MAJOR CHANGES AFFECT MITIGATION LAW

MAJOR CHANGES AFFECT MITIGATION LAW

Even where it has been proved beyond any doubt at arbitration that an employee has committed an extremely serious offence, the employer will not have discharged its legal duty to prove that the employee deserved to be dismissed.

Schedule 8 indicates that an employee may be dismissed for gross offences such as assault, wilfully endangering safety, gross dishonesty or gross insubordination. 

The employer’s own disciplinary code may have other offences that merit dismissal such as, for example, gross sexual harassment, racist behaviour, gross dereliction of duty or bringing the name of the company into disrepute.

However, Schedule 8 also says that, despite the fact that such misconduct might merit dismissal, the employer’s right to dismiss the employee is subject to the condition that each case should be judged on its own merit. This means that while it might be acceptable to label an offence as gross misconduct, dismissal will only be merited if the specific circumstances of each individual case, looked at as a whole, make dismissal apt.

The person deciding whether a guilty employee deserves to be dismissed must take into account all circumstances of the case as well as circumstances such as the employee’s personal circumstances, the employee’s disciplinary record and length of service. It is important to note that Schedule 8 does not say that the employee’s personal circumstances, disciplinary history or length of service must be taken into account in the employee’s favour to mitigate the penalty. The code merely says that these factors must be taken into account; period. The wording of the Code does not stop the employer from taking such circumstances into account as aggravating circumstances. Indeed, it is accepted practice, that, should the employee’s record show previous, unexpired warnings for a similar offence, the employer can use these as circumstances to strengthen the penalty.

However, it appears that, although the Code does not specify it, arbitrators and Labour Court judges expect an employer to view an employee’s long service as a mitigating circumstance potentially strong enough to reduce an expected dismissal penalty to a lesser corrective measure. For example, in the case of Sedumo and another vs Rustenburg Platinum Mines Ltd (2008  2 BLLR 24) a key issue raised in the Constitutional Court was that of how a Chairperson should deal with mitigating circumstances. Chairpersons often have difficulty deciding how much weight to give mitigating circumstances and thus how to satisfy the CCMA and the courts. There are a number of factors contributing to this problem:

  1. Chairpersons who are not trained or not trained enough
  2. Chairpersons who lack experience
  3. Chairpersons who lack knowledge  concerning the content and spirit of the law
  4. the fact that the CCMA does not have one standard policy towards the weight to be given to mitigating circumstances. As different Commissioners have different views, it is difficult for Chairpersons to know what the standards are.

 

In the above mentioned case what Sidumo did was, at worst, dishonesty and, at best, gross dereliction of duty. He claimed not to have been trained in the specific task he was required to do. However, he had 15 years of experience as a security guard and the question arises as to what training such an experienced guard needs in order to know that he must search every person exiting the Precious Metals gate. The question also arises as to why his 15 years of service should significantly mitigate his penalty. That is, was he at the company for 15 years out of loyalty for the employer or he was unable to get another job? Why should his 15 years of service only be used in his favour? Why could it not be used against him due to the fact that his years of long service should have taught him that he is required to search employees who he has been instructed to search and should have taught him the importance of this job and the seriousness of his failure to do so.

The employer has a dilemma in such circumstances. I.e. on the one hand, the employer knows that an employee behaving in such a grossly derelict manner deserves to be dismissed and that the employer cannot possibly continue to trust the employee. On the other hand, the employer knows that the CCMA, backed up by the Constitutional Court expects the employer to give significant mitigating weight to 15 years service.

The employer thus needs to be able to give sufficient weight to length of service but, at the same time, to be able to identify reasons why the mitigating circumstances are outweighed. The danger lies in the lack of understanding of how to balance these two responsibilities.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvise.co.za

PRODUCTIVITY MINDSET = ECONOMIC FREEDOM

PRODUCTIVITY MINDSET = ECONOMIC FREEDOM

In one of my recent articles I touched on the issue of productivity at the workplace. I mentioned that, now more than ever, businesses and their employees need to team up so as to ensure that the business and its people survive and prosper during and post Covid. 

The meagre assistance that government is able to provide to businesses and employees might help to a small extent in the short term, but it is by no means the long term solution. There is also no magical solution that is going to fall out of the sky.

Even if, in the unlikely event that our economy gets back to the pre-Covid annual growth figures (sub 1%), this will not help individual businesses and their employees. And it will not help the 12 million unemployed people in South Africa. 

ESKOM has become less and less able to provide power and, at the same time, has become more and more insistent on increasing its tariffs. Added to this, there is very little confidence that the government is able to manage our economy back to health. This is because it is seen to be financially and morally bankrupt, and unwilling to make the changes necessary for economic recovery.

If our government wanted to put the welfare of our economy before the unity of the ANC alliance it would, long a go have made the economic reforms required by the IMF. It would then have borrowed money from the IMF and invested that money in fixing ESKOM and in the so called “massive infrastructural projects” that it has been talking about for the last several years. 

In the light of the above, businesses and their employees cannot expect their future financial security to come from above. Neither can they afford to wait until the ANC is replaced by a new government.

As a result it is urgent and necessary that businesses and their people take their salvation into their own hands. Happily, this is very possible to achieve. Once we accept that the money we need is not going to fall from the sky we have also to accept that, if we want money, we need to make it.

This is not a radical concept. Businesses are normally set up for just this purpose, and employees get jobs mainly for the purpose of making money. However, most businesses and their staff are not making nearly enough money to satisfy their needs and the needs of our economy. And they never will, unless they first make drastic changes to the counterproductive work-pay system plaguing most businesses. That is, at most workplaces, there is, at best, a very reluctant and strained level of cooperation between employees and management. This arrangement is tenuously held together by management’s threat of punishment, and the threat made by employees of strikes and CCMA litigation. This system is as far away from a scenario of making good money as the earth is from the other end of the universe.

As a result, we, as business owners and as workers need to develop an entirely new basis for our cooperation in our quest for making money. We  need to replace our current counter productive ethos with one  that will make much more money for everyone. This is necessary for counteracting the financial devastation caused by State Capture, a grossly ineffective government and Covid19.

If we as business owners and workers are going to make the money we need, we will have to team up with each other in a true partnership for creating super-productivity. And then we need to share the fruits thereof fairly with each other.

Then, staff will be motivated by the opportunity to make real money instead of being cajoled into reluctant cooperation and getting a small wage at the end of the month. And business owners will also be motivated by the opportunity to make real money instead of accepting the business losses or meagre profits delivered by our current self defeating pay-reward system.

This new co-productivity system will remove the conception that so many workers have that the word ‘productivity’ means exploitation, neo-apartheid abuse and capitalist greed. And businesses will be able to make big profits because of the fair and constructive relationships they have with their staff, and because of the business’s willingness to share those profits with their employee partners. 

One of the greatest thinkers of all time, Albert Einstein said that we cannot solve any problem with the same mindset that caused it. Businesses and their people have the same problem, namely that they are not making enough money. But application of Einstein’s principle means that both business owners and workers can only solve this money problem if they change the mindset that caused it. That is, the money shortage problem has been caused by our uncooperative workplace mindset. We can solve the money shortage problem by developing a new, cooperative mindset.

If we cling to our old and failed ‘we-they’ mindset we will doom ourselves to a future of low pay, job insecurity and business failure. But, if we are willing to free ourselves from our uncooperative mindsets we will make ourselves economically free.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

MANAGING EMPLOYEES WORKING REMOTELY

MANAGING EMPLOYEES WORKING REMOTELY

The most frequent question I am asked is, “How do we productively manage employees working from home?” 

This question is not only important during the lockdown. It will also be crucial post lockdown because the working from home trend will, in many cases, continue forever.

It is a serious challenge for every executive and supervisor to manage people who are not physically where you are. In this situation managers are not routinely able physically to visit the employees’ workstations to see that they are there, to check their work quality and to provide guidance. And the manager’s presence can no longer act as a deterrent against slacking off.

Due to the above headache HR professionals need to support management in installing mechanisms to replace the old methods of managing employees.

This firstly involves the development and implementation of amended policies to regulate the new working arrangements. The new Working From Home policy should, amongst others, include: 

  1. The requirement to work from home based on the lockdown regulations
  2. Changes to work systems, tasks and responsibility
  3. A results focussed work performance monitoring system.

Secondly, HR should facilitate the setting up of reporting systems where the employee’s work output and results are closely monitored via carefully designed report formats. However, before work performance can be monitored and evaluated each employee’s responsibilities must be defined in detail in specific key result area agreements. And realistic standards for each employee’s performance must be very carefully arrived at and documented.

Thirdly, HR should work with the IT department to ensure that telephone, email, virtual-meeting and other communication facilities are working optimally.

Fourthly, Performance Improvement Programmes have become crucial implements for managing remote working. However, these must be extremely carefully designed and implemented. HR needs to obtain expert assistance in setting up PIP systems and must get loud support from the very highest authority in the company for preserving the integrity of the performance management system.

Where there is clear proof that an employee is being properly assisted and still refuses to put in the necessary effort, the reason for this should be thoroughly investigated. If this establishes that the performance shortfall is the employee’s fault a more disciplinary type of corrective process should be used.

Likewise, employers are entitled to discipline employees who break Covid rules. However, employers are still required to prove that their disciplinary steps are procedurally fair and substantively rational.

The Commissioner noted that the main motivation of the rule was to avoid workers risking Covid infection by using public transport. As the level 5 lockdown had ended when they went home and neither had used public transport they had not broken any rule. The applicants were reinstated with retrospective effect. It appears that this employer overreacted in trying to adapt to the lockdown.In the case of Van Wyk and another vs Africa Spice (Pty) Ltd
[2021] 1 BALR 102 (CCMA) The respondent, being an essential service, decided to continue operations under lockdown level 5, but required only 15 of its normal staff of 120. Those who volunteered to work were selected on condition that they remain in the workplace 24 hours a day for the duration of the lockdown so as to avoid the risk of contracting Covid. However, the two applicants broke this rule by leaving the premises after knockoff time. They were dismissed for breaking a workplace rule and for insubordination. 

However, adaptation to lockdown conditions is only one priority for employers. Ensuring that the business survives and prospers during and post Covid is equally crucial. As financial prosperity can be achieved neither via luck nor magic, businesses need to implement new systems for promoting the super-productivity ethos essential for counteracting the financial devastation of Covid.

In SA a fairly unique and very powerful obstacle to productivity is the fact that, for hundreds of thousands of workers, the word ‘productivity’ means exploitation, neo-apartheid abuse and capitalist greed. Companies have reluctantly ‘lived with’ the workers’ aversion to productivity. However, now with the severe damage done to our businesses by Covid, this productivity aversion mindset urgently needs to be reversed.

The key to changing the negative mindset of workers lies in convincing them that their increased productivity works strongly for them and not merely to make the owners of the business richer through worker exploitation.

 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

EMPLOYERS STILL IGNORING MAJOR LEGAL CHANGES

EMPLOYERS STILL IGNORING MAJOR LEGAL CHANGES

This is the first in a series of articles on changes and dangers in labour law. 

During 2014 and 2015 the Department of Labour introduced a spate of new legislation with far reaching significance for employers. These major amendments have increased the already powerful stranglehold that legislation had on productive business management and employment creation.

The new Labour Relations Act (LRA) effective from 1996 together with the numerous statutory amendments and innovations that followed have drastically increased the legal obligations of employers, increased the rights of employees and severely hampered business flexibility. These changes made over the past years included, amongst others, the following:

  • It is now very much easier for unions to achieve recognition by employers
  • Employees, even if not unionised, are entitled in certain circumstances to go on strike in protest against retrenchments and to insist that a CCMA facilitator participate in retrenchment processes
  • The delay period between the date that retrenchment becomes necessary and the date when the employer is allowed to implement retrenchment has been extended in certain circumstances
  • It is an automatically unfair dismissal for an employer to terminate the employment of any employee for any reason related to the transfer of a business (or any part/service of a business) as a going concern
  • Where the employee has a reasonable expectation of renewal of a fixed-term contract the employer’s failure to renew it can be seen as an unfair dismissal
  • Where the employee alleges unfair dismissal the employer has the legal onus of proving that the dismissal was fair. That is, once the employee has proved that the dismissal occurred, the employer is considered guilty of unfair dismissal until it proves itself innocent
  • Even where the employer is not aware as to what specifically the employee is alleging was unfair about the dismissal the employer is required to present its case first at arbitration and in Labour Court
  • It is the company and not the actual perpetrator of sexual harassment who gets sued in the Labour Court.

 In addition to the above and other draconian legislation implemented by statute in recent years labour law has and is still in the process of being changed via case law. That is, the courts and arbitrators are constantly making decisions that have the effect of moving the goalposts and this is more often than not to the detriment of the employer. That is, these decisions too frequently conflict with each other so causing major confusion amongst employers who have become all the more unsure as to what they are and are not allowed to do. In addition, case law too often produces decisions that further erode the already minimal rights held by employers. Such case law includes, for example:

  • Findings that employees are not always restricted to being represented at disciplinary hearings by fellow employees and can be entitled to bring external representatives such as trade union officials and lawyers into internal disciplinary hearings
  • The Constitutional Court has given the CCMA license to reinstate employees with long service who have committed gross misconduct 
  • Some judges/arbitrators believe that employees are entitled to a hearing before being placed on a precautionary suspension pending an disciplinary hearing
  • A person attains the legal status of an employee even before the scheduled start date of his/her employment where the conclusion of the employment agreement pre-dates the appointment date.

 As if the above was not enough to scare potential employers off from starting up businesses or expanding their workforces the Department of Labour further tightened the legislation allowing the use of labour brokers, fixed-term contracts and the use of external contractors.

Employers also need to be aware of the highly significant code of practice for Commissioners who preside over misconduct hearings.

Several years after introduction of the latest statutory amendments, employers are acting as if the changes do not exist and are paying a heavy price for this  at the CCMA. Therefore, this series of articles will deal with many of these changes and dangers with the hope that employers who are forewarned will be forearmed.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

CAN YOU FORCE YOUR EMPLOYEES TO BE VACCINATED AGAINST COVID?

CAN YOU FORCE YOUR EMPLOYEES TO BE VACCINATED AGAINST COVID?

2020 was a year of terror at workplaces because of the physical and financial dangers posed by Covid19. Due to the fact that the roll out of the vaccine will be slow we can expect 2021 to be as terrifying as was 2020, if not even more so.

This is because Covid is spreading much more rapidly now than ever before, too many people are still resisting the necessary safety measures and the economy is still weakening very seriously. The fact that SA’s government is severely hamstrung by anti-growth agendas does inspire confidence that it will be able to rescue the economy. And, to make matters even worse,  money for state aid of businesses and workers has run out. This poses a major threat to those businesses that have managed to survive so far.

The only light at the end of the long, dark tunnel is the vaccine, but its expected slow roll out dulls that light very significantly. As a result, when the long awaited vaccine is actually made available, business managers will want to ensure that it is administered optimally. Included in that is the need to ensure that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in very tight economic circumstances and will be operating on a very lean staff compliment.

Should, say 10% of the staff refuse the vaccine and several of those get ill, that will increase the pressure on management and will make it more difficult to run the company effectively due to high numbers of employees being off work on sick leave or isolation leave.

In addition, the business’ clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.

For these reasons many employers will want to develop policies that require all employees to be vaccinated. However, the enforcement of such policies will be very problematic. This is largely because section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” And section 15 gives everyone the freedom of religion. Thus, forcing an employee on pain of discipline to be vaccinated could, in certain circumstances, be argued to be a violation of these sections of the Constitution.

However, employers that are determined to enforce compulsory vaccination will counter this argument by quoting sections 11 and 24 of the Constitution. Section 11 gives everyone the right to life. As Covid has been a very prolific taker of lives those people who have to come in contact with the objector will be under threat of contracting the deadly disease, and their right to life would be infringed. Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. The Occupational Health and Safety Act very stringently obligates employers to ensure a safe workplace. 

Due to these potentially conflicting constitutional provisions the question of whether employees can be forced to be vaccinated is highly contentious, with the bulk of advice on this issue tending towards the cautious approach.

Employers should be aware of section 36 of the Constitution which provides that, under certain circumstances, the constitutional rights of people may be limited taking into account factors such as the nature of the right and the importance of the purpose of the limitation. 

In addition, the Table of Non-Derogable Rights in the Constitution includes neither the right to freedom of religion nor to security or control over ones body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough.

Clearly,  the challenge is to be able to convince a court that, under the circumstances, the rights of the individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such a the provision of a safe workplace. Due to the fact that the enforcement of the taking of the Covid vaccine is such a new issue there are as yet no court findings that can provide a precedent. 

In the end, where an employer considers forcing employees to take the vaccine, it will first have to get expert advice as to whether the specific circumstances that prevail would justify such a drastic step. In order to consider taking such a step there would at least need to be a very clear and present danger of severe consequences to the workplace community of employees not being vaccinated.

For legal and employee relations reasons, it would be much more prudent for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails and where it is viable, the employer could consider arranging for objectors to work from home or placing them in locations where risk of transmission is reduced, and also enforcing the normal safety restrictions we have come to know so well. 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to:www.labourlawadvice.co.za

Pin It on Pinterest