Labour Consulting Services
Articles
DISCIPLINARY HEARINGS
May 21st
An interesting and innovative application was made by Mr Olivier who tried to interdict (stop) MTN Management Services from going ahead with a Disciplinary Hearing. Olivier said that the matter was urgent and asked the Labour Court to stop the Disciplinary Hearing because of various circumstances. The Labour Court looked into the problem and said that the circumstances were not special or the applicant could not show that he had suffered any injustices yet and therefore the Labour Court said he had not made out a case for this interim relief. The Disciplinary Hearing went ahead.
Disciplinary Hearings have become more and more complicated and management are reminded that if an employee requests outside legal representation at the disciplinary hearing, this must be carefully considered at the Disciplinary Hearing before a decision is made, either to allow or disallow the legal representation. Furthermore, a request for further particulars to the letters to attend the Disciplinary Hearing must be carefully taken into account and answered if possible. Any refusal by management to supply the requested particulars, should be debated at the disciplinary hearing before the Chairperson so that the Chairperson can make a reasoned decision as to whether the particulars are required to continue with the disciplinary hearing. If the particulars are required, then the Chairperson should postpone the disciplinary hearing to allow the employee time to consider the documents and particulars that have already been requested.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
GRIEVANCE PROCEDURE
May 21st
Grievance procedure is one of those all important procedures and documents which must be given to all employees at induction. If the company does not have a grievance procedure, it is suggested that same be distributed to the employees asking for their comments and to thereafter finalise a document. This procedure creates an outlet for any complaints that might have arisen and helps the company avoid allegations at a later date such as discrimination or victimisation.
Furthermore, a grievance procedure would enhance industrial peace at the workplace in that it gives a dispute a specific outlet and creates a path allowing any employee to channel his or her angle or disquiet. Over and above all this, should an employee choose not to invoke the grievance procedure but merely resign and thereafter claim constructive dismissal, this would very much hold against that individual and, in most circumstances, would mean that a claim for constructive dismissal is not tenable.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
EMPLOYERS REFERRING MATTERS TO THE CCMA
May 21st
We often receive complaints from employers that their employees have left without notice or have committed some sort of unfairness and they want to refer the matter, either to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council. We always advise employers to rather take internal disciplinary action and if necessary dismiss, but referring the matter to the CCMA or a Bargaining Council is not acceptable.
In an interesting case, the National Entitled Workers’ Union vs CCMA and others, the President of the Union resigned with very little notice and for no good reason. The Union referred the matter to the CCMA who refused to entertain the referral on the basis that the employee’s resignation did not fall under the definition of an unfair labour practise. Thereafter the Union applied to the Labour Court for the ruling of the CCMA to be reviewed. The Union sought an order declaring that the Labour Relations Act was wrong because it didn’t give employers a remedy against unfair labour practises perpetrated against them by the employee. The Labour Court again dismissed the Application for Review on the basis that the concept of unfair labour practise does not include an unfair labour practise committed by an employee against an employer.
The Court specifically stated that employers don’t need any protection against unfair resignation by employees.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
PUBLIC SECTOR STRIKE
May 21st
This promises to be the biggest public sector strike we have ever seen in the country. There was one in 2004, but not that widespread. In essence, government has offered 6% and the Union is holding out for approximately 12%. Although many of the sectors are essential services, such as nurses and policemen, they have threatened to strike as well. This will create an enormous problem especially the essential services of the city. We also will probably see teachers going out on strike and chaos at some schools.
CONSTITUTIONAL COURT JUDGMENTS
(RUSTENBERG PLATINUM MINES):
This case has been argued in the Constitutional Court and we are awaiting the outcome. The initial Supreme Court of Appeal stated that employers have a right to choose their own sanctions for disciplinary offences at the workplace. The case put managerial prerogative back into disciplinary hearings and certainly, as an attorney, many of the decisions made by the CCMA and the various Bargaining Councils. It is argued that the CCMA was not judicial and that it did not have the normal judicial powers. We await the Court’s decision with bated breath.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
EAT DRINK AND BE MERRY – BUT NOT DURING WORKING HOURS
May 21st
As we approach the Christmas Season we to post a warning once again that the zero tolerance for alcohol at the work place is not relaxed over the holiday period. The problems that arise at this time of the year create incredibly difficult situations when future dismissals are challenged.
We have seen numerous examples of intolerable behaviour arising out of drinking at the work place or whilst celebrating Christmas luncheons. The behaviour has invariably led to disciplinary hearings thereafter and unfortunately the guilty finding at the disciplinary hearing has more often than not terminated the employment relationship.
It is often said that the rules should be relaxed for Management or at least relaxed in circumstances such as the Christmas Season. However, this relaxation will come back to bite the employer when an individual is caught intoxicated whilst doing his/her job. There have been many reported arbitration awards showing that is individual staff members are treated differently this could amount to an unfair labour practise.
It is suggested that should employers find it necessary to have drinking during the Christmas celebrations that everyone is excused from further work that day and that transport be arranged for those that have partaken in alcoholic beverages.
Please take this cautionary note into account as it could avoid enormous hardship such as a case we have a few years back when 2 individuals had had too much to drink at the Christmas celebrations and a fight ensured between them. This fight led to the death of one of the employees. This situation could have been avoided.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
EXIT INTERVIEW
May 16th
An exit interview is also referred to as a termination interview, separation interview or post-exit questionnaire. An exit interview is usually conducted under termination circumstances such as resignation.
An exit interview is a way in which the employer gathers valuable information as to why the employee leaves the company.
It is the employee’s choice whether or not to participate in an exit interview.
Reasons why an employee should participate in an exit interview:
- By providing constructive feedback to the employer, an employee
will secure a positive reference and the employer may rectify its shortcomings to its benefit.
Reasons why an employee should not participate in an exit interview:
- If an employee is disgruntled and speaks his/ her mind in a
derogatory manner, it will cause more harm than good. In essence,
this will be counterproductive to the process.
Contact Bernard Reisner on 021 423 3959 or e-mail bernard@capelabour.co.za or www. capelabour.co.za
How to handle long absences from work
May 16th
Employees are sometimes absent from work for extended periods, at times without explanations but also for reasons of which the employer is aware.
The extended absence from work may provide the employer with a reason to terminate the contract of employment but that is not automatically the case.
The employer must ensure that prior to contemplating dismissing the employee, there is a good reason / reasons to go ahead with the dismissal. It would be preferable to convene either a disciplinary hearing or an incapacity hearing. Depending on the facts of each case, the sanction of dismissal may be justified.
Employers should not merely assume that the absence justifies dismissal and should not dismiss the employee before affording the employee (if possible) an opportunity to state his / her case.
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 ON THE GROUNDS OF TEMPORARY ILL HEALTH OR INJURY
May 16th
INCAPACITY ON THE GROUNDS OF TEMPORARY ILL HEALTH OR INJURY
1. The Basic Conditions of Employment gives all employees, who work 5 days per week, 30 days’ paid sick leave in each 3 year cycle. Once the employee’s sick leave entitlement has been exhausted, the employer is no longer obliged to pay the employee for any future absences of sick leave within the 3 year cycle.
2. The employer has to take cognisance of both the substantive and procedural fairness prior to contemplating dismissing the employee:
Substantive fairness should include the following:
- The nature of the incapacity
- The cause of the incapacity
- The likelihood of recovery
- The improvement or recurrence
- The period of absence and its effect on the employer’s operations
- The effect of the employee’s disability on other employees
- The employee’s work record and length of service
Procedural fairness should include the following:
- The employer’s counseling sessions with the employee regarding the employee’s ailment/ s
- In conjunction with the employee, the employer should try and find a solution to the problem
- The employee should be assessed whether the employee is still capable of performing the duties for which the employee has been employed
- The employer should investigate all the possible alternatives short of dismissal
Can the employee be offered suitable alternative work?
Can the employee be retrained in order to retain a job?
Bearing in mind the above, dismissal is justified in the case of illness or injury, which illness or injury occurs frequently.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
WHAT ARE YOUR RIGHTS: DOMESTIC WORKER SECTOR
May 16th
WHAT ARE YOUR RIGHTS: DOMESTIC WORKER SECTOR
On 1 September 2002, the Sectoral Determination 7: Domestic Worker Sector became effective. The Sectoral Determination applies to the employment of all domestic workers in the Republic of South Africa and established conditions of employment and minimum wages for employees in the Domestic Worker Sector.
The definition of a “Domestic Worker” is any domestic worker or independent contractor who performs domestic work in a private household and who receives, or is entitled to receive pay and includes –
(a) a gardener;
(b) a person employed by a house hold as a driver of a motor vehicle; and
(c) a person who takes care of children, the aged, the sick, the frail or the disabled;
(d) domestic workers employed or supplied by employment services.
Every employer on whom this Sectoral Determination is binding must keep a copy of the Sectoral Determination or an official summary available in the workplace in a place where the domestic worker has access. The Sectoral Determination is binding on domestic workers who work more than 24 hours per month for an employer. However, minimum wages and annual wage increases still apply to domestic workers who work less than 24 hours per month for an employer, even though the Sectoral Determination does not apply to them.
A newly employed domestic worker is entitled to a contract of employment and to be issued with a payslip with each wage payment.
A domestic worker
• is entitled to join a Trade Union;
• is entitled to meal intervals;
• is entitled to rest periods;
• is entitled to annual leave, sick leave, maternity leave and family responsibility leave;
• is entitled to paid Public holidays;
• is entitled to paid overtime
With effect from 1 April 2003, employers of domestic workers are required to register with the Unemployment Insurance Fund (UIF). Employers are required by law to declare details to the Fund of their employees, i.e. full names, I.D. numbers, period of service as well as their remuneration.
Domestic workers and their employers are each required to contribute 1% of the domestic worker’s wage to the Fund.
Any person working for less than 24 hours per month for an employer, irrespective of how much he/ she earns, need not contribute to the Fund.
The Fund provides for Unemployment benefits, Illness benefits, Maternity benefits, Adoption benefits and Dependants’ benefits.
Domestic workers employed in private homes are still excluded from claiming compensation for injuries, diseases and death sustained in the course of their work.
There are many facets of the Sectoral Determination that employers do not comply with, for example, not paying the minimum wage or registering for UIF.
Many domestic workers are dismissed or retrenched without good cause and without being afforded the right to attend a disciplinary hearing. They have recourse in the CCMA to claim reinstatement and/ or compensation up to 12 month’s salary if the termination of their services is proved to be unfair.
The latest updated version of our popular booklet YOU, YOUR DOMESTIC WORKER AND THE NEW LAWS (R49.00) tells you all the law you need to know about domestic worker employment and includes specimen copies of all necessary legal documents, including a written contract.
To order a copy of our booklet, contact Bernard Reisner on 021 423 3959 or bernard@capelabour.co.za
UNDERSTANDING THE PROCESSES OF THE CCMA
May 16th
UNDERSTANDING THE PROCESSES OF THE CCMA
(Commission for Conciliation, Mediation and Arbitration)
1. The first process that is conducted by the CCMA is conciliation.
The conciliation hearing is a process where a Commissioner facilitates possible settlement discussions between the parties.
The Commissioner does not have any powers to make decisions but may merely make recommendations regarding a settlement.
The CCMA does not grant postponements of conciliation proceedings.
If an employee fails to attend a conciliation process the dispute can still be referred by the employee to the next stage, be it arbitration or Labour Court.
A Certificate of outcome will be issued certifying that the dispute remains unresolved.
If the matter is settled, the Commissioner will draft a settlement agreement recording the terms of the settlement. Hereafter, the Commissioner will explain the terms of the settlement to both parties and obtain both parties signature. A copy of the settlement agreement will be issued to the parties for their record and a certificate of outcome will be issued certifying that the dispute is resolved.
2. The second process that’s conducted by the CCMA is arbitration.
Arbitration is a more formal process than conciliation.
The Commissioner will record the proceedings.
The Commissioner makes a formal decision in terms of handing down an arbitration award.
The arbitration award is legally binding on both parties, although the parties can apply to the Labour Court for a review if they are dissatisfied with the arbitration award.
3. The CCMA may set a dispute down for con-arb. The CCMA is inclined to set it down for this process to save time and expense.
A con-arb process is a combination of conciliation and arbitration.
The first stage of the process is the conciliation process. Should the matter not be resolved in conciliation, the arbitration stage proceeds immediately thereafter.
Parties to a con-arb are advised to attend the hearing with all their witnesses and the documented evidence they will need to prove their case.
The con-arb process is compulsory in only 2 instances, namely,
where the dispute is about dismissal for any reason relating to probation or any unfair labour practice relating to probation.
It also cannot be used for disputes over which the CCMA has no jurisdiction because they are disputes that must go to the Labour Court. For example, the Labour Court will adjudicate group retrenchment disputes or a dispute on the grounds of some form of discrimination. Where the con-arb process applies, a party has the right to object to the con-arb by lodging an objection in writing. Same written notice of objection must reach the CCMA at least 7 days before the date scheduled for the con-arb.
Contact Bernard Reisner on 021 423 3959 or e-mail bernard@capelabour.co.za