Labour Consulting Services
Archive for May, 2010
EMPLOYERS RIGHT TO CHANGE EMPLOYEES BENEFITS
May 24th
It is a myth that an employer may not amend the terms and conditions of employment. We have many queries from our clients asking us whether medical aid, car allowances, travel allowances, etc. can be changed.
These changes can take place if the employer can show that there is a good reason for the change and if the employer can also show that there has been a properly constituted discussion with regard to these changes. In essence the employers conduct in effecting the change must show that the employers discretion is fairly exercised. If the discretion is exercised unfairly then the employee has the unfair labour practise right and may refer the matter to the Commission for Conciliation Mediation and Arbitration (CCMA), if however the employer has consulted and has explained why the change is necessary then the employee’s only right is to bargain for the increase and if unhappy may withhold his/her labour only. There is no right to go to the CCMA over the provision of benefits.
In order to understand this properly employers must understand that the benefit can be tampered with and indeed lowered for good reason and if proper discussion had ensued beforehand.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
HOW TO CONDUCT YOUR OWN ARBITRATION
May 24th
Since November 1996, when our new Labour Relations Act was brought into being, we saw the start of the Commission for Conciliation Mediation and Arbitration (CCMA) and since then we have seen complaints going to this Commission at the rate of 500 per day. The majority of these complaints have been about single unfair dismissals and the largest sector affected by this, has been the retail sector. In many cases, the employer cannot be represented by a lawyer and even in some cases where they could be represented by a lawyer, such representation would be far too expensive.
It is therefore necessary for each and every business owner (employer) to understand how the Arbitrations work and how to properly defend themselves at the CCMA and Bargaining Councils. Every employer must understand that the CCMA conducts a dispute resolution on a two-stage basis, i.e. the first hearing is conciliation where a commissioner tries to mediate between the two arguing parties, but if these mediation fails, the matter goes on to arbitration. At the arbitration, the Commissioner (Arbitrator) makes a final decision and this decision could adversely affect the business. There is no appeal against this decision and only in very limited circumstances, a review. In terms of Labour Legislation, the Arbitrators have enormous powers and they have in certain circumstances, the ability to reinstate staff into their old positions and even give them awards, sometimes equal to 12 months’ salary (or any lesser amount the Arbitrator might deem fair). If in fact the employer has dismissed for a good reason and has followed the proper process effecting the dismissal, then there is no reason why the employer should lose at the arbitration level at the CCMA. The employer merely has to understand the process and have a small understanding of the rules of the process and effectively bring proper evidence to the CCMA. In certain circumstances, there might be technical problems and then it would be worthwhile going to a lawyer for advice and even representation.
However, the majority of cases are reasonably straightforward and simple and the employer has the ability to represent him or herself. It is necessary to ensure that prior to the arbitration, to ascertain exactly what the nature of the dispute is about. This can be done at the conciliation stage. It is also necessary to ensure that all the paperwork that has led to the dismissal is properly copied and distributed to the witness, the employee (or his or her representative), the arbitrator and one for you. Once you have four copies of all the paperwork, including documents such as warnings, notification to attend disciplinary hearing, minutes of disciplinary hearing and findings of disciplinary hearing, this will make the arbitrator’s job far easier in finding that the dismissal was both procedurally and substantively fair. 2. /
It is also necessary to ensure that all the witnesses you use at the disciplinary hearing are present at the arbitration as you cannot be heard to say that you will bring the witness at a later stage or only if necessary. An employer must remember that you have to show the arbitrator that there was a good reason to bring the employee to a disciplinary hearing and that you followed a very fair process at that disciplinary hearing. It might even be necessary for you to bring the chairperson of that disciplinary hearing to the arbitration.
You can do no harm by getting some advice prior to your going to the CCMA for the Arbitration. Invariably, a two-minute discussion with a labour lawyer or an official at the Department of Labour can give you some tips as to how you would approach that particular case. These tips need not cost you anything and will certainly save you a lot of trouble at the CCMA.
It is also useful to check with the CCMA on a regular basis whether the case has been given a case number and if so, whether there has been allotted a time and date for a hearing. There is a Case Management number, a Call Centre, at 0861-161616 which should help you to ascertain where about in the system your case is. If you are not present for your case, this could lead to a negative award against the employer.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
ELECTRICAL STORM IN LABOUR RELATIONS
May 24th
We have been bombarded from firms large and small, across the country, as to whether they need to pay their staff when there is a black-out. The question is obviously loaded and clearly the desired answer is not always forthcoming.
The electrical outages have created havoc in the employment arena. Obviously the losses incurred by small and large businesses will be documented in the future but these losses in fact are compounded by the ongoing salary and wage bills for unproductive workers. The Labour Law has not had to deal with events of this nature and innovative Trade Unions and Employers are striking agreements in order to alleviate some of the losses incurred by both the workers and management. These agreements have been innovative in the sense that they are trying to ensure that management have a minimum payment to make as workers are not expected to be at the workplace without payment. Agreements struck are recorded in writing and signed by the parties. Invariably these agreements are entered into between management and unions and not individual workers but there is nothing stopping small businesses meeting with their staff on a one to one basis and trying to fashion agreements covering outages. Many of these agreements put minimum times that the workers would have to be paid if they did report for duty and these agreements ensure that workers are able to leave the premises if the outages expect to be in excess of 2 hours.
Obviously the management of Eskom would be well advised to ensure that communication of future outages is properly structured. A clear example of this would be a factory being advised that a particular day would affect them and they could advise their staff not to come in on that day and not incur the travelling expenses and wage bill. The inability of Eskom at this stage to properly structure their own administration has led to a lot of heartache and greater losses than is absolutely necessary.
There appears to be a rumour amongst small business owners that if their staff are unable to perform their duties because of power outages then they need not be paid. This is wrong and in fact is criminal. Staff who are present at work are entitled to be paid regardless of whether the electricity is on or off. There are certain Bargaining Councils which have structures within their agreements that allow management to give one shift notice of the fact that they will not need their workers for the next shift. However, if this agreement is not in force then an agreement between management and workers should be entered into and reduced to writing and signed by both parties.
There are various types of collective agreements and although the Labour Relations Act does not distinguish between different types of agreements, the agreements are obviously different in accordance with the circumstances they wish to govern. In essence an agreement governing the down time because of electrical outages would obviously refer to wages and conditions of employment and would refer to a particular period of time. These agreements are very different to recognition agreements between employers and Trade Unions and are in fact known as substantive agreements because they deal with terms and conditions of employment such as salaries during a particular period. It is recommended that all employers get together with their staff whether they employ one person or a thousand. They need to discuss and finalise an agreement which governs their particular set of circumstances when they are faced with a power cut. In order to avoid possible Dismissals for Operational Requirements the staff must be able to take part in a process where they can structure the staffing requirements over this power shortage period to ensure that everyone is able to have a fair approach to the resolution of conflicting needs and wants.
The parties can agree after negotiations that a shift system would be introduced allowing staff to go off shift in the electrical blackout. These agreements can have an expiry date on them so that the parties can come back to the table to negotiate variations, changes and new agreements. Obviously if a Trade Union is active at the workplace the first port of call would be to engage with the shop stewards who would ensure that union organisers are brought into the discussions. Should a union sign a collective agreement with management then all the members of that union would be bound by that agreement.
The agreement struck should contain clauses to ensure that if there is a dispute in terms of the agreement or a dispute with regard to the interpretation of the agreement then that would be approached on a structural basis. Any disagreement would be referred to Arbitration either privately or through the Commission for Conciliation Mediation and Arbitration and structured dispute resolution clause within the agreement would have certain time limits attached to it. It is furthermore recommended that agreements of this nature would outlaw industrial action such as strikes and lock outs and resolutions would be governed by adjudication by a third party. To have industrial turmoil coupled with the electrical outages would be counter productive.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
THERE IS A GENERAL RULE THAT EVERY EMPLOYEE HAS TO BE HEARD BEFORE A DECISION OF DISMISSAL IS TAKEN
May 24th
In the field of employment law, the general rule applies that before any decision is made, the employee must be heard. The Latin phrase, audi alteram partum, means both sides must be heard. When in doubt, it is always better to have a disciplinary hearing or at least a discussion before a decision is made.
There is however an exception to this rule. When, in certain circumstances, a decision is made without affording the other person affected, an opportunity, it normally does not necessarily make the decision invalid if the opportunity is afforded at a later stage.
In other words, the employer can cure the deficient hearing through appeal or a new hearing or through a hearing in the first instance. There must be no disregard for the fundamental principles of justice and that it can be corrected.
In certain urgent or emergency situations, a decision can be made, thereafter a disciplinary hearing should be heard to either validate the decision or to reverse it. Obviously, if there is no urgency, the Courts have often said that natural justice has to be observed beforehand.
In an interesting Court Case, Semenya & Others v CCMA, Labour Appeal Court said that the opportunity to state the case after the dismissal was acceptable. Facts of the hearing were pointed out to the employer who then decided to have a proper hearing to revisit the decision. The employee refused such an opportunity and she did so at her own peril. Although the employee said that this offer was merely lip service, the Court found that an offer of a fair hearing chaired by an independent chairman of the employee’s choice, would not have been rejected. This case has been recorded in many other judgments and although it is a risky set of circumstances, a mistake such as an inadequate hearing or no hearing at all, can be rectified. Obviously the disciplinary hearing to be held after the decision to dismiss, has to chaired by someone who had nothing to do with the original decision and who was completely independent.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
BOSSES “DRESS UP” REASONS FOR SACKING PREGNANT WOMEN
May 24th
In an article Sarah Womack in the Telegraph it appears that England has exactly the same problem we have in the South African Labour Legislation. According the to Equal Opportunities Commission there are numerous instances where the employers have chosen other reasons to try and dismiss employees who report that they are pregnant.
In this day and age most employers are fully aware that to dismiss simply for being pregnant is illegal in terms of all the Labour Legislation.
In a period of six years there were 1000 pregnancy related unfair dismissal claims registered in England and Wales. Although we haven’t kept statistics in South Africa it appears that we have much higher numbers. In England the average compensation award for the women dismissed was approximately 6 months salary but in South Africa one must note that in terms of Section 187 of the Labour Relations Act No. 6 of 1995 the dismissal of an employee because of pregnancy, intended pregnancy or any reason related to a pregnancy is deemed to be automatically unfair and the onus shifts to the employer to prove way the dismissal was fair. The Courts have taken this so seriously the Legislation has specifically stated that the claim could be for anything up to 2 years salary. As of late we have noticed our Courts coming down very hard on employers who have discriminated against pregnant employees.
Unfortunately pregnant women have on occasion hidden behind this pregnancy when there have been other reasons for the dismissal and this has created enormous problems for the employer.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
DISCIPLINARY HEARINGS – WHO IS COMPETENT TO CHAIR?
May 24th
A vexed question of law often has been – who can chair the disciplinary hearing. Obviously, any person who has been involved in the investigation has knowledge of the facts and of the “charges”, is disqualified from being the Chairperson. The cornerstone of competence of the Chairperson is one of dependence and any sort of bias might be interpreted in favour of the employee and the Chairperson should recuse him or herself. The Chairperson should not have been involved in the allegations, the dispute, the investigation or any of the facts leading up to the disciplinary hearing.
Furthermore, the chairperson should be chosen in terms of the Disciplinary Code of the business and if there is no Disciplinary Code, it should be someone who could be deemed to be impartial. There is nothing wrong in appointing an outsider, especially one who is qualified in Industrial Relations or Labour Law. Remember, if the procedure or findings are challenged by the employee concerned, then that chairperson might have to appear at the Arbitration to justify the procedure and/or recommendations. The chairperson should be warned that this appearance at the CCMA or Bargaining Council flows on from his or her acceptance of such a brief. Over and above this, the recommendations given by the chairperson should be done in writing and such recommendations should be furnished to both the employee and the company. These recommendations will be subject to close scrutiny and if the dismissal or otherwise is challenged, then these recommendations become part of the bundle of documents used at Arbitrations.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
RETRENCHMENTS – REFUSAL TO ACCEPT REASONABLE ALTERNATIVE OFFER
May 24th
In terms of Section 189 of the Labour Relations Act, the Employer is obliged to try and find alternative positions for the people who are occupying positions that will in due course become redundant. If there is a reasonable and similar position to the one held by the employee affected, and this position is offered at a similar salary, then the refusal to accept same will negate the necessity to pay a severance payment to that employee.
The refusal must be justifiable and reasonable in order to lay claim once again to the severance payment. The Labour Court has come forward on a few occasions to state that there is no necessity to pay any severance payment (even the one week’s pay per completed year of service) if in fact the offer of alternative employment was fair and reasonable in all the circumstances. Please note that even a transfer from one region to another could be deemed to be a fair and reasonable offer.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
REFERRALS TO CCMA AND BARGAINING COUNCILS
May 24th
After an employee has left your employ he/she normally has 30 days in which to refer the matter either to the Commission for Conciliation, Mediation and Arbitration or the relevant Bargaining Council. Obviously this referral could be done after the 30 days but then the employee has to apply to the Commission to ask them to condone the late referral. This Application is known as a Condonation Application and must be done in writing and a copy must be sent to the employer. Normally a copy of this condonation application is sent with the referral and you, as the employer, need to carefully read this application for condonation and if you are unhappy with any part of it, it is incumbent upon you to oppose this condonation application. The opposition to the condonation application must be done in writing and by way of an Affidavit and sent to the Commission with a copy being sent to the ex-employee. This opposition to the condonation application must be made within 14 days after receipt and should contain reasons as to why the merits of the employee’s case are not good. Should anyone receive such an application with a condonation application it would be worthwhile to take advice as invariably we are successful in destroying the entire application by the opposition to the condonation.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
PRESENTATION OF ARBITRATION
May 24th
It should be noted that as Employers, they are largely responsible for presenting their own Arbitrations. Invariably, we as lawyers are allowed to come to the Arbitrations and to represent our clients. However, on some occasions, when this is not done, the Arbitrator makes a decision on the evidence that is presented before him or her. This decision is not appealable and is final and binding. On very few occasions, the Employer, if unhappy, can take the matter on review to the Labour Court. It should be noted that review is not an appeal and the only “bite at the cherry” is allowed at the Arbitration. It does not help to say that you have witnesses that could prove certain events. The witness must be present. It must be remembered that the Arbitration is the last venue. It is also important for the employer to understand that invariably they bear the onus, i.e. they must start giving their evidence first and the evidence must be full and clear. It must also be understood that this evidence should cover and oppose every eventuality that the employee might state, even if that eventuality is a lie. Employees invariably have Union representation who will certainly test the employer’s case from every angle. It is recommended that each and every employer obtain legal advice before entering into an Arbitration no matter how trivial the case might be.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
THE FINALITY OF ARBITRATIONS
May 24th
We often receive calls from our clients after the Arbitration advising us that the award of the Arbitrator has been negative and they want to appeal same. The arbitration award is final and binding and cannot be appealed. The award can be taken to the Labour Court on Review but a Review means there are very limited grounds and invariably these Reviews are not successful.
Arbitrations must be treated seriously and must be handled as if you are entering into a Court Case. The preparations must be carefully done and all the paperwork and witnesses must be present. Remember, there is only “one bite at the cherry”. It does not help to say that we have witnesses to prove this fact or that fact, unless these witnesses are present, willing and able to give that testimony there and then at the Arbitration. Over and above this it is vital to ensure that all the documentary evidence is carefully collated into a Bundle, properly numbered and duplicated so that this very Bundle would be referred to during the evidence, enabling the Arbitrator, Witness and Cross-Examiner to refer to the same page at the same time. We spend many hours preparing for Arbitrations so as to ensure that there is no room for error and that even the most negative Arbitrator would be able to assess our client’s position without any room for error. Obviously in our preparations we do come across technical legal points which we exploit to the maximum. Remember Arbitrations are serious and not a game. Negative Arbitration Awards are time consuming, costly and destructive.
In an Arbitration involving the Bafokeng Platinum Mine the Employer did not call additional witnesses to authenticate the Clocking-in System. This failure led to the Employer loosing the case and creating an enormous upset at the workplace. The Employer took this on review and because the Employer had not properly presented its case at the Arbitration the Review was unsuccessful, causing further financial damages. It was stated by the Judge that the Bafokeng Mine was a large Corporation and could easily have conducted the Arbitration properly. One cannot blame the Arbitrator for not advising the Mine to call further witnesses.
This case clearly outlines the duty of care to be taken by Employers when facing the finality of Arbitrations. Be warned!
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za