Labour Consulting Services
Articles
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 CCMA Rules or 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
INCAPACITY AND POOR WORK PERFORMANCE
Nov 7th
Applicant dismissed for failing to reach targets without being given reasonable opportunity to improve – dismissal unfair.
A sales consultant was dismissed for consistently failing to reach his sales target. He claimed that the target was unreasonable, that he had not been given sufficient time to close sales and that the downturn in the economy had made selling the respondent’s products more difficult. The respondent maintained that the applicant had agreed to the sales target he had been set, and that he had been counselled repeatedly. The commissioner noted that poor work performance is regarded as a consequence of incapacity, and that poorly performing employees must be given a reasonable opportunity to improve. In cases of dismissal for poor work performance, the employer must also prove that the employee failed to meet a performance standard, that he was aware of the required standard and that dismissal was an appropriate sanction for not meeting the required performance standard. It was common cause that the applicant was aware of the standards he had been set, and that he had failed to meet them.
The respondent had failed to properly investigate and remedy the reasons for the applicant’s poor performance. There had been no meaningful effort to render assistance to him through proper instruction, training, guidance or counselling. There could be no question of giving an employee a reasonable time to improve without taking these steps. Dismissal was, accordingly, an inappropriate sanction in the circumstances
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
WHEN A SECOND ENQUIRY IS FAIR
Nov 7th
The double jeopardy rule means that an employee cannot be subjected to a second disciplinary enquiry after he has been acquitted after the first enquiry. But this rule is not absolute – fairness may justify the employer’s holding a second enquiry and indeed then finding the employee guilty and dismissing the employee. But whether a second enquiry would be fair depends on the circumstances.
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
FOREIGN NATIONALS WITHOUT VALID WORK PERMITS
Nov 7th
Must be treated as employees, and are entitled to protection under the South African labour legislation. Whatever the reason for a suspension, employers remain liable to pay suspended employees. Suspension of foreigners without valid work permits fall within the scope of the CCMA’s unfair labour practice jurisdiction.
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
DISCIPLINARY SANCTION SELECTION
Nov 7th
Sanction (or penalty) selection is a critical final step in disciplinary hearings when an employee has been found guilty.
It is possible that an employer proves an employee’s guilt yet a subsequent dismissal is held to be unfair on grounds that the sanction of dismissal is too harsh. It is not uncommon for the CCMA, or a bargaining council, to hold that the punishment does not fit the crime. Disciplinary sanctions are meant to be proportionate to the severity of the misconduct. It follows that less severe acts of misconduct warrant lesser sanctions, and only the most severe forms of misconduct deserve dismissal.
Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer , a fellow employee, a client or customer; and gross insubordination. The application of progressive discipline is therefore encouraged. Disciplinary sanction typically include verbal warnings (normally valid for 3 months), written warnings (normally valid for 6 months), and final written warning (normally valid for 12 months).
When a commissioner is assessing the fairness of a dismissal sanction, the “totality of circumstances” must be considered, including the importance of the rule breached, the reason for the sanction, the harm caused by the employee’s conduct, the employee’s service record, whether additional training and instruction may result in the employee not repeating the misconduct, and the effect of dismissal on the employee. When dismissal is deemed to be an unduly harsh sanction, it amounts to substantive unfairness, and leads to reinstatement with a lesser sanction being imposed.
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