by Lihle Menzeleleli | Feb 2, 2022 | Employers, General
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].
Employers fairly frequently demote employees. This could be for any of many legitimate and illegitimate reasons including:
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- The boss dislikes the employee
- The employee has broken a rule
- The employee’s work performance is unsatisfactory
- The boss wants to create a vacancy for somebody else
- Things have gone wrong and the boss needs a scapegoat
- The employer cannot afford to pay the employee’s salary
- The employee is not able to carry out his/her job due to illness or injury
Regardless of the reason for the demotion the employer is advised to hold a hearing before implementing a demotion for reasons of poor performance or misconduct. While the Labour Relations Act (LRA) does not specifically require a hearing in such cases it is important to hold a hearing because:
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- The spirit of the LRA requires that it is unfair to punish an employee without giving him/her a chance to defend the case
- Failure to hold the hearing will make it difficult to prove, on record, that the employee was guilty and that the reason for the demotion was fair.
What constitutes a demotion is not always straightforward. In different circumstances alleged demotions can occur in numerous ways including:
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- The employer gives the employee a letter stating that he/she has been demoted
- The employee’s pay and/or responsibilities are reduced
- The employee’s subordinates are taken away
- The employee is required to report to someone who used to report to him/her.
- An employee acting temporarily in one position gets transferred back to his/her old position
Regardless of the circumstances employers are advised to take the law into account before doing anything that could potentially resemble demotion. This is because, should the CCMA or bargaining council find the demotion to be unfair the arbitrator has the right to:
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- Reinstate the employee into the position from which he/she was demoted
- Award the employee compensation
- Apply any other corrective measure that he/she deems to be appropriate.
For example, in the case of Mavimbela vs Sterikleen (Pty) Ltd (2006, 11 BALR 1128) the employee had been a cleaner. He was later asked to carry out supervisory duties but, after failing to carry out these duties properly, he was relegated to being a cleaner. He therefore lodged a dispute at the CCMA for unfair demotion. The employer said that the employee had never been promoted but rather had been asked to carry out limited supervisory duties in return for receiving an allowance.
However, the arbitrator found that the employer had failed to prove that the employee had in fact performed poorly. He found therefore that the employer had acted unfairly and ordered the employer to pay the employee compensation equal to eight months’ of the extra managerial ‘bonus” granted when he was given the supervisory duties.
In Plaatjies vs RK Agencies (2005, 1 BALR 77) the employer offered the employee an alternative post at a lower salary due to the fact that the employer had lost a major contract. While the arbitrator accepted this as a valid reason the demotion was still unfair because the employer had failed to consult with the employee before making the offer. This CCMA decision is a frightening one because the offer of a reduced position made by the employer would, in my mind, itself constitute part of a consultation process rather than a demotion.
In Sass vs African Life Assurance (2005, 6 BALR 682) the employer demoted the employee for failing to make sufficient sales. The CCMA found this to be unfair as the employer had proved neither that the performance had been bad nor that it had followed legal procedure before implementing the demotion. The employer was ordered to reinstate the employee in the higher position.
In view of the above case decisions employers should never implement demotion before obtaining expert labour law advice as to:
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- Whether the demotion is merited
- The procedure to be followed in implementing a fair demotion
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
by Lihle Menzeleleli | Jan 25, 2022 | Employers
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].
Employers frequently misuse probation agreements to get rid of employees instantly because:
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- the employee has committed misconduct
- the employer wants to make space for a friend or cousin of the owner
- the employee ‘does not fit in’
- a manager ‘does not like the employee’s face’
As probation is not a licence to fire, ‘James Bond’ employers who think they have ‘007’ licences to fire at will are likely to fall foul of ‘Dr No’ arbitrators at the CCMA. In labour law, ‘probation’ simply means ‘testing the employee’s work performance’.
A probationary employee is one who has a conditional employment contract (written or unwritten). That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is or is not able to carry out the work properly. While this describes the purpose of the probationary period it does not mean that the employer has a free licence to fire the probationer if the employer believes his/her performance to be unsatisfactory.
The employer is allowed to extend the employee’s probation period in order to further assess the employee’s performance. This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.
However, before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension.
The biggest mistake that employers frequently make is believing that the conditional nature of the probationary employment significantly reduces the probationer’s labour law rights. On the contrary, the employer that places an employee on probation has a number of legal obligations including:
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- Making it clear that the employee is on probation
- Clarifying the length of the probation period
- Setting reasonable performance standards
- specifying for and explaining to the employee the performance standards required
- evaluating and monitoring the employee’s performance against the set performance standards
- informing the employee of performance shortcomings
- issuing warnings to the employee where he/she is failing to meet the required standards
- assisting, guiding, counselling, training the employee where necessary
- before dismissing the probationer, giving him/her an opportunity to state his/her case.
For example, in the case of Fraser vs Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility. She took the matter to the CCMA where the arbitrator agreed that she was indeed guilty of this misconduct and that it was serious enough to merit dismissal. Despite this the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges.
In the case of Tharratt vs Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.
These cases highlight the fact that probationary employees are strongly protected by labour law. At the same time, probationary employees often do not work out as well as was hoped. While the law allows the dismissal of such failed employees the employer must follow strict procedures first.
Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in:
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- Designing a probationary policy and procedure
- Setting realistic performance standards
- Designing measures for monitoring and evaluating work performance
- Training management in probation law and in the implementation of the probation policy and procedure.
To book for our 11 March webinar on MANAGING COVID AND COMPULSORY VACCINATIONS please contact Ronni on 0845217492, (011) 782-3066 or [email protected].
by Lihle Menzeleleli | Jan 14, 2022 | Employers
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].
While all retrenchments are painful and often devastating for employees it is normal, especially during Covid, for employers to retrench employees because the employer cannot afford to pay their salaries. It can also happen that those executives responsible for managing the company are disciplined for allowing the financial losses to occur. However, employers must be careful not to mix up the retrenchment of an employee with his/her dismissal for misconduct such as, for example, dereliction of duty.
Employers must be equally careful not to discipline executives or other employees for ulterior motives. For example, where the board of directors is under pressure from shareholders to explain the company’s losses, it may look for scapegoats in order to relieve this pressure.
Often therefore, the CEO or MD lands on the carpet in front of the board of directors. Sometimes the accusing finger is in fact pointed in the right direction but just as often the wrong head rolls because the culprits have conspired to scapegoat an easy target or someone outside the main clique.
Very frequently, by the time the scapegoat has been able to recover from the shock of the false allegations and has perhaps even been able to throw some doubt on the allegations against him/her, the damage has been done. That is:
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- the culprits have closed ranks and testimony is hard to come by
- important documentary evidence has been doctored or destroyed
- the powers that be have decided that the real culprit is not expendable
- it has been agreed who will have to be sacrificed
- acrimony and backstabbing have destroyed the working relationship and the scapegoat no longer wants to stay with the company or other organisation.
Scapegoating can result not only in the unnecessary loss for the employer of key skills but can also tarnish the reputation of the employer. From the employee’s point of view his/her name will have been muddied and his/her career prospects may have been damaged. However, in certain circumstances employees can block attempts at scapegoating.
For example, in the case of Van As vs African Bank Ltd (2005, 3 BLLR 304) the employer suffered serious financial losses and hence instituted disciplinary proceedings against its Chief Executive Officer who was suspended pending a hearing. Before the hearing was convened the employer and the CEO signed a retrenchment agreement in which it was agreed that the CEO would leave the company for reasons of operational requirements. Despite this the employer decided to proceed with the disciplinary hearing.
The CEO applied to court for an order interdicting the employer from dismissing him for misconduct. He contended that:
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- The employer could not discipline him after a retrenchment agreement had been concluded
- The employer was merely trying to scapegoat him for the losses incurred by the bank.
The Court found that, by entering into the retrenchment agreement the employer had waived its right to dismiss the CEO for misconduct. It ordered the employer to desist from such dismissal and to adhere to the terms of the retrenchment agreement. It also awarded costs against the employer.
The cost of this matter to the employer must have been high because not only did it have to bear its own legal costs it also had to pay those of the employee and waste the valuable time on the court case.
This could have been avoided had the employer made proper use of the appropriate experts to:
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- assess the matter holistically
- investigate whether the CEO could really be blamed for the losses and whether there was sufficient proof of this
- decide whether discipline or retrenchment was most appropriate in practical terms and from a legal point of view
- help decide on a strategy that would satisfy the employer’s practical needs but at the same time avoid infringing the law.
by Lihle Menzeleleli | Dec 14, 2021 | Employers, HR & Recruitment
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].
Even without the effects of Covid absenteeism is a most problematic form of misconduct because it reduces productivity. Most employers therefore require employees who are absent from work due to alleged illness to provide proof, in the form of a medical certificate and/or a positive Covid test result, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness.
Covid complicates the process of dealing with allegedly sick employees because it is such a virulent disease. Therefore, when an employee presents with Covid-like symptoms, employers often send them home and require a Covid test to be done. But, even where the test result is negative, the employer might not allow the employee to return to work due to the possibility of a false negative result. This might require a second test to be done.
Section 23 of the Basic Conditions of Employment Act entitles employers to withhold payment of remuneration if the absent employee has failed to provide a legally acceptable medical certificate proving that the employee was ill. However, this only applies where the employee has been absent from work:
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- For more than two consecutive days or
- For two or fewer consecutive days recurring three times in the space of eight weeks.
Previously, the employer was entitled to withhold payment in the above circumstances and also, at the same time, to discipline the employee. However, one or two CCMA commissioners have found that withholding remuneration and also disciplining the employee constitutes double punishment. I strongly disagree with this view because the reason for withholding pay is merely to satisfy the principle of no work no pay and is not a punishment. However, due to this shift in the attitude of some arbitrators, employers need to beware of how they go about dealing with absenteeism.
Another problematic question is the validity of sick notes issued by traditional healers or sangomas. Generally speaking, employers are not expected to accept certificates issued by persons who are not medical practitioners registered with a council established by an act of Parliament. Many traditional healers do issue such sick notes and some of these appear to indicate that the healer is registered. However, the Department of Health has indicated that no traditional healers have been registered as yet. It thus appears that employers are not yet obliged to accept medical certificates from traditional healers. However, employers need to proceed with great care in such cases.
An even more vexed issue is that many medical certificates often do not constitute sufficient proof of illness. This is because the employee might:
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- provide a genuine medical certificate which does not cover the period of his/her absenteeism or
- amend what was a valid medical certificate or
- obtain a genuine blank certificate belonging to a genuine and properly registered medical practitioner and complete it so as to make it appear to be what it is not or
- obtain a certificate from a person masquerading as a medical practitioner.
Where a genuine certificate fails to cover the period of absenteeism the employer is not obliged to accept it.
Where the employer can prove that the employee has knowingly submitted a medical certificate amended by someone other than the relevant doctor this can be grounds for a disciplinary hearing for dishonesty. This also applies where the employee has completed a blank certificate and submitted it to the employer.
The situation becomes more complex where it is found that the medical certificate submitted was issued by a fake medical practitioner. It is clear that, should the employer establish this to be the case, it does not have to accept the medical certificate. However, the question arises as to whether, in such a case, the employer can dismiss the employee for submitting such a false medical certificate. The complexity arises due to the fact that the employee may not be aware that the person posing as a doctor is not a genuine medical practitioner.
That is, it can and does happen that people set up consulting rooms and advertise themselves as doctors despite the fact that they have either been struck off the role of the Health Professions Council or have never been registered with this council. Many such charlatans even print fake practice numbers on their certificates so as to make it appear that they are properly registered medical practitioners.
In many cases the employee is well aware that the certificate he has obtained is false because he/she has knowing bought the false certificate without being ill and/or without having been medically examined. This would justify a case of discipline for dishonesty. However, it is possible that a genuinely ill employee consults someone purporting to be a doctor and then innocently submits the impostor’s certificate to the employer. In this case the employee cannot be found to have been dishonest and a dismissal would therefore be unfair.
Employers therefore need to proceed with extreme caution before dismissing employees who submit questionable medical certificates and should get advice on this from a reputable labour law expert.
To view our experts’ debate opinions on thorny labour law issues please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the menu.
by Lihle Menzeleleli | Dec 8, 2021 | Employers, HR & Recruitment
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].
It is a common erroneous belief amongst employers that they protect themselves by employing staff without a letter or contract. In fact, the converse is true. The law does not make signed employment contracts compulsory, but the Basic Conditions of Employment Act (BCEA) does require employers to inform employees in writing of their particulars of employment such as:
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- The employer’s name and address
- The employee’s job title or job description
- Starting date
- Working hours
- Remuneration details
- Leave
The reason that employers need to put such provisions into the form of a contract rather than just a letter and to get it signed is not because the law insists on it. It is rather because the employer needs to prevent the employee from denying that he/she agreed to the terms and conditions contained in the document. A contract signed by both parties prevents such misunderstandings and/or disputes.
Employers need to understand that labour legislation is there primarily to protect employees rather than employers. Therefore, employers need to protect themselves by:
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- Knowing all the labour acts
- Knowing all the codes and regulations attached to the labour acts
- Understanding the significance of this legislation for the employer
- Including details required by labour law into signed employment contracts
- Adding into employment contracts further clauses designed to protect employers.
These include clauses to protect employers from:
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- Employee dishonesty
- Moonlighting
- Loss of clients
- Misuse of telephones, equipment and electronic facilities
- Absenteeism and late coming
- Breaches of confidentiality
- Incompetent employees
- Law suits from the employee’s previous employers
A great many employers have policies of various types but fail to include these in employment contracts. When the employee breaches the policy and gets fired the employer ends up at the CCMA or at a bargaining council. Should the employee then claim that the employer did not have such a policy and/or that the employee was never made aware of it then the employer is placed under onus to disprove this claim. Where the policy in question has been included in the employment contract signed by the employee the employer will have little difficulty in discharging this onus.
Even if the policy is not spelt out in the employment contract but is alluded to in the agreement the employer will have some protection. For example, it is not reasonable for the employer to include its entire disciplinary code in its employment contracts. However, the employer can include in the employment contract clauses such as:
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- The employee agrees to comply with the attached rules of conduct
- The employee agrees that he/she will acquaint him/herself with the employer’s disciplinary code available from the HR Department
- The employee has read and understood the employer’s disciplinary rules and agrees to comply therewith.
However, employers cannot always take for granted that employees understand the contents of employment contracts. This is especially so where the contract is written in complex legalese or in a language that is not the employee’s home language. In such cases employers are advised to replace legalese with plain English and to translate the contract into the employee’s home language.
Employers should further understand that the mere presence of a requirement in an employment contract will not always mean that the employee can be forced to honour such requirement. In the case of Wallace vs Du Toit (2006, 8 BLLR 757) the employer fired the employee for being pregnant. The employer claimed that the employee had agreed that her employment would be terminated if she fell pregnant. The Court found that even if the employee had entered into a contract agreeing to such a thing such agreement would have been unconstitutional. The employer was ordered to pay the employee one year’s remuneration.
Employers need therefore to:
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- understand that labour law gives them far fewer rights than obligations
- accept that their labour law obligations are very numerous, complex and extremely heavy
- protect themselves by understanding the law and its ramifications
- design employment contracts that protect them from losing labour disputes
To view our experts’ debate opinions on thorny labour law issues please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the menu.
