by Talent360 | Jul 24, 2020 | Employers
Labour law protects ill, injured and disabled employees in a number of ways.
Firstly, the Basic Conditions of Employment Act entitles ill or injured employees to sick leave of one day’s paid leave for every 26 days worked in each three year cycle. Employees do not, in order to be paid, have to bring a medical certificate if they are off ill for less than for three days unless such absence is repeated three times within an eight week period.
Secondly, the Employment Equity Act (EEA) protects employees and job applicants from unfair discrimination on the grounds of illness or disability.
Thirdly the Labour Relations Act prohibits employers from dismissing employees because they are disabled or ill unless the employer can prove that:
- The employee’s disability / illness has incapacitated the employee AND
- The employer has first followed the statutory incapacity procedure and has been unable to find an alternative to dismissal
Where the employee has a physical illness or disability that impedes the carrying out of his/her job, it can be difficult for the employer to cope with this but at least the duration of many physical maladies can be clearly diagnosed and predicted by the relevant medical practitioner.
However, when employees have emotional or mental illnesses, the nature and duration of these illnesses are often very uncertain. This makes life for the employee and the employer very difficult. They often do not know whether the employee will recover enough to be able to work fruitfully and how long any possible recovery might take. In addition, circumstances at the workplace could exacerbate a mental/emotional condition or even cause such a condition to recur.
For example, an employee suffers from post traumatic stress disorder. After treatment, he gets his condition under control and returns to work where all is well for a while. However, the backlog caused by his absence places a heavy stress on the employee and the employer accuses him of poor performance. This stress results in the employee becoming ill again.
As alluded to earlier, South African Law requires employers to treat unwell employees gently. This does not mean that employers are required to go to the ends of the earth to accommodate employees with physical, emotional or mental problems. However, the employer is required to avoid discrimination against such employees and not allowed to dismiss them purely due to their illness.
In the case of Marsland v New WayMotor & Diesel Engineering (2009 CLL Vol. 18 No 9) the employee claimed automatically unfair dismissal and alleged that the employer had discriminated on grounds of mental illness. The employee. After sick leave, he returned to work and was initially treated with sympathy but later he felt excluded from work he had normally done. While this was done in order to relieve the pressure, it made him depressed as he felt left out and unwanted. The MD and the employee had a number of arguments during which the MD constantly verbally abused the employee who was increasingly excluded from his tasks. Eventually the employee had a relapse due to his anxiety and the pressure placed on him.
When the employee recovered and returned to work, he was called to a disciplinary hearing for poor performance, bad time keeping, breach of policies and misuse of company benefits. He was issued with a final written warning.
Later the employee was told that the marketing function was to be outsourced. The meeting became heated and the employee felt afraid that the MD (who had previously assaulted another employee) might hit him. The employee thus left and never returned. The employer frequently requested the employee to return to work but he refused.
He referred a case to the Labour Court for automatically unfair constructive dismissal. The employer attended court every day but gave no evidence. The Court found the employer’s behaviour was calculated to destroy the employer/employee relationship. This was due to the MDs constant verbal abuse of the employee in the presence of others making employment intolerable.
In Rapoo v Rustenburg Local Municipality [2020] 6 BLLR 533 (LAC) the employee, a senior manager, resigned after claiming that he had, due to his mental illness, been unfairly discriminated against by his superior who had given him menial work to do and had brought disciplinary proceedings against him. The Labour Appeal Court decided that the damages claim granted to the employee by the Labour Court had to stand.
One sympathises with an employer who is faced with an employee who is unable to perform a key post due to illness. However, the corrective measures taken by an employer must be very carefully considered, involve close consultation with the employee and must be implemented in a way that does not harass or demean the employee. Especially where the employee suffers from a mental or emotional illness and his/her manager is of a volatile nature, a labour relations expert should be used to ensure calm and legally compliant corrective action.
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
by Talent360 | Jul 21, 2020 | General
The employment of an employee can be terminated by the death of the employee, by his/her retirement, by dismissal, by mutual agreement or at the instance of the employee.
Normally, if the employee terminates the employment he/she does so by retiring or resigning and giving advance notice in writing. The amount of notice that the employee is supposed to give depends on a number of factors. Firstly, if there is no contract between the employee and employer providing for a notice period then the notice period as provided for by labour legislation must be applied. For example, the Basic Conditions of Employment Act (BCEA) provides that employers and employees covered by the BCEA must give, in writing:
- One week’s notice if the employee has up to six months’ service
- Two weeks’ notice if the employee has between six months’ and 12 months service
- Four weeks’ notice if the employee has 12 months’ service or more.
Secondly, an employment contract can provide for periods of notice longer than those prescribed by legislation as long as the employee is not required to give more notice than the employer is required to give.
Sometimes the employee just leaves without giving notice or works only a portion of the notice. This can cause operational problems for the employer who then does not have sufficient opportunity to make alternative arrangements to get the work done.
In some cases where the employee fails to work the required notice the employer is only too pleased to accept this. But, if the employer fails to object to the absence or shortness of the notice period being worked the employer is required to pay the employee out in lieu of the unworked portion of the notice!
A bigger problem arises for the employer where the employee fails to work-in his/her notice in a situation where the employer needs the employee’s services for the full notice period. This need could exist because:
- The employer needs the employee to complete a handover of his duties;
- There is a lot of work that still needs to be done ;
- Certain tasks can only be done by the employee;
- It will take time to find a suitable replacement;
- Clients need to be given advance warning of the employee’s departure due to a special working relationship between the employee and the client.
What can employers do if employees leave without working the required notice? Firstly, the employer can apply to court to issue an urgent order of specific performance. This is an order requiring the employee to work-in the required notice. Secondly, the employer could apply to court for damages caused by the employee’s failure to work the notice. However, should the employer sue for damages, it would have to be able to quantify and prove specific losses attached to the employee’s breach of the notice agreement.
For example, if the employer could show that it lost an order worth one million rand due to the employee’s premature departure the damages claimed from the employee would be one million rand. In the case of SAMRO Ltd vs Mphatsoe (2009, CLL Vol. 18 No. 9 page 82) the employee failed to work the notice that the employer believed he was contractually required to work. The employer therefore sued Mphatsoe for damages equivalent to the earnings that employee would have been paid for the period of the unworked notice. The Court decided that this basis for arriving at the damages amount was legally incorrect. It said that a suit for damages can only be satisfied by the amount of loss actually suffered by the plaintiff. However, as the employer was unable to show that it had suffered any specific loss, the Court was unable to award any damages. The Court commented that, if the employee breaches the notice agreement the actual damages caused could be zero or could be a lot more than the amount of the employee’s earnings.
The Court also decided that a clause in the agreement providing for a ‘calendar month’s notice’ will not always mean that notice must be given on the first of the month to the end of the month. The intention of the parties as to the notice period was more important in this regard.
The outcome of this case makes it clear that:
- It is difficult for employers to force employees to work-in their agreed or statutory notice
- Should the employer claim damages it must clearly identify and quantify the losses actually suffered
- Where the employer wants notice to be given on the first day of the month the employment contract should specifically provide for this instead of merely requiring a calendar month’s notice.
To buy our e-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact Ivan via [email protected] or 011-888-7944.
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
by Talent360 | Jul 20, 2020 | Course Search
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by Talent360 | Jul 20, 2020 | Course Search
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by Talent360 | Jul 17, 2020 | Course Search
About the course
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