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MATERNITY LEAVE
Oct 14th
Pregnant women are entitled to four consecutive months’ unpaid leave, which commence at any time from four weeks before the expected date of birth or from which a medial practitioner or midwife certifies that leave is necessary for the health of the mother or child. The wages of new and expectant mothers on maternity leave are carried in part by the state in terms of the unemployment Insurance Act.
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
ANNUAL LEAVE
Oct 13th
With the exception only of those who work for fewer than 24 hours, all employees, irrespective of status or remuneration are entitled to annual leave of at least 21 consecutives days per annual leave cycle of 12 months, commencing on employment or at end of the previous leave cycle. Annual leave must be on full normal pay, and may in the absence of agreement to the contrary be granted at a time specified by the employer, except that leave must be taken within six months of the completion of the previous leave cycle. If a public holiday falls in a period of leave, the employees leave must be extended by a day.
The method of calculating leave due may be changed by agreement to one day’s leave for every 17 days worked, or one hour’s leave for every hours’ worked. If an employee takes occasional leave, the period of continuous annual leave may be reduced proportionately. Leave may not be taken during a period of sick leave or while the employee is on notice of termination of service, and an employer may not permit the employee to work during a period of leave, or pay the employee in lieu of leave, except on termination of employment. Employees must be paid for their leave before it commences or, by agreement, on normal pay days.
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
WORKPLACE LAW
Oct 13th
Maximum hours
In terms of the BCEA, and subject to certain exceptions mentioned below, no employer may require or permit an employee to work longer than 45 hours a week, or nine hours a day if the employee works five days or fewer per week, and eight hours per day if the employee works more than five days a week. All work beyond that is overtime, which can be worked only with the employee’s consent. Overtime may not exceed 10 hours in any week, and total working hours (including overtime), may not exceed 12 hours per day.
Overtime
The rate for overtime is one and a half times the normal wage, unless the employee is subsequently granted 30 minutes off on all pay for each hour of overtime worked at normal rates, or 90 minutes off if the overtime was not paid at all. Time off in lieu of pay for overtime must b e taken within a month of the time worked, unless the employee agrees in writing to a longer period of up to 12 months. Although overtime is voluntary, BCEA does not affect the employer’s right to require employees to work overtime in terms of the contract of employment or collective agreement. Refusal by an employee to perform contractual overtime may constitute a disciplinary offence.
The parties are given some flexibility by the devices of ‘compression’ and ‘averaging’ of working hours. ‘Compression’ takes place when the employer and its employees agree on longer daily hours on ordinary wages, provided that daily working hours do not exceed 12, and provided that this does not result in the employee working longer than 45 ordinary hours or 10 hours overtime in any week, or more than five days a week. So, for example, if the maximum daily hours were chosen for particular days, the employee could work 12 hours on Mondays, Tuesdays and Wednesdays without overtime but would have to revert to an ordinary nine-hour day on Thursdays and Fridays. ‘Average’ may be effected only by collective agreement (i.e. a written agreement between the employer and a registered trade union). Such agreements may permit employers to agree with their employees that they will work an average of five hours per week overtime for an agreed period.
Night Work
Special provision is made for night workers i.e. those who work after 18h00 and before 06h00 the next day. Work may be performed during these hours only with the employees’ consent. Employees are not permitted to perform night work unless transport is available between their residence and the work place at the commencement and conclusion of the shift.
Meal breaks
Employees are entitled to a meal interval of one continuous hour after five hours’ work, for which they must be paid if they are required to work or be available for work; otherwise, meal intervals of an hour or more are not treated as paid working time. Meal intervals may be reduced by agreement between employers and employees to now less than 30 minutes, or they may be dispensed altogether if the employee works less than six hours in a day. If meal breaks are reduced to less than hour, the breaks are still unpaid if the employees are paid hourly.
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
ARBITRATION
Oct 1st
STATUTORY ARBITRATION
Con-arb
An amendment to the LRA now permits councils and the CCMA to arbitrate disputes immediately if conciliation fails. The process of ‘con-arb’ has potential dangers. For one, the same commissioner must necessarily act as both conciliator and arbitrator, meaning that, when acting in the latter capacity, he or she may have been privy to compromising information received when acting in the former capacity. This may render the process subject to review. If the dispute related to probation, the parties must apparently comply with that process. However, in all other matters, the parties must be afforded a right to object to ‘con-arb’. If a party objects, the commission or council is obliged to deal with the matter by following the normal procedure.
Set down
If the commission is satisfied with the referral, it will set the matter down for arbitration. The parties are entitled to at least 21 days’ notice, unless they have agreed to a shorter period.
Postponements
The CCMA rules provide for postponements of scheduled arbitration proceedings either by agreement between the parties or on application by one. If a matter is postponed by agreement all parties, the CCMA must be informed in writing more than seven days before the scheduled. Failing that, the party seeking agreement may apply for a postponement at any stage up to the scheduled date by filing a formal application, supported by affidavit(s), setting out the reason why postponement is sought. The application must be bona fide, and not used as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant would not for the purpose of obtaining an advantage to which the applicant would not otherwise be legitimately entitled.
Withdrawals
A party may withdraw a matter at any time by informing the commission and the other party.
Powers of arbitrators
Arbitrators are equipped with extensive powers to subpoena witnesses or documents. An arbitrator’s general duty is to determine a dispute in the manner prescribed or permitted by the Act concerned. Although the power to grant relief is wide, arbitrators can only grant relief permitted by legislation. An arbitrator who, for example, grants compensation in excess of that permitted by the LRA will exceed his or her power and act unlawfully.
Presence of the parties
Parties are generally required to attend arbitration proceedings in person. The Act permits arbitrating commissioners to dismiss matters if the referring parties fail to appear or to send representatives. If the other party is absent, the commissioner may either postpone the matter or continue in its absence, ie proceed ‘by default’. If, however, parties give compelling excuses for their absence, matters should for the sake of prudence be postponed, even if no formal application has been filed. Otherwise, the default proceedings may have to be rescinded. An arbitrator is obliged to ensure that all parties who may be affected by the award are joined in the proceedings. The test for whether a person should be joined is whether the person has a ‘direct’ and ‘substantial’ interest in the matter, ie whether the award would affect the person’s legal rights. It is the arbitrator’s duty to ensure that all interested parties have been cited as such and have been informed of the proceedings. Parties may be joined in arbitration proceedings even if they were not parties to the preceding conciliation proceedings.
Representation
In any arbitration proceedings, a party to the dispute may appear in person or be represented only by a legal practitioner or a director or employee of that party or, if a closed corporation, a member, or by any member, office-bearer or official of the referring party’s registered trade union or a registered employers’ organisation. In matters concerning dismissals relating to the conduct or capacity of the employee. Legal practitioners may appear only with the consent of the commissioner and all the other parties. This applies only to the hearing on the merits in such matters; points in limine and applications for postponements may be argued by legal practitioners. Consent by the parties to legal representation is not sufficient; commissioners must apply their minds independently to such applications, and exercise their discretion judicially.
Legal representation may be allowed if the commissioner finds that it would be ‘unreasonable to expect a party to deal with the dispute without legal representation’, given the nature of the questions of law raised by the dispute, its complexity, the public interest, and ‘the comparative ability of the opposing or their representatives to deal with the dispute’. Legal representatives seeking right of appearance in matters concerning dismissals for misconduct and incapacity should bring their applications before the matter is set down. Commissioners may require proof of the representative’s bona fides and qualification. If the commissioner allows proceedings to continue with representatives who do not have right of appearance, the entire proceedings may be set aside.
Who may attend?
The LRA does not expressly state whether members of the public, apart from the parties and their witnesses, may attend CCMA and council hearings. However, as a statutory body, the commission is bound to conduct arbitration proceedings ‘in open court’, members of the public should be allowed to attend arbitration proceedings, unless a party objects and the commissioner for sound reason rules otherwise. Both parties and their witnesses are entitled to attend the hearing. Before they have testified, witnesses to be called by either side should leave the room while the other witnesses of that party are giving evidence. The reason for this rule of practice is to avoid the testimony of one witness being coloured by the testimony of another.
In exceptional circumstances, witnesses may be permitted to give their testimony incognito or in the absence of certain parties. When considering applications for witnesses to give evidence in camera, the CCMA has applied the principles generally followed by the High Court in such matters, namely, to allow it if it is in the interests of justice, if it will not cause irreparable harm to the other party, and if there is real danger to the witness concerned.
The hearing
Commissioners are required to record the proceedings electronically, and to preserve and safeguard documentary and other evidence. When conducting hearings, arbitrating commissioners may choose the ‘adversarial’ approach normally applied by courts of law, or the ‘inquisitorial’ approach adopted in some European legal systems. The accusatorial mode requires the presiding officer to adopt a relatively passive stance, and to leave it to the parties to conduct their respective cases, confining interventions to clarification of points or to rulings on procedure. In the inquisitorial mode, the presiding officer ‘descends into the arena’ by questioning witnesses and even cross-examining them, to the extent possible.
The minimum requirement for statutory arbitrations is that the parties should all have a fair hearing. This implies that they must be afforded the opportunity to call witnesses, to cross-examine witnesses called by other parties, to make representations to the commissioner, and to have the evidence and representations impartially considered by the arbitrator. Arbitration proceedings conducted by the CCMA and bargaining councils are not merely ‘reviews’ of the disciplinary hearings conducted by the employer. They are, as the courts have frequently held, hearings de novo. This means, that, when considering the merits, commissioners must base their decisions on all the evidence led by the parties pertaining to the circumstances preceding the issue in dispute.
PROCEDURE
Formal introductions
The arbitrator normally commences proceedings by reading the case name and number into the record, announcing his or her own name, and requesting the parties and the representatives to place themselves on record. At this stage, arbitrators should disclose any previous relationship they may have had with a party, if any, and establish the credentials of the representatives.
Housekeeping
The parties should be asked whether any documents have been prepared for the hearing, and whether the respective parties are familiar with the other’s documents. If not, the parties should be afforded an opportunity to peruse the other’s documents. When this has been done, the representatives should be asked whether they are prepared to accept that the documents are what they purport to be, and that their contents are true. The replies should be recorded.
If no pre-arbitration conference has been held, the parties should also be asked their views on who should commence leading evidence. While the party on whom the onus rest (the employer in dismissal disputes, unless the existence of the dismissal is in dispute) normally begins, this is not an absolute rule; it may well be that the proceedings may be facilitated if the referring party commences, particularly if the other party is uncertain of the nature and scope of the referring party’s case. If there is no agreement, the commissioner must decide who should begin. The commissioner should also establish the language in which the proceedings are to be conducted, and whether an interpreter will be required.
Recording
Arbitration proceedings should be mechanically or electronically recorded. The responsibility of recording the proceedings rests with the commissioner, although nothing prevents the parties from recording proceedings themselves with the consent of the commissioner.
Reverting to conciliation
The Act specifically provides that the commissioner may at any time suspend the arbitration proceedings and attempt to resolve the dispute by conciliation. This is subject to the proviso that all the parties consent. Act provides that an attempt at conciliation merely suspends the arbitration, it is implicit that the arbitration may be revived it conciliation fails. However, the arbitrator would have to ensure that nothing happened during the conciliation attempt to compromise his or her impartiality.
In limine issues
Once housekeeping is completed, the commissioner should ask the parties whether they have any in limine points they wish to raise. So, for example, an employer party may wish to contend that the commission lacks jurisdiction because the other is not an employee, or was never dismissed, or because the referral was late and has not been condoned. Decisions on in limine points may be interlocutory or final. The distinction has a bearing on whether such decisions may be taken on review immediately, thus suspending the proceedings, or whether the objection party should wait until the arbitration has run its course and review it later.
Opening statements
The parties or their representatives should be asked if they wish to make opening statements. An opening statement should identify the basis for the relief sought or for the defence, and briefly set out the facts on which the party will rely. The purpose of an opening statement is merely to provide an arbitrator who may know absolutely nothing about the case with some idea of how it is likely to unfold. Opening statements may also assist the arbitrator to narrow the issues.
Narrow issues
After opening statements have been presented, it may become apparent to the commissioner that it is possible to narrow the issues, ie to identify those issues on which the parties are actually in agreement (ie common cause facts). All agreements in this regard should be recorded and mentioned in the award.
Presenting Evidence
The duty to begin
Evidence may be presented in vive voce or documentary form, first by one party, then by the other. The general rule is that the party who bears the onus should commence leading evidence, but this is not an inflexible rule.
Viva voce evidence
Vive voce is presented orally through witnesses, who are called one by one in the order decided by the party calling them. Oral evidence is given under oath, or after each witness has affirmed that he or she will tell ‘the truth, the whole truth, and nothing but the truth’. The witness is expected to give evidence from memory, and may not read from a prepared statement. Documents are contemporaneous notes, may be used to refresh witness’s memory, provided they are disclosed to the other party. Generally, the decision on which witnesses to call and which documents to present rests with the parties. With the exception of applicant or respondent parties themselves, the general practice is for witnesses of each side to remain outside the arbitration room until they have given evidence. This is to prevent their evidence from being influenced by what they might hear from other witnesses. A party intending to call an expert witness should give the other notice and provide in advance a summary of the expert testimony to be led. After being sworn in or affirmed, each witness’s testimony is normally presented in three stages: evidence -in-chief, cross-examination and re-examination.
Evidence-in –chief involves the representation of evidence in response to questions, if the party is represented. When witnesses have completed their evidence-in-chief, the other party is entitled to cross-examine. The purpose of cross-examination is to put to the witness as much of the other party’s case as is inconsistent with the witness’s version, to explore inconsistencies and, within limits, to shake the witness’s confidence in his or her version. If aspects of a witness’s evidence are not challenged in cross-examination, they will generally be accepted as true. Commissioners may be required to assist lay litigants with the principles of cross-examination. Re-examination serves only to clear up or complete matters raised in cross examination. After a witness has been re-examined, the commissioner may wish to ask further questions to clarify certain issues or to canvas additional issues. Once a party who has opened the proceedings has called all its witnesses, the other party does the same, each witness being subject to cross-examination and, if deemed necessary, re-examination. It goes without saying that all evidence presented in arbitration proceedings must be given in the presence of both parties.
Documentary and real evidence
If its authenticity is contested, documentary evidence (which includes photographs, diagrams and electronic or digital recordings and the like) must be introduced through a witness who is able to attest to its authenticity. Once admitted, documents form part of the evidence.
Closing statements
After all the evidence is before the arbitrator, the respective parties are generally invited to make closing submissions, the purpose of which is to persuade the arbitrator that the decision should be for, or against, a party on the facts and the law.
Conclusion of the proceedings
After closing submissions, the commissioner is in a position to make his or her decision. Commissioners normally ‘reserve judgment’, and inform the parties that their awards will be handed down within the period prescribed by the Act.
The award
Arbitration commissioners must ‘issue an arbitration award with brief reasons’, signed by that commissioner, within 14 days of the conclusion of the arbitration proceedings. When the award is issued the CCMA is required to serve a copy on each party to the dispute or their representatives, and a further copy must be filled with the registrar of the Labour Court. Once a commissioner issues the award, he becomes functus officio in respect to the matter. This means that a commissioner cannot subsequently change his or her mind and alter the award, unless there are grounds for variation of rescission.
Contempt of commission, or council
Parties appearing before the commission and bargaining councils are obliged to behave themselves with reasonable decorum. Although the CCMA and councils are not courts of law, the LRA empowers commissioners to ‘make a finding’ that a person is in contempt for a range of reasons set out in the Act. These include disregarding a subpoena, refusing to take the oath or to make an affirmation as a witness or (subject to the rules of privilege) refusing to answer any question fully and to the best of the person’s knowledge and belief, willfully hindering the commissioner in performing his or her statutory functions, insulting, disparaging or belittling the commissioner, or prejudicing or improperly influencing the proceedings or improperly anticipating an award, willfully interrupting the proceedings or misbehaving in any other manner during the proceedings, or ‘doing anything else in relation to the Commission which, if done in relation to a court of law, would have been contempt of court’. Unlike judges and magistrates, commissioners do not themselves have capacity to convict people of contempt. They may, however, make a finding that a person is guilty of contempt. In that event the commissioner must, in terms of the Act, refer their finding, together with the record of the proceedings, to the Labour Court for decision. The court must then subpoena the person found in contempt or any other person to appear before it and may make any order it deems appropriate.
Costs
Costs can be awarded in an arbitration hearing if a party, or the person who represented that party in the arbitration proceedings, acted in a frivolous or vexatious manner by proceeding with or defending the dispute in the arbitration proceedings. A matter may be deemed ‘frivolous’ if it is entirely without merit; and ‘vexatious’ if proceedings are pursued or defended solely to annoy or inconvenience the other party.
Rescission and variation
Once commissioners issue awards they generally become functus officia ie a commissioner may not withdraw or alter the award even if the commissioner subsequently becomes convinced that it was entirely wrong. However, provision is made for variation or rescission of awards in limited circumstances, set out in section 144 of the LRA. These are where the award was ‘erroneously sought or erroneously made in the absence of any party affected’, where the award contains ‘an ambiguity, or an obvious error or omission’, or where the award was granted ‘as a result of a mistake common to the parties to the proceedings’. In the case of a party applying for a rescission, good cause must be shown. Good cause that the applicant has a reasonable explanation for its absence, and a reasonable prospect of succeeding in the main action. Rescission is therefore not granted merely o he asking. Awards may be varied or rescinded by either the commissioner who issued the award or by any other commissioner ‘appointed by the director for that purpose’.
Enforcement
The LRA proclaims any arbitration award issued by a commissioner, and certified as such by the CCMA director, to be ‘final and binding’ and enforceable ‘as if it were an order of the Labour Court. The expression ‘final and binding’ does not exempt awards from review. Strictly speaking, the launching of a review application against an award does not suspend its operation. However, the Labour Court will invariably stay the execution of an award if a review application has been filed, provided the applicant proves reasonable prospects of success. The staying of an award may require a special application. Where enforcement of an award is stayed pending review, the application. If the review application fails, the award will be enforced then and there.
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
CONCILIATION
Oct 1st
WHAT IS CONCILIATION
Conciliation is a process under the direction of a commissioner in which parties endeavour to reach agreement with a view to settling a dispute. Conciliating commissioners cannot compel parties to settle; at most they can offer advice, which the parties are free to accept or reject. Conciliation need not actually take place before the conciliating commissioner issues a certificate.
Must a matter actually be conciliated?
The LRA provides that an employee may refer to a dispute for arbitration if the CCMA has certified the dispute remains unresolved, or if 30 days have elapsed since the matter was referred for conciliation, unless the parties have agreed to an extension of that period. If either of these requirements is satisfied, an arbitrator has no discretion to refuse to arbitrate the matter. A certificate issued by a commissioner or council stating that a dispute remains unresolved is ‘sufficient proof that an attempt has been made to resolve that dispute through conciliation.
The referral
The referral is affected by the completion of a simple form, 7.11 in which the referring party is required to provide certain details. Recognised representatives may sign on behalf of the parties. These include attorneys (but not candidate attorneys) and officials of the (registered) trade union or employers’ organisation of which the referring party is a member. Labour consultants may not refer disputes on behalf of the clients.
When the dispute must be referred?
The LRA stipulates that dismissal disputes must be referred for conciliation within 30 days of the date of the dismissal or within 30 days of the date on which the employer takes the final decision to dismiss or uphold the dismissal. Unfair labour practices disputes must referred within 90 days of the date on which the employee became aware of the act or occurrence which constitutes the alleged unfair labour practice. If the referral is out of time, the referring party must apply for condonation. Late referrals should be accompanied by a separate application for condonation, preferably on affidavit. Applications for condonation should set out the reason for the delay and deal with prospects of success of the main application, as well as the prejudice that will follow (or not follow) if condonation is or is not granted. The other party must be given the opportunity to appose condonation, should it wish to do so. Orders permitting or refusing condonation may be taken on review, and will be set aside if commissioners have failed properly to consider all the issues they are required to consider, or have misconstrued evidence, or have not complied with the rules of natural justice.
Service of documents
In terms of the CCMA rules, ‘serve’ means to hand a copy of the completed referral document to the party concerned or an authorised representative; to telefax or telex it to the party’s number; or to send it by registered post.
Who may attend?
The CCMA rules, state that parties may appear in person, or be represented only by a director or employee of that party, or in the case of a closed corporation, a member, and by ‘any member, office-bearer or official of that party’s registered trade union or registered employers’ organisation. The barring of legal representatives from conciliation meetings applies only to their physical presence. Nothing prevents the parties from consulting lawyers before or during the conciliation process, provided they are not physically present.
Consequences of non-attendance
Where the defendant party fails to appear in person, or send a representative, the commissioner may either certify the matter unresolved. The CCMA and bargaining councils have no power to compel parties to attend conciliation meetings.
Notice and duration of conciliation
The commission must, in terms of its rules, give the parties at least 14 day’s notice of a conciliation meeting, unless the parties agree to a shorter period. The LRA limits the period in which the commission may conciliate matters to 30 days, unless the parties agree to extend the period. Commissioners are not empowered to extend this time period unilaterally. This means that, once the period lapses, the referring party is entitled as of right to a certificate stating that the dispute has not been resolved, or even to refer the dispute to arbitration or adjudication without a certificate.
The conciliation process
CCMA rules permit the conciliating commissioners to resolve disputes without enrolling formal conciliation meetings, even by contacting the parties telephonically. When all parties are present, the process usually commences with the respective parties stating their case. Commissioners are entitled to offer advice to parties, usually in ‘caucus’. Conciliating commissioners must seek to steer parties to a mutually agreed outcome. While commissioners must be flexible in their approach, they must remain impartial. Once the parties inform the commissioner that they have reached settlement, and of the terms of the settlement, that is the end of the matter. All the commissioner is required to do is to record the settlement and certify that the dispute has been resolved.
Confidentiality
The CCMA rules expressively provide, with good reason, that conciliation proceedings are confidential. They are also conducted on a ‘without prejudice’ basis.
Agreement
Once agreement is reached, the commissioner must formally record its terms, and the memorandum should be signed by the parties. Nothing prevents parties from concluding settlement agreements privately. If this happens, the CCMA should be informed so that the case can be closed.
Certification
If conciliation fails, or 30 days after the referral or any further period agreed between the parties, the conciliating commissioner must issue a certificate stating whether or not the dispute has been resolved, serve it on the parties and file the original certificate with the commission. Form LRA 27 requires the commissioner to state that the dispute has not been resolved, and to specify the nature of the dispute. A certificate is deemed to have been issued when a signed copy is made available to the parties. Conciliating commissioners have no power to dictate to parties how they should pursue their disputes , and their ticking of the various boxes on the pro forma certificate does not constitute ‘rulings’ which bind other commissioners.
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
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
Hospitality and Travel Jobs: Labour Law Article
May 16th
Hospitality and Travel Jobs: Labour Law Article
Question 1: In what instances could a business such as a Golf Estate be taken to the CCMA ?
An employee can take the business such as a Golf Estate to the CCMA (Commission for Conciliation, Mediation and Arbitration) in respect to an alleged unfair dismissal on the grounds of misconduct, incapacity, operational requirements, unknown reasons or for a constructive dismissal.
Furthermore, an employee can alleged an unfair labour practice and can refer a labour dispute to the CCMA regarding unfair conduct relating to a promotion, a demotion, reduction in salary, unfair suspension or a failure to reinstate or re-employ a former employee in terms of an agreement.
Another reason an employee can take a business such as a Golf Estate to the CCMA would be on the grounds of alleged unfair discrimination relating to race, colour, sex, marital status, family responsibilities, pregnancy, age or religion.
Question 2: How frequently are employees/ applicants for employment using the CCMA i.e are cases increasing ?
Year on year there has been an increase in the number of labour disputes referred to the CCMA. Unfair dismissal disputes continued to account for the largest percentage of the nature of cases referred to the CCMA. Other referrals relate to unfair labour practices, mutual interest disputes, collective bargaining and severance pay.
Question 3: Do all employer / employee labour disputes have to be referred to the CCMA or are there other dispute resolution fora ?
Generally, labour disputes are referred to the CCMA. However, labour disputes can also be referred to bargaining councils which are voluntarily established bodies comprising registered trade unions and employer associations and are registered by the Department of Labour in respect to particular sectors and areas.
Labour disputes can also be referred to private arbitration in terms of the Arbitration Act.
Question 4: Processes at the CCMA
When a dispute is referred to the CCMA or a Bargaining Council, the parties are required to go through the process of conciliation before the matter can be referred to arbitration.
A conciliation hearing is a process where a Commissioner facilitates possible settlement discussions between the parties.
An arbitration hearing is a more formal process than conciliation. The Commissioner will record the proceedings. The Commissioner makes a formal decision in term 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.
Question 5: What is the burden of proof ?
For instance, during a disciplinary hearing there are a number of factors that an employer needs to prove.
At the disciplinary hearing it is necessary for the employer to show proof, on a balance of probability, that the employee committed the act of misconduct, for which he or she has been charged. This is essential prior to finding the employee guilty and deciding on a suitable punishment. By the same token the employer also needs to prove that the desired punishment is justified, i.e “the punishment must fit the crime”.
Article published by Bernard Reisner, a labour relations consultant. His contact details are as follows:
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