by angelique | Mar 26, 2021 | General
Employees are suspended from duty for different reasons that may include:
- One form of suspension is a temporary lay-off of employees due to operational circumstances. That is, during retrenchment consultations, either party may suggest temporary lay offs as an alternative to retrenchment. This might be implemented where the employees agree to the lay offs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid but would still be employees of the employer.
- Employers must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no good reason for the lay offs and the employer could well be forced to pay the employees for the lay off period. Where there is a large number of workers or where the lay off period is a long one this payment could come to an extremely high amount.
- The employer’s intention behind a suspension may be to make the employee’s working circumstances so uncomfortable that he/she resigns. This motive is both illegitimate and dangerous. Employees sometimes resign on being suspended and charge the employer at CCMA with constructive dismissal. However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign. Should the employee claim at arbitration that the suspension was a sham on the employer’s part the employer must be given the opportunity to show that it had good reason to suspend the employee and that there was some basis for the suspicion of misconduct.
- The employer may need to investigate serious allegations made against the employee. Where the employee is in a position of official or unofficial power the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation. This is a legitimate reason for suspension but the employee must be on full pay during the suspension period. The employer must be sure that the suspension does not have the effect of breaching a contractual right of the employee otherwise a civil suit could result.
- The employer may have a need to avert the danger of the employee repeating the alleged offence. For example, if the employee is suspected of assaulting a colleague, a suspension may be merited to avert the possibility of a repeat assault. Again, the employee must be on full pay during the suspension period and the danger in question must be real.
- Punishment of the employee by the employer. Here, the employee is normally suspended without pay. However, such suspensions are often illegitimate. This is because:
- Cutting an employee’s pay may breach the provisions of the Basic Conditions of Employment Act (BCEA)
- The employer may have no fair reason for punishing the employee and withholding his/her pay. Such suspensions are too often implemented while the employer is in a fit of rage.
Suspension without pay may, in certain circumstances be legitimate. This might be, for example, where the employee already has a final warning for the same type of offence but the employer does not necessarily wish to dismiss the employee. The employer may then give the employee a choice of dismissal or an agreed suspension without pay for a limited period (preferably not more than two weeks).
In the case of American Products Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[2021] 1 BLLR 64 (LC), after the employee was involved in an accident while driving a company vehicle, he was immediately suspended without pay. The respondent Commissioner subsequently ruled his suspension unfair and awarded the employee compensation of six months’ salary.
The Labour Court on review upheld this decision and dismissed the employer’s review with costs.
In the case of Mabitsela vs SAPS (2004, 8 BALR 969) a policeman was suspended without pay pending a charge of murder. The police regulations do allow for such suspensions to be without pay. However, Mabitsela claimed at the bargaining council that his suspension was unfair because he had been on unpaid suspension for five months. The arbitrator found that it had been unfair to implement the suspension without pay.
This case shows that, even where regulations allow employers to suspend employees without pay this may still be found to be unfair under the circumstances. If a suspected murderer can win such a case it would be even easier for employees who have committed lesser offences to win their cases.
The issue of when suspensions are fair and appropriate is not clear cut and employers are warned not to implement suspensions until they have obtained advice from a reputable labour law expert.
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: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
by angelique | Nov 27, 2020 | General
Beyond discounted TVs and toilet paper, Black Friday offers a unique opportunity for a complete career change. Those who’ve enjoyed working from home during lockdown can leverage Black Friday to find specials on remote work equipment.
With the latest portable tech in hand, savvy shoppers can launch a new office-free, adventure-filled lifestyle.
“Black Friday and Cyber Monday can be a great time to secure deals on things that you actually need. Those aspiring to live a location independent lifestyle should look out for products that will make it easier to work from anywhere – be it at home, a log cabin in the Hogsback mountain village, or a street café somewhere along Durban’s bustling Florida Road,” says Tom Gibbons, Director at the TEFL Academy, South Africa’s leading course provider of teaching English as a foreign language.
Gibbons recommends keeping an eye out for the following discounted items; a portable power bank to allow you to work while travelling, a sturdy laptop stand so you can turn any surface into a desk, a ring light to improve video conference visibility, along with a quality webcam and noise-cancelling headphones, to help limit distractions when you’re working in a busy space. You’re likely to get some great deals on laptops too – look out for something lightweight with a decent battery life.
In addition to physical products, Gibbons advises investing in online courses and qualifications that will help you secure guaranteed income when you’re starting out. “For example, an online TEFL qualification was a gateway to remote work long before Covid-19. During lockdown, it provided a reliable income for many people.
With increasing international demand for online English teachers, South Africans teaching online can expect to earn average salaries of between R190 and R560 per hour, depending on experience.
Beyond Covid, it presents an opportunity to work anywhere in the world with a laptop balanced on your knees, feet in the sand, and sparkling azure water just metres away.
“The pandemic has demonstrated the flexible nature of work, thanks to technology. At the same time, it’s also highlighted the uncertainty of tomorrow. The most important takeaway from this, is that there’s no better time than right now to become independent, and to make your dreams happen,” says Gibbons.
Offering accessible, flexible and cost-effective ways to get TEFL qualified, The TEFL Academy provides internationally accredited and regulated online courses. This Black Friday, they are offering up to 60% off their Level 5 TEFL courses to help you kickstart your digital nomad lifestyle.
* For more information, visit theteflacademy.com.
by Aaliyah Fortuin | Nov 20, 2020 | Employers, General
As South Africa continues to make its economic recovery millions of South Africans have been left jobless. From retrenchments to contracts not being renewed, losing a job can be one of life’s most stressful experiences. However, it’s important to note that this isn’t unique to South Africa but ours is one of the highest in the world. Everywhere we drive or walk, we see countless homeless people or beggars standing at the robots (aka traffic lights), trying to make ends meet. Consistently measuring an unemployment rate of above 20%, we face massive socio-economic challenges such as poverty and inequality that have a ripple effect on all who live within our borders.
According to data Statistics South Africa, South Africa’s unemployment rate has had a staggering increase of 7.5%, taking the country’s unemployment rate to 30.8% in the third quarter of 2020. There are now fewer jobs in South Africa than there were at the start of 2020.
Despite the first quarter being when we experienced the COVID-19 hard lockdown and severely limited economic activity, the second quarter unemployment stats only showcase a fraction of the devastation of the pandemic.
While the official figures take into account the labour force who are unemployed but are actively looking for work, the total unemployment figure includes anyone who has a job, wants a job and those who aren’t looking for work. There is quite a big difference between the official and expanded definition of unemployment, which raises a lot of questions as it all comes down to who is or isn’t counted. Ultimately, this means that to be counted as being officially unemployed by StatsSA, unemployed people must be actively looking for work.
While the latest unemployment figures paint an alarming picture regarding the country’s unemployment crisis, Minister of Employment and Labour, Thulas Nxesi states that despite these figures, South Africa will eventually improve their current economic crisis.
Even if you didn’t love your job, it may have provided you with some structure or a purpose in your life and suddenly finding yourself out of work can leave you questioning your identity or what the future may hold for you. Being unemployed may also affect your overall mental and emotional health, which could eventually lead to depression and anxiety.
While the stress and worry can feel overwhelming, there are quite a few resources that are available to make the transition slightly easier. The first of these resources to consider is the Unemployment Insurance Fund (UIF) so you can get a steady stream of income while you are finding your way.
Most importantly, while the situation may seem bleak right now, it’s not the end and the country is on the path to economic recovery so things will improve.
by Aaliyah Fortuin | Nov 13, 2020 | General
Dream job or not, you’re bound to encounter work related stress from time to time. However, the stress can be overwhelming and result in burnout.
Although burnout isn’t a medical diagnosis, some medical experts believe that other mental health conditions such as anxiety and depression can be a result of it.
How do I know I’m experiencing a burnout?
Does your job make you feel stressed or do you dread going to work? If so, then you may be experiencing symptoms of burnout. While there may not be a quick fix way to handle or deal with burnout, there are a few ways you could help alleviate, avoid or recover from it.
Step back and take a break
If you’re experiencing a total loss of motivation and no energy then it’s time to step back and take a break. You may not be able to go on a full vacation, but taking a few days off for your mental and physical health can do you good.
During this break, try to shut yourself off from work and to focus on things that genuinely make you happy whether it’s spending time with your family or simply relaxing and watching your favourite tv show or movie. This is the perfect time for a little self care.
Get some rest
It goes without saying that when you’re stressed, you look for ways to unwind and destress. One way you can fully give your body the break it needs is by getting enough sleep. With enough sleep you’ll be able to restore and protect your well-being and mental health.
Manage your workflow
Try not to say yes to every task you get then prioritise and work based on your capacity. Keep a checklist or a to-do list to help manage your workflow while staying organised.
Be realistic and ask yourself whether or not you’ll be able to meet the deadline and whether or not it will affect your overall progress and performance.
While you may not be immune to experiencing burnout, by simply understanding what causes it and how you can deal with it, you’ll be able to create a happier and wholesome working environment for yourself.
Keep an open mind and try not to prioritise the demands of work over your mental and physical health.
Written by Aaliyah Fortuin
by Aaliyah Fortuin | Nov 9, 2020 | General
As South Africa continues to make its economic recovery as a result of the COVID-19 pandemic, many businesses’ have had to make the difficult decision in closing their doors and working from home for the employees’ safety.
What does it mean to work remotely?
While it may seem daunting at first, working remotely can be quite efficient and less stressful. The most obvious advantage is you get to cut out the hours you spend sitting in traffic.
Remote working or ‘telecommuting’ means that instead of coming into work, you can work in any environment whether it’s at home, your own office space or even a coffee shop. Thanks to the digital age, you can complete assigned tasks, projects, campaigns, communicate and manage your team anywhere, as long as you have a laptop and stable internet connection.
The benefits
Growing in popularity, remote working has gradually changed the way we work, the tools we use and how we communicate with others. What was once a rarity in most sectors, has quickly become a defining feature for the future of work.
Better life balance
Offering workers more flexibility in their hours, employees can now choose the time they wish to start and end their day, while still ensuring that their hours required are met. This is extremely beneficial as it allows you to have control over your schedule especially when it comes to your personal life needs.
Less Travelling
With so many South Africans relying on public transport to get to work, working remotely lightens the burden and stress of travelling into work. By working from home, employees no longer have to worry about the stress of getting to work on time or sitting in traffic, allowing you to focus on getting more rest or simply having more time to have a healthy breakfast.
Geograph Location
One of the key benefits of working from home is having the luxury of having control over your location. While some employees may have not had access to the tools and resources needed to work from home, those who do can work from anywhere, anytime. For employers, it lightens the load on paying for office rental space, especially if they’re located in a city with a higher cost of living.
Offering quite a few benefits, it is clear that working remotely won’t just be something that works at present but instead could be something many more businesses will continue to implement in the near future.
Written by Aaliyah Fortuin
by angelique | Sep 21, 2020 | General
The Labour Relations Act (LRA), in its definition section says that an employee is someone who works for an employer. However, the designers of the LRA failed to define the term ‘employer’. This renders confusing our understanding of what an employer is and what an employee is. Despite the absence of a definition of an employer the LRA uses this term very frequently in placing heavy obligations on the employer by dictating, for example, that:
- Within 30 days of receiving a notice from a registered trade union the “employer” must meet the union to conclude a collective agreement [Section 21(3)]
- An “employer” must disclose to a trade union representative (shop steward) all information relevant to the performance of his/her effectively [Section 16(2]
- A dismissal is unfair if the “employer” fails to prove the dismissal was for a fair reason or was affected in accordance with a fair procedure [Section 188(1]
It may seem that the reason for the omission of the definition of an employer is that such definition is not necessary because it is obvious. However, more than once, when deciding who is to be held liable, the question of who the employer is has been raised. Is it the contracting company or the contractor’s client? Is it the employment agency or the entity that makes use of its services? Is the closed corporation the employer or is it the members of the cc? Is it the subsidiary company or is it the holding or parent company? The answers to these questions are not always clear cut.
For example, in the case of Group 6 Security Pty) Ltd & another vs Moletsane & others (2005, 11 BLLR 1072) the employee was dismissed after an altercation with the employer. The CCMA ruled that the dismissal was unfair. The arbitrator found that the security company and one of its shareholders were jointly and severally liable for the payment of compensation to the employee and for the employee’s legal costs. The Labour Court, on hearing the review application, ruled that “the veil of a corporate entity may be pierced only when there are allegations of fraud, dishonesty or improper conduct.” In the Group 6 case the Court could find no misdoings. The shareholder who had been found by the CCMA to be jointly liable for the unfair dismissal had merely told the employee that the company was an empty shell and this did not constitute dishonesty. Also, the shareholder had not been a cited party at the arbitration hearing; he had only been a witness. The CCMA had therefore been wrong to make the shareholder jointly and severally liable for the compensation and costs to be paid to the employee.
What would have happened however, if the shareholder had been cited as a co-respondent at the CCMA and if he had been found to have committed an improper act. It is possible that the Court would have allowed the CCMA to look beneath the corporate veil for the person responsible.
In the case of Footwear Trading cc vs Mdlalose (2005, 5 BLLR 452) the employee was dismissed and won an award from the CCMA for compensation. The award was made against the employer, Fila (Pty) Ltd a company closely associated with Footwear Trading. The employee applied to the Labour Court for an order to make the CCMA’s award an order of court. Fila told the Court that it was dormant and that Footwear Trading had taken over certain of its assets. The employee also sought an order declaring Fila and Footwear Trading to be co-employers and therefore jointly and severally liable. Footwear denied that it was joined to Fila claiming that it merely carried out administrative tasks for Fila. The Labour Court rejected this and declared the two companies jointly and severally liable for the compensation payment due to the employee.
Footwear Trading then appealed against this decision to the Labour Appeal Court which found that:
- The LRA does not define “employer” and that therefore the definition of this term must be derived from the definition of an “employee” which is someone who provides services. An employer is therefore a person who “receives services”.
- Legal personality may be disregarded where a corporation is a mere alter ego or conduit for another person
- Footwear Trading was in control of the business even if it was a separate legal entity and not technically the employer.
- Footwear Trading was confirmed to be jointly liable for payment to the employee of compensation and the appeal was therefore dismissed.
The above is a warning to employers that the use of subsidiaries, associate companies and other surrogates for purposes of avoiding labour law obligations is extremely risky. It is far wiser to utilise available labour law expertise to ensure that the law is properly complied with so as to make ducking behind technicalities unnecessary.
To observe our experts debating hot labour law topics please go to www.labourlawadvice and click on the Labour Law Debate item in the menu.
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: ivan@labourlawadvice.co.za.
