Archive for July, 2010

Every employee therefore has the right to join – or not to join a union, and if the employee does join a union, to participate in its lawful activities.
This right extends to ‘every employee’, including applicants for employment. It follows that no employer may forbid an employee to join a trade union on any ground, even if membership of a trade union is incompatible with the employee’s status or function as an employee.

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

An employer who suspects an employee is guilty of misconduct can hold a disciplinary hearing to establish whether or not the employee is guilty and, if he is, to decide on an appropriate penalty. However, sometimes it takes time to properly investigate the incident. If the issues are serious, employers may want to suspend the employee pending the outcome of the disciplinary hearing.

There are minimum standards to ensure fair dealing between employer and employee.

First, the employer must have a justifiable reason to believe the employee is engaged in serious misconduct.

Second, there must be an objectively justifiable reason to deny the employee access to the workplace based on the integrity of a pending investigation or another relevant factor that would place the investigation or the interests of affected parties in jeopardy, i.e if there is a reason to believe the employee will interfere with witnesses or endanger their safety or wellbeing.

Third, the employee must be given an opportunity to state a case before the employee makes a final decision to suspend. This does not have to be a formal hearing.

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

One of the principal obligations of an employee to a contract of employment is to render his / her services to the employer, from the agreed date and for the duration of the contract. This obligation requires that the employee present himself / herself at his / her place of work during the times specified in the contract. Any unauthorized absence (no medical certificate or acceptable reason provided) from work during the specified working hours, if continuous, and depending on the circumstances of the absence, will constitute either absenteeism or desertion. The elements which will influence whether a period of absence from the workplace will constitute absenteeism or desertion are:

• The length of and reason for the absence, and
• The intention of the employee (by considering the circumstances surrounding the absence):

- Was an attempt made to contact management?
- Was alternate employment sought?
- What did fellow employees feel was his/ her intention?
- What did his / her family say to questions on the whereabouts of that employee?

(a) Absenteeism

With absenteeism, the intention of the employee is to at some stage return to his/ her place employment. The seriousness of absenteeism will depend primarily on two factors:

• The length and reason for the absence, and
• The nature of the job being done by the employee (translated into the actual or potential effect which this absence could / did have on the business.)

As a general rule, the longer the period of absence, the more serious is such an absence.
Where the effect of an employee’s absence from work was such that it either resulted in the organisation suffering undue losses or could jeopardise the jobs of other employee’s, then dismissal would be appropriate. Where the absence is such that it amounts to an inconvenience to the organisation, but is not “life –threatening” to the organisation, then dismissal would not be an appropriate sanction. A more appropriate sanction would be written or final written warning, depending on the facts surrounding a particular dismissal.

(b) Desertion

Desertion refers to the situation where an employee leaves his / her place of employment, without permission, with the intention of not returning. General principle an employee could be charged with desertion if he / she was absent from work, without notice, for more than four working days, and management could show that his/ her intention was not to return to work, assuming that a number of precautionary steps had been taken.
(i) The employer must make reasonable attempts to find out what has happened to
the employee. This would include, where practical, sending someone to the
employee’s house to enquire after his/ her whereabouts.

• Alternatively, a registered letter is sent to the employee’s address, where
he/she is informed that his/her conduct amounts to desertion. He / she is
requested to report to the employer on a certain day at a designated time
to attend a disciplinary hearing concerning his/ her conduct.

(ii) The employer should hold a hearing to give the employee an opportunity to
explain his/ her behaviour. The employee would then be disciplined based
on the outcome of the hearing.

(c) The seriousness of desertion

As is the case with absence from the workplace, as a general rule the longer the period of desertion, the more serious the offence.

For further information on any labour related matters, you can contact Bernard Reisner:

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za
Website: www.capelabour.co.za

What is a training layoff?

A training layoff is a temporary suspension of work of a worker or group of workers that is used for training purposes; workers remain employed during the training layoff period and are paid a training allowance; participation in the training layoff scheme is voluntary and is an alternative to retrenchment; training is flexible but linked to the skills needs of the employer; the scheme is aimed at positioning workers and employers to take advantage of the next economic upturn and to save jobs and enterprises where possible.

Who qualifies for a Training Layoff?

Workers earning up to R180 000.00 per year and who are facing possible retrenchment; businesses that are in distress due to the economic crisis and that may benefit from the short term relief and be able to re-absorb the affected workers at the conclusion of the training layoff.

What is the CCMA’s role in the Training Layoff Scheme?

All requests to participate in the Training Layoff Scheme must be made via the CCMA; The CCMA recommends participation in the Scheme and facilitates the conclusion of a Training Layoff Agreement; The CCMA monitors and reports on Training Layoff Agreements to the Department of Labour; SETA’s facilitate the provision of Training.

How do i access the Training Layoff Scheme?

Complete a request to participate in the Training Layoff Scheme form and submit to the CCMA. If you and the other party have reached a written agreement on a training layoff, include it with the request. The Training Layoff Scheme may become an option during the facilitation or conciliation process, whereby the facilitator will assist the parties to reach an agreement on participation in the scheme.

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