhere to the terms of the retrenchment agreement. It also awarded costs against the employer.
The cost of this matter to the employer must have been high because not only did it have to bear its own legal costs it also had to pay those of the employee and waste the valuable time on the court case.
This could have been avoided had the employer made proper use of the appropriate experts to:
* assess the matter holistically
* investigate whether the CEO could really be blamed for the losses and whether there was sufficient proof of this
* decide whether discipline or retrenchment was most appropriate in practical terms and from a legal point of view
* help decide on a strategy that would satisfy the employer’s practical needs but at the same time avoid infringing the law.
Thursday, October 21, 2010
Insubordination - Not always dismissible
The Code of Good Practice: Dismissal (the Code) serves as a guideline for all those presiding over disputes related to discipline and dismissal.
Employers would be mistaken if they were to interpret the contents of the Code too simplistically. For example, item 3(4) of the code lists some examples of offences that might merit dismissal even in the absence of prior warnings.
Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.
Despite the inclusion of “insubordination” in the Code a possible justification for dismissal employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal.
In fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even constitute misconduct!
In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot.
The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded.
However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction.
As the employee had already received a final warning for insubordination she was fired.
The employee took the matter to private arbitration and stated that that her relationship with the Pilot had always been difficult because, she believed, he might have been suspicious of female Tug Masters.
She claimed further that the Pilot’s instruction had been unreasonable. The employer denied this.
The arbitrator found, amongst other things, that:
• In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
• Decisions of Pilots as regards boarding operations are final
• The instruction given by the Pilot had been both lawful and reasonable
• However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
• According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
• Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
• While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
• Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
• Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
• The Pilot’s demeanour during the arbitration indicated that his view of female Tug Masters contributed to his attitude and all the events of the case
• The dismissal was substantively unfair
• The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.
The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case.
Employers would be mistaken if they were to interpret the contents of the Code too simplistically. For example, item 3(4) of the code lists some examples of offences that might merit dismissal even in the absence of prior warnings.
Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.
Despite the inclusion of “insubordination” in the Code a possible justification for dismissal employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal.
In fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even constitute misconduct!
In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot.
The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded.
However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction.
As the employee had already received a final warning for insubordination she was fired.
The employee took the matter to private arbitration and stated that that her relationship with the Pilot had always been difficult because, she believed, he might have been suspicious of female Tug Masters.
She claimed further that the Pilot’s instruction had been unreasonable. The employer denied this.
The arbitrator found, amongst other things, that:
• In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
• Decisions of Pilots as regards boarding operations are final
• The instruction given by the Pilot had been both lawful and reasonable
• However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
• According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
• Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
• While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
• Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
• Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
• The Pilot’s demeanour during the arbitration indicated that his view of female Tug Masters contributed to his attitude and all the events of the case
• The dismissal was substantively unfair
• The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.
The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case.
Tuesday, October 19, 2010
Extenuating Circumtances
Dont Ignore Extenuating Circumstances - Ivan Israelstam
Even when an employer finds an employee guilty of a serious offence this does not automatically entitle the employer to fire the employee.
There are numerous possible remedies for misconduct which could include:
• Dismissal – the most severe corrective action
•Demotion – provided that the employee is given the choice of dismissal or demotion
• Suspension without pay - provided that the employee is given the choice of dismissal or suspension
• A warning or final warning – which must be very carefully worded
• Training – where lack of skill/knowledge is the cause of the problem
• Treatment – for example where addiction or alcoholism is an important factor
Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:
• the nature and seriousness of the misconduct
• aggravating circumstances
• the employee’s personal circumstances
• the employee’s length of service
• the employee’s disciplinary record
• extenuating circumstances.
Extenuating circumstances are those related to the case itself that might render the misconduct less serious.
For example, where an employee refuses to obey an instruction from a manger due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction.
This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.
Where such circumstances exist it would be folly for employers to ignore them.
This is because CCMA and bargaining council arbitrators expect the level of discipline to be in line with the circumstances of the case.
Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.
For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:
• The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
• the employee had used the vehicle due to an emergency at the workplace
• this was an extenuating circumstance
• the dismissal was therefore too harsh
• the employee was to be reinstated.
In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather.
A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:
Even when an employer finds an employee guilty of a serious offence this does not automatically entitle the employer to fire the employee.
There are numerous possible remedies for misconduct which could include:
• Dismissal – the most severe corrective action
•Demotion – provided that the employee is given the choice of dismissal or demotion
• Suspension without pay - provided that the employee is given the choice of dismissal or suspension
• A warning or final warning – which must be very carefully worded
• Training – where lack of skill/knowledge is the cause of the problem
• Treatment – for example where addiction or alcoholism is an important factor
Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:
• the nature and seriousness of the misconduct
• aggravating circumstances
• the employee’s personal circumstances
• the employee’s length of service
• the employee’s disciplinary record
• extenuating circumstances.
Extenuating circumstances are those related to the case itself that might render the misconduct less serious.
For example, where an employee refuses to obey an instruction from a manger due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction.
This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.
Where such circumstances exist it would be folly for employers to ignore them.
This is because CCMA and bargaining council arbitrators expect the level of discipline to be in line with the circumstances of the case.
Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.
For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:
• The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
• the employee had used the vehicle due to an emergency at the workplace
• this was an extenuating circumstance
• the dismissal was therefore too harsh
• the employee was to be reinstated.
In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather.
A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:
Employees always arriving late at work - Are you to blame?
Most late-coming problems experienced by employers are due to the employer’s own fault. Both the principles of sound management and the Labour Relations Act (LRA) require that employers use firm, swift, fair and graduated disciplinary measures to deal with late-coming and other employee misconduct before dismissing the offenders.
In other words every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing.
The hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate.
The employer should not:
• Close a blind eye to repeated acts of late-coming
• And then, when the employer finally loses patience, lose his/her cool and fire the employee.
The employer should also not give warnings and then fail to act on them.
In the case of NCP vs SACWU (1998, 6 BALR 769) the employee was a locomotive driver who arrived late on a number of occasions. He eventually received a final warning for lateness.
Thereafter he was again, on several occasions, very late by many hours). Despite this, he was only mildly reprimanded or warned or not disciplined at all. Later, he was late yet again and was dismissed.
The arbitrator found the dismissal to be unfair. It appears that the reasons for this startling decision were:
• The employee had initially not been strongly disciplined for lateness after having received a final warning. This led the employee to believe that the final warning had no effect.
• Under these circumstances it was wrong to fire the employee who had been led to believe, by the employer’s inconsistent and confusing conduct, that lateness and repeated late-coming were not serious offences
• The employer had abdicated its duty to take appropriate corrective steps in respect of the employee’s late-coming problem
• The employer had therefore waived its right to dismiss the employee.
Unless there are compelling mitigating circumstances the next logical step after issuing a final warning is normally dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
For example, in the case of Transwerk vs SATAWU (2000, 8 BALR 993), the employee had received a final warning for late coming. He arrived late for work again and was dismissed on the grounds of his final warning.
The arbitrator found the dismissal to be too harsh and reinstated the employee.
In other words every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing.
The hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate.
The employer should not:
• Close a blind eye to repeated acts of late-coming
• And then, when the employer finally loses patience, lose his/her cool and fire the employee.
The employer should also not give warnings and then fail to act on them.
In the case of NCP vs SACWU (1998, 6 BALR 769) the employee was a locomotive driver who arrived late on a number of occasions. He eventually received a final warning for lateness.
Thereafter he was again, on several occasions, very late by many hours). Despite this, he was only mildly reprimanded or warned or not disciplined at all. Later, he was late yet again and was dismissed.
The arbitrator found the dismissal to be unfair. It appears that the reasons for this startling decision were:
• The employee had initially not been strongly disciplined for lateness after having received a final warning. This led the employee to believe that the final warning had no effect.
• Under these circumstances it was wrong to fire the employee who had been led to believe, by the employer’s inconsistent and confusing conduct, that lateness and repeated late-coming were not serious offences
• The employer had abdicated its duty to take appropriate corrective steps in respect of the employee’s late-coming problem
• The employer had therefore waived its right to dismiss the employee.
Unless there are compelling mitigating circumstances the next logical step after issuing a final warning is normally dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
For example, in the case of Transwerk vs SATAWU (2000, 8 BALR 993), the employee had received a final warning for late coming. He arrived late for work again and was dismissed on the grounds of his final warning.
The arbitrator found the dismissal to be too harsh and reinstated the employee.
THOSE 24-HOUR NOTICES -
PUBLISHED BY SA LABOUR GUIDE
Written by Advocate Estelle Botha
Many an employer has had to contend with the 24-hour notice problem. What usually happens is an employee is appointed and then trained at a cost to the employer.
A contract of employment is signed which normally has a clause stating that a month’s notice should be given at termination of the contract by either party.
Then one morning the employee gives notice, in writing or not, and they want to leave the next day.
Now the employer sits with a number of problems of which at least one is that they must replace the employee.
The greater frustration is that all that well spent money on training and development is down the proverbial drain. What now?
Let us look at the Basic Conditions of Employment Act of 1997 to ensure what the legislature had in mind. Section 37 deals with notice periods at termination and states:
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-
(a)one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c)four weeks, if the employee-
(i)has been employed for one year or more; or
(ii)is a farm worker or domestic worker who has been employed for more than six months.
These statutory stipulations are all very well – but where does this leave the employer when the employee has simply walked out on 24 hours notice ?
In NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2007) 28 ILJ 1223 (LAC) the union employed an employee who left them without giving notice
They wanted the Labour Court to determine that this was unfair labour practices perpetrated against them.
The court did not agree with this point of view.
The court confirmed that the one recourse for employers is to sue the employees under common law for breach of contract.
The legislature did not give the employer any recourse against such employees who do not honour the contracts – at least there is no recourse in terms of labour legislation
.
The option is for the employer to sue and issue summons against these employees, for any damages that the employer is able to quantify in terms of the employees breach of contract.
24 Hours Notice: Does the employee pay?
Judging by e-mails that I receive, there seems to be a new practice creeping in among employees who wish to terminate their employment contract.
In most cases employees are bound to provide the employer with 1 month written notice. Sometimes it is stipulated in the employment contract merely as 1 month or 4 weeks, and in other cases it is stipulated as 1 calendar month
.
Whatever the case, the undesirable practice that is creeping in, is that employees are ignoring this contractual requirement, and are either tendering 24 hours of notice, or in some cases are tendering the contractual notice period in writing and but then walk out and simply do not return to work
.
The employer is then left stranded without an employee to do the work in the vacated post, and the employee in fact is now in breach of contract.
It has always in the past been the practice for the employer to deduct one month salary from the final payout due to the employee, but in many cases the employee tenders 24 hours notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any
.
The question is, how illegal is this practice of the employee walking out on 24 hours notice?
The answer is that it is totally illegal - nowhere in the BCEA is their any provision allowing an employee to terminate his employment contract on 24 hours notice.
The employer must handle this in terms of breach of contract.
In order to protect themselves, employers must stipulated in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
The problem is, and especially with lower paid employees, the amount to be claimed will in many cases be far less than the amount of the legal costs incurred in the recovery, and in these cases the employer will end up by simply ignoring the matter and are losing out.
It is far wiser for the employer to protect himself in a written contract. There are those employers who never provide their employees with any form of written contract, and these employers will have a problem should the above occasion arise.
Written by Advocate Estelle Botha
Many an employer has had to contend with the 24-hour notice problem. What usually happens is an employee is appointed and then trained at a cost to the employer.
A contract of employment is signed which normally has a clause stating that a month’s notice should be given at termination of the contract by either party.
Then one morning the employee gives notice, in writing or not, and they want to leave the next day.
Now the employer sits with a number of problems of which at least one is that they must replace the employee.
The greater frustration is that all that well spent money on training and development is down the proverbial drain. What now?
Let us look at the Basic Conditions of Employment Act of 1997 to ensure what the legislature had in mind. Section 37 deals with notice periods at termination and states:
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-
(a)one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c)four weeks, if the employee-
(i)has been employed for one year or more; or
(ii)is a farm worker or domestic worker who has been employed for more than six months.
These statutory stipulations are all very well – but where does this leave the employer when the employee has simply walked out on 24 hours notice ?
In NATIONAL ENTITLED WORKERS UNION v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2007) 28 ILJ 1223 (LAC) the union employed an employee who left them without giving notice
They wanted the Labour Court to determine that this was unfair labour practices perpetrated against them.
The court did not agree with this point of view.
The court confirmed that the one recourse for employers is to sue the employees under common law for breach of contract.
The legislature did not give the employer any recourse against such employees who do not honour the contracts – at least there is no recourse in terms of labour legislation
.
The option is for the employer to sue and issue summons against these employees, for any damages that the employer is able to quantify in terms of the employees breach of contract.
24 Hours Notice: Does the employee pay?
Judging by e-mails that I receive, there seems to be a new practice creeping in among employees who wish to terminate their employment contract.
In most cases employees are bound to provide the employer with 1 month written notice. Sometimes it is stipulated in the employment contract merely as 1 month or 4 weeks, and in other cases it is stipulated as 1 calendar month
.
Whatever the case, the undesirable practice that is creeping in, is that employees are ignoring this contractual requirement, and are either tendering 24 hours of notice, or in some cases are tendering the contractual notice period in writing and but then walk out and simply do not return to work
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The employer is then left stranded without an employee to do the work in the vacated post, and the employee in fact is now in breach of contract.
It has always in the past been the practice for the employer to deduct one month salary from the final payout due to the employee, but in many cases the employee tenders 24 hours notice the day after payday, and in many cases there is no leave pay due and thus the employer is left high and dry with no means of recovering his losses, if any
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The question is, how illegal is this practice of the employee walking out on 24 hours notice?
The answer is that it is totally illegal - nowhere in the BCEA is their any provision allowing an employee to terminate his employment contract on 24 hours notice.
The employer must handle this in terms of breach of contract.
In order to protect themselves, employers must stipulated in the employment contract that should the employee terminate the employment contract without tendering the written contractual notice period, then the employer will deduct from the final payment to the employee, an amount equal to the period of notice not given.
By including this as a stipulation in the contract of employment, it becomes part of the agreement between employer and employee, and it becomes a condition of employment which the employee is then legally bound to follow and should he/she not do so, then the employer can make the deduction accordingly.
If this condition is not stipulated in the employment contract, the employer may not deduct any monies from the final payment due to the employee but must pay the employee in full and then sue the employee civilly (in terms of breach of contract) for any damages the employer may wish to recover.
The problem is, and especially with lower paid employees, the amount to be claimed will in many cases be far less than the amount of the legal costs incurred in the recovery, and in these cases the employer will end up by simply ignoring the matter and are losing out.
It is far wiser for the employer to protect himself in a written contract. There are those employers who never provide their employees with any form of written contract, and these employers will have a problem should the above occasion arise.
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