by Lihle Menzeleleli | May 16, 2022 | Employers
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 too often misuse disciplinary warnings or avoid using them at all because they are unsure of how the law allows them to use such warnings. In labour law the main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve. The following will assist employers to use warnings as a means of improving employee conduct and performance without infringing employee rights:
What is a disciplinary ‘warning’?
A disciplinary warning is an oral or written statement made by an employer informing the employee that his/her conduct or performance level is not acceptable and that any further failure to meet the required standards will result in stronger measures being taken. In this sense a warning is not a punishment. Instead, it is a notification that further corrective measures could follow.
When is the giving of a warning appropriate?
When it has been established that a less serious offence (one with relatively mild potential consequences) is committed it is most often appropriate to issue a warning to the employee. The level of warning (oral, written or final warning) to be used depends on the level of seriousness of the offence and on whether previous valid warnings have been given.
When is a warning inappropriate?
Where the offence is very mild a counselling may be better than a warning. For example, if an employee is five minutes late for work for the first time a mild rebuke or counselling session will suffice.
Where an offence is very serious or a final warning has already been given, then in some case, a warning is unlikely to have the desired effect, and stronger discipline may be appropriate.
Can warnings be cancelled?
The disciplinary policy of some employers allow employees to appeal against warnings. Even where this is not so the employee concerned is entitled to refer the warning to the CCMA or bargaining council. If the arbitrator finds the warning to have been unfair he/she is empowered to remove the warning.
Is the employer entitled to combine a warning with other measures?
The LRA is silent on this question. It would be unfair to punish an employee twice for the very same offence (i.e. for the same incident). However, as a warning is not, in my view, a punishment it can be argued that a warning could fairly accompany another corrective measure. For example, where a driver is guilty of damaging the employer’s vehicle it may be appropriate for the employer to give the driver a refresher driving course but also to warn him/her that, should he/she again damage employer property, stronger action will be taken.
Can an employee be dismissed for a repeat offence after having received a final warning for a similar offence?
The answer to this question is ‘yes’ provided that:
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- There is no reasonable alternative corrective action to the dismissal and
- The final warning is valid
When is a final warning valid in terms of being usable in justifying a subsequent dismissal?
There is a point of view that a disputed final warning cannot be used as an aggravating circumstance to justify a subsequent dismissal. This view is linked to the notion that the employee, when disputing the dismissal can, at the same time, dispute the validity of the final warning that motivated the dismissal. However, I am of the alternative view that should the employee wish to dispute a final warning, he/she can only do so within 90 days of having received that warning. To be allowed to raise it later at the unfair dismissal arbitration stage is to me unfair unless condonation for the lateness of disputing the warning has been properly applied for and has been granted.
However, the employee would have the right to argue at any stage that the final warning was invalid if the warning had passed its expiry date by the time the subsequent incident of misconduct took place. In the case of NUMSA and Others vs Atlantis Forge (Pty) Ltd (2005, 12 BLLR 1238) the employer dismissed a group of employees who had embarked on an unprotected strike. The dismissal was based largely on the fact that the employees had previously received a final warning for similar behaviour. However, the Labour Court reinstated the dismissed strikers because the final warnings in question had expired by the time the employees committed the second offence.
Wise employers therefore tread very warily before dismissing employees even if they have previously received final warnings.
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 Lihle Menzeleleli | May 9, 2022 | Employers
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.
Due to state capture loadshedding, unexpected power outages, Covid and maladministration South Africa’s economy is in crisis. The biggest fallout of this economic weakness is the very high number of retrenchments in this country.
Many employers are tempted to use Covid as a reason to retrench even when the disease is not the true spur for the retrenchment decision. Such employers often sidestep the legal proedures for retrenchment believing that Covid gives them a licence to terminate jobs quickly. However, despite Covid, the law still requires that:
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- The employer follows a fair procedure aimed at an attempt to find alternatives to retrenchment. This involves good faith consultations with the employees concerned or with their representatives.
- Fair or agreed criteria are used to decide which employees should be targeted for retrenchment.
- There is an acceptable reason for the need for retrenchments.
Section 213 of the LRA indicates that the reasons for retrenchment may be based on the economic, technological, structural or similar needs of the employer. It is necessary to look at each of these reasons more closely.
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- Typically, economic reasons given for the need for retrenchment include the ability to make money or to retain sufficient funds to continue operations. The courts are divided on whether the desire to increase profits is a fair reason for retrenchment.
- Technological reasons advanced for the need to retrench often include electronic advances that might reduce the need for labour.
- Structural reasons advanced for the need to retrench include the need to flatten the management structure.
However, there are other operational circumstances that could justify the need to retrench. In the case of Tiger Foods Brands Limited vs L Levy (CLL May 2007 page 102) the employer wished to introduce a system whereby employees would work on public holidays. The employees embarked on a strike in protest against this move and assaulted replacement workers. Also, a manager was shot and several other received death threats. As the company was unable to identify the perpetrators it concluded that it was unable to continue managing the workplace. It therefore decided to consider retrenching several employees. The union disputed the CCMA’s jurisdiction to facilitate the retrenchment consultations on the grounds that the reasons for the proposed retrenchments did not fall under the definition of operational requirements in section 213 of the LRA. The CCMA agreed with the union.
Later the Labour Court the Court found that the CCMA was wrong. It found that the CCMA arbitrator had, amongst others, made the error of ignoring the last part of the LRA’s definition of operational requirements that says: “or similar needs of an employer”. The Court decided that the company’s need to protect its managers and to manage the business fell under the definition of ‘operational requirements’ as they affected the viability of the business. These were grounds “similar to economic, technological or structural needs.”
In my view this finding makes sense. It seems that the legislators’ decision to include in the definition “economic, technological or structural needs” was based on the intention to give examples of what operational requirements entail rather than to consider this list of three needs as exclusive. The inclusion of the phrase “or similar needs” makes it clear that the definition should be interpreted broadly rather than narrowly. It would make no sense to include some types of operational requirements and to exclude others arbitrarily.
Employers are warned not to interpret this finding as a licence to invent their own reasons for retrenchment. Should the reasons given for retrenchment be found by the courts to be bogus or not to constitute operational requirements the employer will lose the case. This would probably be extremely costly for employers because a likely remedy for the unfair retrenchments will be the reinstatement with full back pay of all the retrenchees.
For example, it would be folly for an employer to retrench employees on the basis of its operational requirement for ‘employees who perform their work well’. While the need for good work performance can be argued to be an operational requirement there is a separate legal procedure prescribed in Schedule 8 of the LRA for dealing with poor performance. In the case of NEHAWU vs Medicor (Pty) Ltd (2005, 1 BLLR 10) the Labour Court forced the employer to reinstate 67 unfairly retrenched employees with full back pay. This was because the employer had used the retrenchment process to get rid of alleged poor performers.
In the light of the above, before dabbling in the dangerous area of retrenchments, employers should obtain legal advice from a reputable expert in labour law.
To attend our 27 May webinar on MANAGING CONFLICT IN THE WORKPLACE please contact Ronni on [email protected] or 0845217492.
by Lihle Menzeleleli | Apr 19, 2022 | Employers, Jobs
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.
It is contentious as to whether second generation outsourcing falls under section 197 of the Labour Relations Act, which is the law protecting employees when a business or a part thereof is taken over.
In the case of SAA vs Aviation Union of SA obo Barnes the airline transferred its Infrastructure and Support service (I & S service) to a company called LGM as a going concern and accordingly transferred the relevant employees to LGM under section 197 of the LRA.
Before LGM’s contract with SAA expired SAA fired LGM and sought tenders from other contractors to take over the service. However, SAA did not include in the tender documents the requirement that the tenderers had to undertake to take over all the LGM staff providing services to SAA. Therefore, before any tender could be considered the union applied to the Labour Court for orders that, in effect, would prevent any takeover of the services until the LGM employees were first taken over by the new service provider and that would declare any retrenchment of the LGM staff automatically unfair.
The Labour Court refused to grant such orders for reasons including that second generation outsourcing would become untenable and because section 197 of the LRA did not cover second generation outsourcing. This was because section 197 (1), in effect, defines a transfer in terms of this section as a transfer of a business or part thereof “by” one employer to another. In a situation where the I & S service of SAA would be transferred to a new contractor (i.e. whichever tenderer won the contract) the I & S service would not be transferred by one employer to another because SAA, who ‘owned’ this service, was not the employer (LGM was) would be the one to transfer the service to the new contractor.
The LAC overturned the LC’s decision and found that:
If the LC’s interpretation were applied it would directly conflict with the purpose of section 197 which was to protect employees from losing their employment due to a transfer of a business or part thereof. The LAC preferred the purposive interpretation of the meaning of the word “by” which is that, although it would technically be SAA initiating the transfer of the I & S service to the new contractor, the service would effectively be moved by LGM to the new contractor even if this was done via the auspices of SAA. That is, while it would be SAA making the transfer decision, the old employer, LGM would be the one to be effecting the transfer.
Another way of explaining this is that the word “by” in the definition of a transfer of a going concern should, in the view of the Court, be read to mean “from”. This would mean that, although it would be SAA who would legally transfer the I & S service to the new contractor, the service would be transferred from LGM to the new contractor thus rendering the takeover a section 197 transfer.
SAA then took the matter further to the Supreme Court of Appeal which reversed the LAC’s decision. It said that the literal interpretation of section 197 should be applied and that applying the LAC’s interpretation would require every new service provider to take over the staff of any previous service provider every time the client changed its mind as to who it was going to use
The union then took the matter to the Constitutional Court and won its case. However, the Court said that second generation outsourcing would not fall under section 197 in cases where the client had never carried out the function itself but had aoutsourced it from day 1. This is because, in such a case, there would never have been a transfer of the function, and section 197 applies only to transfers of businesses or part thereof.
In Jenkin vs Khumbula Media (2010, 12 BLLR 1295) the applicant was told that his contract had lapsed after the business had changed hands twice. The Court rejected the employer’s version that the employee had been a fixed-term contractor and found that the employee had, in effect, been retrenched. It also found that on both occasions of takeover these had been carried out as transfers as a going concern. The employer had conducted only one meeting with the employee and this one meeting was not held in good faith because the employer had not even made its intentions clear. The retrenchment was thus procedurally unfair and the employer was ordered to pay the employee eight months’ salary in compensation plus severance pay calculated on the basis of 29 years of service.
Even the judges in the Courts differ with each other as to whether a business or part thereof has been transferred in terms of section 197 or not. Therefore, employers need to get expert advice before effecting any transfer that could possibly be seen as a section 197 takeover. Also, everyone in management and other dealing with employee dismissals must be thoroughly trained in the complexities and requirements of the law.
To book for our 5 April Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or [email protected]
by Lihle Menzeleleli | Apr 12, 2022 | Employers
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
In my previous article I explained that the New Code of Practice: Managing Exposure To Covid In The Workplace, 2022 requires employers to conduct a special health risk assessment (HRA) and to implement a plan to protect its employees from contracting Covid.
This code requires employers, via their HRA’s and plans to:
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- Identify employees who might be at risk of contracting Covid and/or who might pose a risk to the spread of the disease;
- Ensure the reporting of Covid symptoms by employees and isolation of employees who are diagnosed with COVID-19 and are symptomatic;
- Enforce all the workplace protective measures required to be taken;
- Implement a procedure to resolve any issue that may arise from the HRA by an employee invoking the right to refuse to work.
The Covid risk plan may include social distancing measures including minimising the number of workers in the workplace through rotation, staggered working hours, shift and remote working arrangements, use of PPE, hygiene measures.
An employer must notify its workers of the contents of this Code and its plan and the manner in which it intends to implement it.
It must provide workers with information via means including, where reasonably practicable, leaflets and notices placed in conspicuous places in the workplace informing workers of:
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- the dangers of the virus, the manner of its transmission, the measures to prevent infection
- the symptoms associated with COVID-19
- the nature of vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contra-indications for vaccination and the nature and risk of any serious side effects
In giving effect to this Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate.
Employers must also make sure, amongst other things, that:
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- employees who run out of paid sick leave must be assisted to make application for an illness benefit from the Unemployment Insurance Fund.
- Employees with Covid are not discriminated against
- if there is evidence that the worker contracted COVID in the course of employment, the employer lodges a claim with the Compensation Commissioner
- it keeps the workplace well ventilated by natural or mechanical means
- it notifies every employee identified as potentially contagious of the obligation to be vaccinated;
- gives employees paid time off to be vaccinated and provides transport for the employee to and from the nearest vaccination site.
If an employee refuses to be vaccinated, the employer must:
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- counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
- take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
If an employee produces a medical certificate attesting that an employee has contra-indications for vaccination, the employer may refer the employee for a medical evaluation for confirmation at the employer’s expense.
If the employer accepts the medical certificate or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications for vaccination, it must accommodate the employee in a position that does not require the employee to be vaccinated.
This last requirement is likely to pose a major burden on an employer that truly has no available position in which to place the unvaccinated employee. On the one hand the employer is strictly required to protect its workforce from colleagues with the disease, and on the other hand is required to keep the unvaccinated employee in service in a position that poses a risk of spread of the disease. Employers in such an invidious position might consider resorting to an ill health incapacity process. However, due to the prescriptive wording of this code, such employers will need to consider their options with extreme caution before considering termination of the employment of such protected employees.
To attend our 27 May webinar on MANAGING CONFLICT IN THE WORKPLACE please contact Ronni on [email protected] or 0845217492.
by Lihle Menzeleleli | Mar 14, 2022 | Employers
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]. Web Address: www.labourlawadvice.co.za.
Appended to the Labour Relations Act is The Code of Good Practice: Dismissal. This Code requires an employer to consider a number of circumstances before dismissing a guilty employee. For example, the Code requires the employer to consider the gravity of the misconduct, the employee’s past record, length of service and personal circumstances. Case law has added to the factors that could or should be considered including factors such as the seniority of the employee, aggravating circumstances, provocation and other extenuating circumstances.
Collins Concise Dictionary defines ‘extenuating circumstances’ as circumstances that cause an offence or fault to appear less serious or to mitigate or weaken.
However, in the labour law context, I tend to think of mitigating and extenuating circumstances as being slightly different to each other. I see mitigating circumstances as any circumstances that might reduce the seriousness of the offence whether such circumstances emanate directly from the actual incident or not. Whereas I see extenuating circumstances more narrowly, as only those emanating directly from the relevant incident as opposed to general circumstances such as length of service that have no bearing on the merits of the misconduct.
An example of extenuating circumstances based on my definition is provocation. In both criminal and labour law, and especially where an assault or other abusive behaviour has taken place, provocation generally has an important role to play in considering the level of penalty of the offender.
As I mentioned in a previous last article, assault at the workplace is normally seen as serious misconduct because of:
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- the harm or potential harm to the victim of the assault;
- the potential disruption of workplace harmony;
- the potential for the employer to be sued for vicarious liability by the assault victim;
- the loss in working time due the need for an assaulted employee to to take sick leave
- the loss of business if the victim of the assault is a client.
Despite this, employers sometimes bungle disciplinary action against alleged culprits, and this is often because of the anger attached to incidents of assault or other unsavoury acts. This can be disastrous for the employer because section 188(1)(a) of the Labour Relations Act (LRA) makes it clear that the employer cannot fire an employee without good cause.
One area where employers struggle with misconduct penalties in general is where provocation is alleged. The employer got it right in the case of Francis vs The Clicks Organisation (2010, 3 BALR 325). In this case Francis, a manager told a subordinate to stop chewing gum. It is reported that, when he refused in an insubordinate manner she assaulted him and bit him to the extent that she had blood on her mouth. When she was fired for this act she told the CCMA that she had been provoked by his refusal to stop chewing gum and by his attitude. The arbitrator found that the subordinate’s behaviour did not amount to provocation at all. Instead, his behaviour amounted to insubordination which should have been dealt with via proper disciplinary measures. This together with the seriousness of the assault and the manager’s relative seniority to her subordinate rendered the dismissal substantively fair.
However, in CEPPWAWU obo Mudau vs Super Group Supply Chain Partners (2009, 2 BALR 123) a shop steward was dismissed for, amongst other things, swearing at supervisors. The arbitrator found that he had been provoked into this behaviour because his supervisor had used an obscene term while addressing the shop steward. The dismissal was therefore unfair.
The above decisions tell us that it is important for employers:
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- To deal with all alleged acts of misconduct coolly, calmly and without biting the offending employee
- To ensure that their managers are trained never to speak abusively to employees
- To give very careful and reasoned consideration to allegations of provocation by employees accused of misconduct. This is in order to establish whether the alleged act constituted provocation or not, whether the provocation was significant enough to be pertinent and whether the seriousness of the offence and/or aggravating circumstances outweigh the extenuating circumstances
- To keep themselves constantly updated with case law decisions that can effect the fairness of their disciplinary decisions.
To view our experts debating thorny labour law topics please go to www.labourlawadvice.co.za andclick on the Labour Law Debate icon.
