Archive for August, 2010

Each case must be decided on its own merits, and the general principles whether dismissal is appropriate should be applied.

Absence from work

Employees are expected to be at their workplaces during working hours, unless they have an adequate reason to be absent. Wilful absence from work constitutes a breach of contract and may justify summary termination of the contract. A distinction is usually drawn between absenteeism, abscondment and/or desertion. Absenteeism, in turn, can be divided into late coming, absences from an employee’s workstation, and absences from the workplace itself for short periods. Abscondment is deemed to have occurred when the employee is absent from work for a time that warrants the inference that the employee does not intend to return to work. Desertion is deemed to have taken place when the employee has actually intimated expressly or by implication that he does not intend to return to work. The longer the period of absence, the more justified an employer will be in terminating the contract. Brief absences from work rarely warrant dismissal.

Disciplinary codes normally treat absenteeism on a graduated scale when it comes to penalties; on the first occasion, the employee is issued with a verbal warning, or counselled; on the second occasion, the employee is given a written warning; on the third, a final written warning. Dismissal is normally justified only if employees fail to heed final warnings. However, in such cases, the employer must still prove that the final absence did in fact amount to absenteeism. The elements of the offence of absenteeism are that the employee must have been absent from work at a time when the employee was contractually obliged to render service, and that the employee had no reasonable excuse for his absence. Some disciplinary codes add a further element to the offence: employees must have failed to inform the employer immediately of the reason for their absence.

Like all offences, absenteeism requires fault on the part of the perpetrator. Employees absent because they are seriously ill or in a coma, or in jail, or because public transport failed to arrive, cannot be said to be at fault. Employees’ who fail to contact their employers during their absence, if they can do so, may find it difficult to persuade their employers that they had good reason to be away. Employees accused of absconding are entitled to be heard before their contracts are terminated, provided that the employer is aware of the employees’ whereabouts, and the employees wish to present their cases.

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

Statutory rights of unions

The LRA confers four statutory rights on ‘sufficiently representative’ unions. These are the rights of access to employers’ premises, to the deduction and payment of union fees, to elect, utilise and train trade union representatives (shop stewards), and to information.

Access to the employer’s premises

The right of access is granted to all registered trade unions that are ‘sufficiently representative’, which in respect of access rights does not mean that it must be a majority union. The legislature accords a right to any office-bearer or officials of a representative trade ‘to enter the workplace in order to recruit members or communicate with members, or otherwise serve members’ interests, and to hold meetings with employees outside their working hours at the employer’s premises.

Collection and payment of union fees

Fees are the lifeblood of any union, for without adequate finances it could not pay officials, hire offices, offer training, or provide any of the many services a union is expected to afford its members. Without written authorisation, any deductions by the employer would be unlawful. Authority to make deductions may be revoked by giving a month’s written notice. However, the employer must continue making and paying over the deductions until the expiry of the notice period. With each monthly remittance the employer must furnish the union with a list of names of the members from whom the deductions have been made, details of the amounts deducted and remitted and the period to which the deductions relate; and copies of any notices of revocation.

Shop stewards

Shop stewards (designated in the LRA as ‘union representatives’) are the infantry of the trade union. These elected officials perform the day to day function of looking after their members’ interests in particular workplaces. Their functions include ensuring that the employer complies with collective agreements and legislation, representing employees in disciplinary proceedings, airing employees’ grievances, and generally acting as a conduit between management and the workforce, and between the workforce and the union itself. No provision is made for shop stewards in workplaces with fewer than ten union members.

Information

Trade unions need information which may be in the possession and fall within the exclusive knowledge of employers not only to bargain effectively. In the first place, a right to the disclosure of information is restricted to majority unions. Secondly, the information an employer is required to disclose must be relevant. Thirdly, employers are not required to disclose legally privileged information, or information which cannot be disclosed by law, or information that is confidential and, ‘if disclosed, may cause substantial harm to an employee or the employer’, or private personal information relating to an employee without the employee’s consent. To justify a refusal to disclose information requested by a union, an employer must prove that it is likely that harm will follow disclosure, and the harm will be ‘substantial’.

Thresholds

The right of access, to stop-order facilities, to elect shop stewards, to obtain leave for office-bearers and to information is accorded only to registered unions. In addition, only registered unions that are sufficiently representative qualify for these rights. The term ‘sufficiently representative’ is not defined in the LRA. In absence of a collective agreement stipulating a threshold, there is no rule of thumb regarding the proportion of members a union should have in the workforce before if should be accorded access and stop-order facilities.

Acquisition of organisational rights

The aspirant union must first notify the employer in writing that it seeks to exercise one or more of the rights conferred by the Act. The notice must be accompanied by a copy of the union’s certificate of registration and must specify the workplace in respect of which trade union seeks to exercise the rights, the membership of the trade union in that workplace, and the facts relied upon to demonstrate that the union is sufficiently representative. The notice must also specify the rights the union hopes to exercise and ‘the manner in which it seeks to exercise those rights’. The notice is a mandatory requirement, and may be disregarded by the employer if it is incomplete. Once a proper notice is received, the employer is bound to meet the union and ‘endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace’. While the employer is bound to meet the union, it is not obliged to conclude an agreement. The following stage provides the inducement: If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the CCMA, which is empowered to assist the parties by conciliation, failing which it may arbitrate. Any union seeking to acquire organisational rights must follow the procedure prescribed by section 21 of the LRA. The references in section 21 to ‘representative unions’ are to those unions which meet the particular thresholds set for the various organisational rights described in
section 12 (access to the workplace), 13 (stop-order facilities), 14 (shop stewards), 15 (paid leave for union officials) and 16 (disclosure of information). To qualify for rights of access and stop order facilities, a union must be at least ‘sufficiently representative’. To qualify for the right to have its shop stewards recognised by the employer, and for the right to information, a union or two or more unions combined must have as members a majority of workers employed in the workplace concerned. On the face of section 21, therefore, the only way unions can acquire organisational rights is through a collective agreement as contemplated in section 21(3) or, failing such agreement, through arbitration.

Bargaining rights

The employer and the employee must ‘endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace’. The collective agreement referred to here is generally known as a recognition agreement, which provides the foundation of most bargaining relationships in the workplace.

Withdrawal of organisational rights

Employers and unions may still conclude recognition agreements privately. And even if the union has decided to follow the section 21 route, there is no need for arbitration if the parties voluntarily conclude a collective agreement under section 21 (3). Most recognition agreements contain termination clauses, which normally provide that the agreement may be terminated on notice by the employer if the trade union’s membership in the particular workplace drops below a certain level.

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

The employer has the right to set reasonable requirements in terms of output and the standard of work required of the employee. If the employee fails to attain the standards set by the employer, the employer is entitled to terminate the contract.
Termination for this reason is generally known as dismissal for incapacity.

Dismissals for incapacity relate the inherent inability on the part of the employee to do the job for which he or she was hired. Dismissals for incapacity are divided into two classes. Into the first class fall those dismissals effected because the employee lacks the skill, knowledge or efficiency to meet the employer’s standards. These dismissals are classified as dismissals for poor work performance. Into the second class of incapacity dismissals fall those in which employees are unable to do their work because of illness or injury. As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in accordance with a fair procedure ie such dismissals must be procedurally and substantively fair.

• The employee should have been aware, or could reasonably have been aware, or could reasonably have been expected to be aware, of the required performance standard;
• The employee was given a reasonable opportunity to meet the required standard;
• Dismissal was an appropriate sanction for not meeting the required standard.
These are the elements for the requirement of substantive fairness.

Awareness of the performance standard

Whether employees were actually aware of a performance standard is a question of fact. However, the code accepts that dismissal for poor work performance may be justified if the employees should reasonably have been aware, of the required performance standard. Relevant considerations include the manner in which the performance standard was conveyed to employees, the nature of the employee’s work and position, and any specific warrantees made by the employee regarding his or her experience, skill and qualifications. A performance standard can be conveyed to employees either by means of general directives, or by ad hoc measures such as warnings and counselling if the employee’s performance becomes deficient. The more warnings an employee has had, and the more guidance that has been given, the less likely it will be that the employee will be able to deny the existence of the standard.

Reasonable opportunity to improve

If employees display shortcomings in performing their duties, fairness requires that those employees should not only be informed that their performance is deficient, and in which respects, but also that the employees should be given an opportunity to improve. The procedure for dismissals for poor work performance requires that the employee should be counselled, monitored and offered assistance before the contract is terminated. Generally, an employer cannot justifiably conclude that dismissal is necessary if the employee could conceivably have met the required standard within a reasonable period.

Appropriate sanction

Dismissal must be an action of last resort. Dismissal is clearly unnecessary if, given a reasonable opportunity and reasonable assistance, the employee can meet the required standard. Nor will dismissal be necessary if the employee could have moved to another position, even if this entails a demotion. In the case of dismissals for poor work performance employers must prove that dismissal is necessary because employees are unable to perform their particular duties.

Procedural fairness

This procedure is designed essentially to inform poor work performers of their deficiencies and to give them an opportunity to improve with proper assistance and guidance. Although a distinction is drawn between probationary employees and others, the procedure required in respect of all employees is similar. After probation, an employee may not be dismissed for poor work performance unless the employer has:

• Given the employee appropriate evaluation, instruction, training, guidance or counselling;
• After a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
• The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter; and
• In the process, the employee should have the right to be heard and to be assisted by a trade union representative or fellow employee.

In short, a fair procedure requires the employee to:

• Carefully appraise the employee’s work performance;
• Counsel and assist the employee before taking further action;
• Monitor the employee’s performance after counselling;
• Warn the employee that he or she might possibly be dismissed if the employee’s performance does not improve;
• Grant the employee a reasonable opportunity to rectify his or her deficiencies ; and
• Give the employee an opportunity to state his or her case before taking the final decision.

Each of these requirements is considered below.

Fair appraisal

A proper appraisal of the employee’s work performance is essential for purposes of proving that the employee failed to attain the required performance standard.
An appraisal serves an important function; not only does it give the employer the chance to assess the employee’s performance, but also to discuss the problems that may have been identified with the employee. The employee’s capability must be objectively assessed in relation to such factors as changes in production techniques, new technology and other factors that might be retarding the employee’s performance. Irrespective of how employees might react to allegations of incompetence, an onus rests on them to co-operate with the employer during the assessment phase.

Initial warning

Employees must be warned before action is taken against them for poor work performance. A warning in this context means a clear indication that the employee’s performance does not meet the standard required by the employer, and clear notice that henceforth the employee’s performance will be monitored.

However, the courts recognise that in certain circumstances warnings or, for that matter, counselling and other preliminaries for defective performance are unnecessary. These are:
• Where the incapacity manifests itself in gross incompetence or unsuitability;
• Where the poor performance results in serious consequences;
• Where the employee is incapable of changing or unwilling to change;
• Where the employee is a senior manager.

The justification for departing from the general principles in these cases is as follows. An act or omission involving gross incompetence or unsuitability crosses the line between incapacity and misconduct. Where the act or omission has serious consequences, the employer cannot reasonably be expected to risk the possibility of a repetition. Unwillingness on the part of employees to co-operate with the employer indicates that the employment relationship has been destroyed, and that no purpose would be served by giving employees further opportunities to reform. Seniority of status indicates that the employees concerned ought to have been capable of judging the employer’s standards for themselves.

Counselling and assistance

Counselling entails discussing the matter with employees with a view to alerting them to their deficiencies, hearing the employees’ explanations, and seeking mutually acceptable solutions to the problems that may have been identified. The purpose of counselling is to motivate the employee to improve, and to alert the employer to remedial steps that may be necessary. Counselling is not a one-way process; the employee should also participate and, if possible, suggest ways in which the problem can be resolved. The extent of assistance in the form of additional tools or support, training or guidance that might be necessary should emerge from the counselling session.

Reasonable opportunity to improve

How much time employees should be given to overcome shortcomings depends on the circumstances. Relevant factors include the nature of the job, the employee’s length of service, past performance, and the employer’s practice in this regard. The test for whether an employee has been given a reasonable opportunity to improve is objective.

Final warning

A final warning in this context bears the same meaning and serves the same purpose as a final warning to alert the employee that one further lapse will result in dismissal. In the incapacity context, the final warning should indicate to employees that according to the latest assessment their performance is still lacking; it should also indicate in which respect performance is deficient, and inform the employee that a hearing will follow a further slip.

Hearing

The hearing that forms the final stage of the incapacity procedure should take the same form as a hearing for a case of misconduct, even though it is strictly speaking not ‘disciplinary’ in nature. To signify the special nature of these proceedings, they are often termed ‘incapacity inquiries’. The purpose of these inquiries is to establish whether the employee is capable of attaining an acceptable standard of work. An employee attending an incapacity inquiry is also entitled to other procedural rights, such as the right to be represented, to cross – examine, to present argument, and to be heard impartially.

Consideration of alternatives

In cases involving poor work performance, the extent of attempts made by the employer to assist the employee is critical to evaluating whether dismissal is the appropriate solution. If the employer has attempted all reasonable possible alternatives, dismissal will be accepted as the only remaining option. The only further issue might then be whether the employer should retain the employee in service in a different position. However, it remains for the employer to demonstrate that the possibility of alternatives was at least considered, and that there were no suitable positions available.

General guidelines for dealing with employees who are unable to perform their work due to illness or injury.

1. Incapacity on the grounds of ill-health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In case of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
2. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response to the allegation of incapacity and be assisted by a trade union representative or fellow employee.
3. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counseling and rehabilitation may be appropriate steps for an employer to consider.
4. Particular consideration should be given to employees who are injured at work or who are incapacitated by work related illness.

The following principles have emerged from South African case law involving dismissals for incapacity, arising out of illness or injury:

• The employer must ascertain whether the employee is capable of performing the work for which he or she was employed;
• If employees are unable to fully perform their normal duties, the extent of their incapacity, and its likely duration, must be established;
• The employer is then obliged to investigate whether the employee’s duties can be adapted to accommodate the disability;
• If employees cannot be placed in their former position, their employers must ascertain whether alternative work can be found for them, even if at reduced remuneration.
Only once these steps are taken, will dismissal of an injured or sick employee be deemed substantively fair.

The nature of the incapacity

The incapacity hearing must arise from ill health or injury.

Ascertaining whether the employee is capable of doing the job

The employer is required to determine the nature and severity of the employee’s incapacity and the employee’s prognosis. Management’s duty is to properly acquaint itself with the employee’s medical condition. Whatever the cause of the incapacity, the onus rests on the employer to prove that the employee is in fact incapacitated. Employers are entitle to request employees to undergo medical examinations, but cannot compel them to do so. Testing for HIV/AIDS, for example, is expressly forbidden except with the consent of the Labour Court. If employees refuse to undergo a medical examination, their employers must take their decision on the available evidence. Medical incapacity can also be proved by testing whether the employee is in fact capable of performing the tasks attached to his job.

The seriousness of the incapacity

How serious must employee’s illness or injury be before their employers can justifiably dismiss them? The code draws a distinction between temporary absences due to illness or injury and those that endure for a time that is ‘unreasonably long’ in the circumstances. Dismissal is in principle permissible in case of repeated absences, even if they are for medical reasons covered by medical certificates. However, in such cases employees must still be counselled and consulted. When an employee’s absence can be deemed ‘unreasonable long’ depends on the circumstances. These include the importance of the employee’s job, the length employee’s service, the ease with which the employee can be replaced, the financial capacity of the employer to make arrangements to replace the absent employee, the prospects of recovery, and the effect of the employee’s absence on other employees.

Alternative / adapted employment

Possible alternatives to dismissal include adapting employee’s current duties so that they are able to perform them in spite of their disabilities, providing employees with reasonable assistance and/or equipment to help them cope with those duties, or finding employees alternative work with which they can cope notwithstanding the disability. If the latter course is adopted, it is acceptable to reduce the employee’s remuneration to that normally attached to the alternative position.

When termination is fair

In summary, then, it will be fair to dismiss employees for incapacity if:
• The employees have been counselled, and their medical conditions and the problems arising from it have been discussed with them;
• The employees’ medical conditions make it impossible for the employees to perform their normal duties;
• The employees’ prognosis are poor;
• The employees have had a fair opportunity to contest the employer’s conclusion about their medical conditions and prognoses;
• The employees’ working conditions cannot be adapted, or alternative work is not available.

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

Sexual harassment may be described as persistent, unsolicited and unwanted sexual advances by one person to another. The code of good Practice on Sexual Harassment gives examples of conduct that may amount to sexual harassment. This ranges from physical contact, through verbal forms such as innuendoes, suggestions, hints and comments with sexual undertones, sex-related jokes or unwelcome graphic comments made in their presence or directed at them, inappropriate inquiries about a person’s sex life, unwelcome gestures, indecent exposure and the unwelcome display of sexually explicit pictures and objects.

‘Quid quo pro’ harassment occurs when a superior ‘undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal salary increment or other benefit of an employee or job applicant in exchange for sexual favours’. Quid pro quo harassment does not necessarily entail an explicit promise of favours. An indirect suggestion that employees might be prejudiced if they deny sexual favours is sufficient. For example a senior employee’s remark that he was the ‘final authority and that the complainant could complain to ‘no-one else’ about his conduct was found to carry a sufficiently clear innuendo to amount to quid pro quo harassment.

If disciplinary action is taken against an employee for sexual harassment, the employer must prove that the employee was guilty of that offence and hold a proper disciplinary inquiry.

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

The prohibition against competition by employees with their employers has its roots in the common law requirement that an employee devote his time, energy and skills to furthering the interests of the employer’s business. Employees act in bad faith if they compete with the business of their employers.

Conflict of interest can arise in the following instance. Although employees are entitled to participate in the activities of unions, it may well be that, because of a particular employee’s duties, such activities may place them in an untenable position vis a vis the employer. The court used as examples the duty of some senior employees to conduct disciplinary inquiries or to attend bargaining sessions with unions, and warned that, when senior employees must choose between their union duties and their duties towards their employers, they must ‘tread carefully’.

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