Cape Labour Blog
Labour Consulting Services
BE SPECIFIC WHEN DRAFTING NOTICE TO ATTEND DISCIPLINARY HEARINGS
Jan 30th
Employers frequently complete disciplinary hearing charge sheets poorly without properly outlining the specific components of the allegations being levelled against an employee.
Employers often accuse employees of acts of misconduct which, in fact, cannot be proved. An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required. The amount of information contained in misconduct “charge sheet” is normally referred to as the “particularisation”. This frequently leads to disputes which focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations against him/her so that they are in a position to properly prepare a defence.
If an employee is of the view that the employer has not furnished them with enough information in charge sheet to prepare a defence, such employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
In short, Schedule 8 of the LRA informs parties that charges should be levelled “in a form and language that employees can reasonably understand”.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
A DUTY TO REPORT MISCONDUCT?
Jan 17th
An employee may well be obliged to report knowledge of dishonest activities on the part of his or her co-workers. If an employer knows that some fellow employees are stealing from the employer, for instance, the employee’s failure to share that knowledge with the employer may well lead to the employee’s dismissal.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
EMPLOYEES WHO BRING THE COMPANY NAME INTO DISREPUTE BY THEIR ONLINE ACTIONS
Nov 21st
South African law similarly recognises the right of an employer to take action against an employer where the employee’s private actions impact on the employment relationship.
The employer may discipline an employee who cause harm to the company by making remarks about the company, its products, service or staff on social media networks.
The test used to establish whether the employer may take action is whether the conduct hampers the on-going employment relationship. Employers should ensure that employees appreciate the bounds of acceptable online conduct. A clear social media policy should be introduced and communicated to all staff, advising what employees may not communicate to third parties.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.z
DEALING WITH ABSENTEEISM
Nov 21st
Absenteeism of any kind, and the handling thereof, is based on the operational difficulties it causes and the ability of the organisation to cope with them. If the employee’s absenteeism is causing real operating problems, then the employee could be dismissed even though he or she still has a sick leave available in his or her cycle.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
A VALID MEDICAL CERTIFICATE
Nov 21st
In addition to being issued and signed by medical practitioner, the BCEA importantly requires that the certificate should specify that the employee was too ill, or injured, to work for the entire period of his or her absence.
A valid medical certificate should also:
1. Show the date on which it was issued.
2. Show the date on which the employee was examined.
3. Stipulate whether the medical practitioner or registered nurse performed a medical examination on the employee or whether the employee communicated his symptoms to the medical practitioner or registered nurse.
4. Describe in general terms only the broad nature of the illness or affliction.
5. Contain the issuer’s name, qualifications, address and a contactable telephone number.
If a certificate does not meet the above criteria then you would, in our opinion, be entitled to refuse to pay the employee for any ill health absenteeism until such time as he or she presented you with a ‘proper’ medical certificate.
If an employee is absent for ill health reasons for not more than two consecutive days in an eight week period, or not more than two occasions during an eight week period, then he or she is not required to produce a medical certificate in order to be paid for such absences.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
RETRENCHMENT/RETIREMENT TAX BENEFITS
Nov 21st
Those facing retrenchment or retirement can look forward to better tax breaks from this year, with retrenchment or retirement tax-free payments increasing from R30, 000.00 in a lifetime to R315, 000.00, effective from the 2012 tax year.
In other words, all retrenchment payments, plus retirement payments, plus lump sum payments from a pension or retirement fund on retirement or death are tax-free until the combined total of such payments reaches R315, 000.00. Once this limit is reached, all future payments are taxed in accordance with the rates applicable to lump sum payments from a pension or retirement fund on retirement or death.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
DERIVATIVE MISCONDUCT
Nov 15th
An employee’s failure to disclose information that would assist the employer’s investigation amounted to derivative misconduct.
In cases where derivative misconduct is alleged, an employer must show that the employee knew or could have acquired knowledge of the misconduct and that the employee unreasonably failed to disclose this knowledge to the employer.
An employee’s reticence in disclosing helpful information may lead to the interference that the employee has something to be justified in instituting disciplinary proceedings derived from an employee’s failure to offer reasonable assistance in detecting those actually responsible for misconduct and through his silence make himself guilty of a derivative violation of trust and confidence.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
HOSTILE OR ADVERSE WITNESSES
Nov 15th
A party to an arbitration hearing may experience a “hostile/adverse witness” dilemma.
A hostile witness is a witness who acts towards the party for whom they are testifying, in a manner which is inconsistent with their earlier preparatory preparation. A hostile witness may also be a witness who is antagonistic towards the party for whom they are testifying.
When faced with a hostile witness who gives a different account of events to that which he had previously given, a party may elect to request of the arbitrator that the witness be declared “hostile”. The benefit of a witness being declared hostile is that the representative is then entitled to cross-examine their own (hostile) witness.
“In declaring someone a hostile witness, you are in effect allowing the representative of the party for whom the witness is testifying to cross-examine the witness as if he is now a witness for the opposing party”. The benefits of being in a position to cross-examine a hostile witness are, of course, that leading questions can now be put to such witnesses.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
CCMA HAS BEEN IN EXISTENCE FOR 15 YEARS
Nov 11th
The Commission for Conciliation, Mediation and Arbitration (CCMA) marked 15 years of existence.
The primary role is to settle labour disputes amicably which contributes toward labour peace. The CCMA has an admirable record that reflects the reality that the demand and need for CCMA services is increasing steadily. This is unlikely to change, given the latest dismal projections about economic growth and job creation prospects.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
NON-RENEWAL OF FIXED-TERM CONTRACT
Nov 8th
The notion of a reasonable expectation calls for an objective inquiry to determine whether the facts proved would lead a reasonable employee to expect renewal. Facts relevant to that inquiry include the terms of the contract, the past practice of renewals, the nature of the work, the reason for fixed-term, any assurance that the contract would be renewed and failure to give reasonable notice of non-renewal of the contract. The applicant’s contract had been extended twice, and on each occasion he had been given advance notice. The respondent’s explanation for the decision not to renew might not have been particularly compelling.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za