Cape Labour Blog
Labour Consulting Services
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
POLYGRAPH TESTING
May 16th
A polygraph test is used to verify a person’s truthfulness.
Consent must be obtained in writing from the person who is to undergo a polygraph examination and this provision should be included in the contract of employment. You cannot compel a person to undergo a polygraph examination.
Polygraph testing on its own is inherently unreliable and should be viewed with great circumspection.
Polygraph test results should be used only in support of other evidence. It is inconclusive in the absence of any other evidence. The test merely indicates probability and cannot show guilt beyond a reasonable doubt.
It is the duty of Commissioners employed by the CCMA or a Bargaining Council to determine the admissibility or reliability of the evidence.
Contact Bernard at bernard@capelabour.co.za or W. tel. no 021 423 3959 or visit our website www.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
UIF – UNEMPLOYMENT INSURANCE FUND
May 16th
UNEMPLOYMENT INSURANCE FUND
What is the role of the Unemployment Insurance Fund?
The Unemployment Insurance Fund (UIF) is part of the Government’s Social Security programme. The Fund has been established to provide short term relief to workers, subject to certain conditions, when they become unemployed, or are unable to work because of illness, maternity or adoption leave and also to provide relief to the dependants of decreased contributors.
How does the Fund obtain its money?
The Fund obtains its money from monthly contributions made by employers and workers. This contribution is made up of 1% contribution by the employer. The total contribution that must reach the Fund is therefore 2% of the worker’s salary.
How to register with the Fund?
The employer is compelled to register with the Fund as soon as business activities commence and the first workers begin to work. The prescribed UI 8 form for commercial employers or UI 8(D) form for domestic worker should be completed and submitted to the UIF.
How should employers declare to the Fund?
Employers are required by law to declare details of their workers, i.e. full names, ID numbers, period of service as well as their remuneration to the Fund. Employers could either declare electronically or manually by completing the UI 19 form for workers in the business sector or UI-19D (E) for domestic workers to the Fund. Any change of details of workers should be forwarded to the Fund within seven days after the end of each month. It should be noted that the UI 19 form should not be handed to workers following termination of service, but be submitted directly to the office of the Unemployment Insurance Fund.
Who must contribute to the Fund?
• Any person working for 24 hours or more per month for an employer, irrespective of how much he/ she earns, should contribute to the Fund.
• Domestic workers and their employers are also required to contribute to the Fund with effect from 1 April 2003
The following categories of workers are excluded from contributing to the Fund.
• Workers who work less than 24 hours a month
• Public servants as defined under Section 1(1) of the Public Service Act of 1994
• Workers who receive earnings under a contract of employment in term of the Skills Development Act of 1998
• Foreigners who enter the country for the purpose of carrying out a contract of service
• Sole owners of a business
• Workers in receipt of a monthly State Social Pension (old age pension)
What benefit does the Fund provide for?
• Unemployment benefits
• Illness benefits
• Maternity benefits
• Adoption benefits
• Dependants benefits
How will the Fund know how much to pay when a person becomes unemployed?
• The rates at which the benefits are payable is accordance with the scale of benefits which ranges between 38-58% of your last salary. Low income earners receive a higher percentage whilst high income earners receive a lower percentage.
• Credit days are also given to the workers as they work and contribute to the Fund. Credits are earned as follows: For every six days that you work as a contributor, you receiver one day’s credits subject to a maximum of 238 days credits. In order to qualify for the maximum credits, you must have worked continuously as a contributor for at least four years immediately preceding the date of application.
What are the qualifying conditions for Unemployment Benefits?
• Application for all the benefits must be made within six months of termination of service.
• Ordinary benefits are payable from the date of application
• Benefits are only payable if the employer terminates the services of the contributor or a contract of service has expired.
• In the event of resignation no benefits will be paid unless it can be proven that it was constructive dismissal.
• The contributor must be registered as a work seeker with the Department of Labour (complete prescribed form)
• The contributor must be Capable of and Available for work.
• The contributor must report at times and places as requested.
Please feel free to contact Bernard (W) 021 423 3959 or E-mail bernard@capelabour.co.za or www.capelabour.co.za for more info
DISMISSAL OR AGREED TERMINATION OF EMPLOYMENT
May 16th
There are occasions where the employer gives the employee an opportunity to consider certain choices.
Namely,
1. To request that the employee tender his/ her resignation;
2. To face possible dismissal subsequent to attending a disciplinary hearing;
3. Or to agree to the employment relationship terminating by mutual agreement.
After the employee’s deliberations,
1. The employee might consider tendering his/ her resignation voluntarily.
2. Alternatively, the employee might decide to attend a disciplinary hearing and challenge the dismissal.
3. Lastly, the employee and the employer might agree to terminate the employment relationship by mutual agreement. This will entail a settlement agreement being drafted wherein both parties will sign the agreement freely and voluntarily, having understood the contents thereof. The settlement agreement will reflect that the agreement constitutes full and final settlement of all claims and disputes between the parties arising from the employment relationship between them. The settlement agreement entered into between the parties becomes a legal and binding agreement.
Once the employment relationship is terminated by mutual consent, the employee can no longer claim an alleged unfair dismissal as it does not constitute a dismissal.
For further information on Unfair Dismissal 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
Labour Law Consultants in the Western Cape
May 16th
Cape Labour & Industrial Consultants, headed by Bernard Reisner, has provided Employment Law (Industrial Relations) services to employers across all market segments and industries since 1987.
Cape Labour Law Consultants are service-orientated and strives to provide its clients with professional and cost effective advice, both in respect of the applicable laws and of a practical nature in order to present holistic solutions to all Labour related matters.
Bernard Reisner combines expertise in his field, and an outstanding knowledge of Labour law principles and issues, with a superb ability to communicate and meet his clients’ unique needs.
Bernard has a unique insight into all aspects of workplace issues and is able him to assist his clients with the best possible advice from a legal and practical perspective.