by angelique | Feb 19, 2019 | Employers
I AM a firm believer in performance planning and the power of a well-planned and measurable performance Improvement Plan. The performance improvement plan is designed to facilitate constructive discussion between a staff member and his or her manager to clarify the work performance to be improved.
It is applicable irrespective of whether the discussion is part of an annual review or takes place in the form of performance counselling associated with disciplinary action. It is implemented, at the discretion of the supervisor or manager, when it becomes necessary to help a staff member to improve performance. The supervisor or manager develops with the subordinate an improvement plan that is acceptable to both. The overall purpose and outcome is to assist the employee to achieve the desired level of performance. A performance improvement plan will differ from the annual performance development planning process in the amount and quantity of the detail. Employees who are performing their jobs effectively, and meeting the expectations of the performance development process, will not need to participate in performance improvement sessions Following a performance improvement session the manager or supervisor should monitor and provide feedback to the employee regarding his or her performance and may take additional disciplinary action, if necessary, through the company’s disciplinary process.
The supervisor should discuss the following:
• State performance to be improved by giving specific examples;
• Outline and discuss the level of expectation and that it must be performed consistently;
• Explain the level of support and resources that will be provided to assist the employee;
• Discuss the plan for providing feedback and specify the measurements to be used in evaluating progress;
• Explain the consequences if performance standards are not met.
Managers should be committed to helping their subordinates improve performance and that will be best achieved through counselling on performance problems. Counselling is a necessary ongoing interaction between a supervisor and an individual who works in his or her work area. Regular counselling brings performance issues to an employee’s attention and helps the employee to correct them. The goal of counselling is to work with the employee to solve performance problems and at the same time implement a performance improvement plan.
Various steps that should be followed in effective counseling or coaching include:
• Show confidence in the subordinate’s ability and willingness to solve the problem. Ask the subordinate for help in solving the problem. It is important for subordinates to feel that they have participated in arriving at a solution. That way you will get some form of “buy-in”’
• Describe the performance problem and illustrate it with specific examples. Focus only on the problem or behaviour that needs improvement and not the person. Discuss with the subordinate his/her view on the matter under discussion;
• Determine if any situation exists that might limit the employee’s ability to perform as desired. Discuss with the employee how these barriers might be removed. When a decision has been agreed, add the required actions to the performance improvement plan;
• Discuss potential solutions to the performance problem. Ask the employee for ideas on how to correct the problem or prevent it from happening again. Offer your suggestions;
• Agree on a final action plan and list what the employee, the manager will do to correct or improve the situation;
• Discuss the proposed feedback that will be given and agree when such sessions will take place. Make sure that the employee understands that the purpose of the feedback sessions is solely to establish progress with the performance improvement plan and to offer further assistance should it be necessary;
• Offer positive encouragement and reinforce your confidence in the subordinates competence and ability to make the required improvements.
Des Squire is a managing member at AMSI and Associates. You can call him on 082 800 9057 or email him at [email protected]
by angelique | Feb 19, 2019 | Employers
In the case of Moloi vs Quthing Construction and Developers CK (2007, 8 BALR 720) the accused was given a final warning after he had been repeatedly late for work and had displayed a ‘negative attitude’. When he refused to sign for receipt of the warning the employer felt that this was the last straw and decided to dismiss the employee for his negative attitude. The CCMA found that the dismissal was unfair because the employer had failed to give the employee a hearing to answer to the charge of refusing to sign for receipt of the warning and also found that refusal to sign such a document does not merit a dismissible offence.
Employers should learn the following from this case:
It is very risky to charge and/or dismiss an employee for something as nebulous as ‘negative attitude’. Rather, the charge should relate directly to something specific that the employee did that he/she was not supposed to or to something he/she was supposed to do that he/she failed to do. For example, it is better to charge the employee for late coming than for negative attitude if the employer believes that the negative attitude is causing the late coming.
Where an employee refuses to sign a written warning or other document served on him/her by the employer it is not safe to discipline the employee for such refusal. In my view, no person is compelled to sign any document should he/she not wish to do so. Therefore, such a refusal would constitute neither insubordination nor a negative attitude nor disrespect nor defiance. As stated by the arbitrator in the Quthing case cited above the employer, when faced with the employee’s refusal to sign for receipt need only get a third party to sign as witness that the employee has been given the document in question or that the employer has attempted to give the document to the employee and the employee refused to take it.
In Fourie vs Sabre Footwear (Pty) Ltd (2007, 8 BALR 700) the employee was dismissed for having sexually harassed a colleague. Although the degree and nature of this incident of sexual harassment was very serious the CCMA found that the dismissal was too harsh because it was an isolated incident and was unlikely to be repeated. In the light of the seriousness of this offence and in view of the heavy laws protecting employees from sexual harassment this finding appears somewhat surprising. However, it should be kept in mind that the policy of employer in this case provided for counselling for a first offence of sexual harassment. Nevertheless, no employer should be expected to adhere to such a policy in a case of serious sexual harassment.
In NUFAWSA obo Munjanja vs Peter Osborn Furniture cc (2007, 3 BALR 231) the employee was dismissed after taking his colleague’s cell phone used for business purposes. The arbitrator found that dismissal was too harsh a sanction in this case because the charge had been “unauthorised possession” of the cell phone and had not alleged that the employee had been dishonest. Also, the employer had failed to bring any evidence to show that the relationship of trust had been destroyed.
In Sasol Nitro v National Bargaining Council for the Chemical Industry and others [2017] 9 BLLR 883 (LAC) the employee was dismissed for storing pornographic material on the employer’s computer. The bargaining council arbitrator found the dismissal to be too harsh and unfair because he had not viewed the material during working hours, because a charge of dishonesty had not been proven and because his long and unblemished service had not been taken into account. The Court upheld the arbitrator’s award ordering the employee’s re-employment and dismissed the employer’s appeal with costs.
The general lesson to be learned by employers from the above cases is that arriving at a sanction that is going to satisfy the CCMA or bargaining council is extremely difficult. The surprising arbitration findings outlined above are only but a few amongst many astonishing findings recorded in case law.
The question that employers will ask themselves on being made aware of this problem is: ‘How do I decide on a penalty that is effective and fair to the employer, but at the same time avoids the ire of the CCMA or bargaining council?’ Solving this problem requires the highest level of labour law expertise necessary to access, understand and apply labour law case decisions to the case at hand.
To book for our 5 April Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or [email protected]
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 angelique | Feb 19, 2019 | Employers
SERVE THE DISCIPLINARY CHARGES PROMPTLY
And don’t bypass your own disciplinary policies
Sooner or later the labour law catches up with employers who fail to follow proper disciplinary procedure and to provide good reason for dismissals. This is because section 188 of the Labour Relations Act (LRA) gives the employer the onus of proving that it has been procedurally and substantively fair in dismissing employees. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.
No Labour Court decision illustrates these points better than the one delivered in Riekert vs CCMA and others (2006, 4 BLLR 353). In that case Riekert was fired for having gained access to confidential information without authorisation and for undermining the good relations of company management. He took the employer to the CCMA but the arbitrator upheld his dismissal.
He therefore took the arbitrator on review to the Labour Court where the judge made the following findings:
- The CCMA arbitrator had recognised that the employer had a very extensive disciplinary code but had not adhered to it
- Since the employer’s disciplinary code was incorporated in his employment contract the employee was entitled to insist that it be complied with
- Despite the above the arbitrator found that the employer had complied with the basic requirements of natural justice and that disciplinary codes were mere guidelines
- While it is true that disciplinary codes are merely guidelines this does not entitle employers to deviate from procedures as they liked
- It was unclear how the arbitrator arrived at the conclusion that the hearing was substantially fair since, contrary to the employer’s own code, the chairperson of the hearing had neither kept any minutes of the proceedings nor provided any explanation for his decisions
- The employer had waited six months from the time it became aware of the misconduct before bringing the charges against the employee. This was despite the employer’s own disciplinary code that required that charges be brought within a reasonable time.
- The employee had been denied the opportunity to call witnesses
- The CCMA arbitrator had been wrong in accepting the employer’s deviation from its own code in the absence of any compelling reason for such deviation
- No witnesses had been brought in respect of the charge of undermining good relations of company management and the arbitrator had heard nothing to provide any basis for that charge
- The arbitrator had not applied his mind to his decision that the employee was guilty of the charge of accessing confidential information without authority. The employer’s witnesses were not even able to remember the date of the alleged incident
- The arbitrator’s finding that the employee had not been frank in his testimony had neither been justified nor reasoned
- The arbitrator had failed to apply his mind to the evidence at all
- The arbitrator’s award was set aside
- The dismissal was substantively and procedurally unfair
- The employer was ordered to pay the employee R100 000 in compensation plus interest
- The employer was to pay the employee’s legal costs.
This case is of great importance as it provides employers with a number of extremely valuable lessons including that they should not:
- ignore their own disciplinary codes
- allow any unnecessary delays in notifying employees of disciplinary charges
- prevent an employee from bringing witnesses to his/her disciplinary hearing
- forget, before attending a disciplinary or arbitration hearing, to gather and prepare all evidence thoroughly.
by angelique | Feb 19, 2019 | Employers
Our articles over the past years have made it crystal clear that, for an employer, South African labour law is a jungle infested with endless hidden dangers. That is, there are numerous labour acts, regulations, codes and determinations that are mainly focussed on protecting employees. Some of these provisions are so incomplete or vague that they are often interpreted very differently by the arbitrators and judges appointed to implement them.
All of this means that, as with income tax laws and actuarial science, the untrained layperson cannot be expected to understand and implement labour legislation or to travel through the jungle of labour case law without a guide. The only guide qualified to lead employers through this perilous and harsh terrain is a labour law expert with a track record of experience in labour law.
The question is, how do you distinguish a true labour law expert from one who will give you the wrong advice, half-baked training and failed litigation? We are frequently called in to fix up such messes but sometimes too much damage has been done to save the employer from serious losses.
The solution is therefore not in the cure but in prevention. That is, every employer needs to have available, at short notice, a labour law advisor who can help to ensure that the employer does not fall prey to the jungle’s pitfalls all the time. However, it is extremely difficult to find and choose a labour expert who suits your needs and who knows what he/she is doing because:
- The lay business person may know enough about the law to be able to assess whether the so-called specialist truly is a labour law expert.
- There are a great many so-called labour experts around.
- The brochures and other promotional materials you receive may look impressive but could be exaggerated.
- The fee may be so low that it could tempt you to use the consultant.
With all these pitfalls it is extremely difficult to choose a labour representative who will keep you out of trouble rather than land you in it! There are a number of reputable and highly competent labour law experts in South Africa. The question is, how does the businessperson fight his/her way through the jungle of misinformation to find the right expert? A number of guidelines in this regard can be useful. Try to ensure that the labour expert you choose:
- Has a tertiary qualification in the labour relations field
- Has substantial experience as a labour law consultant or labour lawyer
- Has a solid, hands-on background in corporate industrial relations
- Is closely affiliated to a business labour forum through which he/she can keep in touch with the latest developments in industry, in trade union activity and in labour legislation
- Shows his/her updated knowledge of labour relations via publications, speaking at conferences and the presentation of seminars
- Has quick access to the latest labour statutes and to case law decisions
- Charges a fee that is affordable but not suspiciously low
- Is willing to share his/her knowledge via in-house training courses for you managers rather than trying to make you dependent on him/her
- Provides the full spectrum of labour law/industrial relations services a comprehensive service rather than fragmented assistance. The services that should be offered include:
- Chairing of disciplinary hearings
- Representation of employers at CCMA and bargaining councils
- Labour relations consultation, labour litigation and legal advice
- Industrial relations and human resources policy development
- Review and drafting of employment contracts
- Retrenchment, restructuring and rightsizing
- Drafting of outsourcing agreements
- Negotiating and drafting union recognition agreements
- Union wage negotiations
- Strike handling
- Writing of legal opinions on all Labour Law and IR/HR matters
- Conducting of IR audits
- Implementation of employment equity and completion of EE Reports and design and implementation of EE policies and plans
- Mentoring of HR/IR executives, managers, officers and trainee HR/IR professionals
Choosing the wrong expert is like using a blind guide. So, don’t enter the jungle until you have an expert who can see and deal with the dangers.
To book for our 5 April Johannesburg seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or [email protected]
by angelique | Feb 19, 2019 | Employers
THE Workplace skills plan (WSP) is intended to document skills needed in a company and to describe a range of skills development interventions that the company will use to address those needs. A WSP must be developed and submitted every year to comply with current skills development legislation. The WSP will normally be compiled by a registered skills development facilitator (SDF) or another qualified person and submitted to the sector education and training authority (Seta).
By complying with requirements, a company is granted access to the various Seta grants available for skills training. Compiling a meaningful WSP that takes into consideration the needs of the company, the employees or learners, as well as employment equity (EE) considerations is of vital importance to ensure that training that is beneficial and meaningful to all is offered. By including the correct training interventions in the WSP, that are aligned to specific yet verifiable needs, you are more likely to be able to recoup some of the rapidly diminishing skills levies. It is, therefore, essential that the SDF, HR practitioners, line managers and other key role-players in the organisation understand their role where skills development is concerned. All key role-players should be prepared to become involved and to assist in the development of a meaningful and professional plan that will meet both Seta and EE requirements.
A meaningful and professional WSP requires the inclusion of information from a variety of sources, including learners, managers, training staff, Setas and industry players.
Therefore, it is essential for all the above to have an understanding of the following key areas related to skills development:
- Work place skills planning;
- The workplace as a place of learning;
- The need for managerial buy-in and involvement;
- Skills planning – EE and broad-based black economic empowerment considerations;
- WSP, Sector Skills Plan and National Skills Development Strategy III;
- The need for conducting professional skills analysis;
- Industry and company specific scarce skills;
- A corporate qualifications framework related to the company;
- Job profiles, organising framework for occupations and related qualifications;
- Skills gaps and linking these to pivotal grant requirements;
- Linking skills development initiatives to career progression objectives;
- Role of the SDF and other key role players.
In many instances, line managers and other key role-players are not aware of the company policies where employment equity and skills development are concerned. The result is that there is no buy-in and the SDF gains no support from these individuals. Companies have an obligation to ensure that all managers are well versed in and abide by the company policies and procedures. Skills development and EE policies are not to be overlooked in this regard.
Des Squire is a managing member at AMSI and Associates. You can contact him at [email protected]
by angelique | Feb 19, 2019 | Employers
THINK of pro-working as co-working’s more mature older sibling, who is also better dressed and much more sophisticated.
Linda Trim, a director at FutureSpace, a high-end work space joint venture between Investec Property and workplace specialists Giant Leap, said: “Pro-working is rapidly growing in popularity with professionals and businesses worldwide that want a shared workspace that meets their polished image.” She said that pro-working has introduced a new kind of shared work spaced that is more advanced than co-working and which focuses more on services than just the space, much like a five-star hotel. “There is now a clear and growing distinction between co-working spaces that tend to cater to freelancers, and pro-working offices that offer a more formal, luxurious environment with facilities to match.”
She added that in the past few years, many long-established and professional businesses became conscious of the benefits that sharing a workspace had to offer, such as reduced cost office space, collaboration, networking, and exchanging skills and knowledge. “The problem they faced was that many locations on the market just didn’t fit with their identity. They were utilitarian and geared towards freelancers, as well as more informal start-ups and lacked services like the latest technology and formal spaces in which to meet clients. “They were hip and often grungy and clearly not the best fit for professionals who want their workspace to match their image – and not be disturbed by endless games of ping pong,” Trim said. But now that companies and consultants operating on a more traditional structure are learning about the benefits of sharing workspace with like-minded businesses, the market is looking to accommodate their needs. As much as pro-working is a play on co-working, it has evolved from a typical serviced office set-up, but with the added element of the best boutique hotel hospitality such as concierge services, personal assistants and access to gyms.
Trim said: “In addition, the pro-working offering is inspired by the community spirit that co-working has brought to modern office life. Pro-working aims to allow formal businesses to create communities with compatible professionals. “Co-working made this transition effortless for lone workers and small companies who depended on flexible work options. Now pro-working is doing the same for the professional set.” She said that one of the key workplace trends today was to really invest in your people and make sure they were happy and able to produce their best work, which is why the shared market is such a hit the world over. “Pro-working places are particularly appealing for companies that want to expand because the offices are ‘on-demand’ – there is no need for lengthy procurement processes or Financial Intelligence Centre Act requirements. “They also offer extreme flexibility in that the office space is there for as short or long a time as you want it,” said Trim.
Linda Trim is a director at workplace design specialists FutureSpace
by angelique | Feb 19, 2019 | Employers
THE Department of Labour intends to open a fraud case with the South Africa Police Service against an employer who misrepresented the company to obtain exemption from paying the National Minimum Wage (NMW). The department wishes to inform the public that it is in the process of imposing punitive measures. It is initiating a process towards withdrawing the granted exemption as per Section 5 of the NMW Regulations. Section 15 of the NMW Act makes a provision for an employer who cannot afford to pay the NMW to apply for an exemption. The Labour Minister, Mildred Oliphant, has published regulations in this regard relating to the form and manner in which exemptions must be made.
Applications for exemptions from paying the NMW are submitted through a NMW online system accessible from the department’s website. The office of the Director-General, Thobile Lamati, received an email on January 19 from an employee at Fleeceytex Knitting Company. The employee wanted to confirm the authenticity of an exemption notice displayed at the workplace. The employee said that the exemption notice displayed showed a rate of R16 per hour effective from January 17, which the employees were subsequently paid on January 18.
Upon investigation, the department found out that the employer indeed applied for an exemption from paying the legislated R20 per hour on January 17 and was granted an exemption based on the fact that he could not afford due to insufficient profitability and assets. However, the rate the exemption was granted for was R18 per hour and not the R16 hour displayed by the employer, which the department has a copy of as furnished by the complainant.
Section 5 of the NMW Regulations provides that an exemption notice may be withdrawn if:
• The employer has provided false or incorrect information that has led to the granting in its application for an exemption;
• The employer is not complying with the exemption notice;
• The employer’s financial position has improved to the extent that the employer is able to pay the NMW;
• There are other justifiable grounds for withdrawing the exemption notice.
Section 5 (3) further provides that before making a decision to withdraw an exemption notice, the delegated authority must be satisfied that in addition to the grounds mentioned above, that the employer has been consulted. The Chief Director of Labour Relations scheduled a meeting with the employer on January 22 at the workplace to try to ascertain his version of what had happened in the case. The employer confirmed that he applied and was granted an exemption at a rate of R18 per hour. Also, he confirmed that an exemption notice showing a rate of R16 per hour was erroneously displayed at the workplace and used to calculate employee’s wages that they were subsequently paid on January 18. Further, he said that they were investigating the case and would send the report as soon as the investigation was finalised. The employer said that they had since rectified the misrepresentation and that the correct exemption notice was now displayed at the workplace.
Considering the facts presented by the complainant and the employer, we have come to the conclusion that it is a case of fraud. The Department of Labour is planning to name and shame employers who engage in fraudulent activities.
Issued by the Department of Labour.
by angelique | Feb 19, 2019 | Employers
GIVEN the pressing economic times we live in, it’s not surprising that the so-called gig economy is evolving at the pace it is. It is a gig economy in which many choose to hire themselves out on a project basis, from gig to gig. Another way of making ends meet is to simply take on more than one job to keep the family finances in shape. But when does this become “moonlighting” or is it even okay?
The term was first coined in the early 1950s, and was used to refer to someone holding a second job, especially at night, “working by the light of the moon”. The question arises as to whether, or not, an employer has any right to object to an employee holding down a second, or even a third job, while being employed by them.
As a point of departure, it is important to understand that all employees have a duty to serve their employer in good faith. That means a number of things, including an obligation to protect, further and enhance the interests of the employer. It follows that, for example, an employee cannot do so if they work for employer A by day and employer B at night. Both employers would be faced with an employee who is exhausted. It is for this reason that many employers forbid moonlighting, which, by and large, is conducted clandestinely by an employee.
In the Labour Appeal Court case of Sappi Novoboard (Pty) Ltd v Bolleurs (1998-19 ILJ 784), it was held that: “If an employee does anything incompatible with the due or faithful discharge of his duty to his master, the latter has the right to dismiss him.” In the main, it is prudent for employers to prohibit moonlighting, unless of course the employee is not employed, and only working part time (for example mornings only) or on certain days of the week. If the employer elects to forbid moonlighting, it should be clearly incorporated in the employee’s contract of employment and, better still, reinforced in a company policy.
According to the Labour Court judgment in the Martin East judgment, the dismissal of the employee was fair. An employment contract could include such a clause, declaring that: “The employee undertakes during the period of his, or her, employment not to be directly or indirectly engaged in, or employed by, or otherwise associated with, either or on a full-time or part-time basis, any business or organisation or company or corporation or person, whether such activity is of the same or similar business interest as that of (employing company name) (Pty) Ltd, or not.” Such a clause in an employment contract would be valid, and enforceable, in the event that the employee is fully employed. The Labour Court case of Martin East v Bullbring & others (Case number C1051.14) dealt with the question of moonlighting, among other things.
The employer had a clear rule prohibiting moonlighting, yet the employee had facilitated a training workshop for five days for his own account without having sought or obtained authorisation from the employer to do so. To make matters worse, he had been on duty for his employer for at least part of the time he had facilitated the workshop. So, there you have it. Moonlighting cases in our courts are relatively few. However, it is undoubtedly clearly understood that employees have a duty of good faith to their employers, and as such, must ensure that they do not act in a manner that undermines the interest of their employer. If employers object to their staff moonlighting, it is of prime importance that this be recorded in a contract of employment, together with a policy on this prohibition.
In addition, there must be proof that the employee has prior knowledge of the rule prohibiting moonlighting. Moonlighting will not always necessarily justify dismissal, so each case would need to be judged on its own merits.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 or visit www.tonyhealy.co.za
by angelique | Nov 1, 2018 | Accounting & Finance, Jobs
SPRING is in the air, and while we get ready to embrace the warm days of summer, we should also brace ourselves for the financial challenges that lie ahead. Giving your budget a good spring clean is a great place to start.
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