by angelique | Apr 9, 2021 | Employers
Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee’s alleged misconduct “The employee should be allowed …… the assistance of a trade union representative or fellow employee.”
It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.
In the case of NUMSA obo Thomas vs Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union’s claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.
The CCMA Guidelines: Misconduct Arbitrations states that an employee is not automatically entitled to legal representation.
However, in the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani (Case number 478/03 SCA. Report by Dr Elize Strydom distributed 30 January 2005) the employee was refused the right to an external legal representative.
The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing.
The employer appealed against this judgement to the Supreme Court of appeal which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that clause 2.8 of the employer’s disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances. This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition on legal representation.
In the case of Molope vs Mbha (2005, 3 BLLR 267) an area manager was dismissed for unauthorised use of funds and was brought to a disciplinary hearing. The accused employee chose a colleague to represent her but, shortly before the disciplinary hearing this colleague decided not to represent Mbha. The employee therefore applied for a postponement in order to obtain another representative but the employer refused and the employee was dismissed. The Labour Court it found the dismissal to be procedurally unfair and said that “it is now established that one of the requirements of a procedurally fair hearing embraces the entitlement of an employee to be represented thereat by a co-employee or a trade union official or a lawyer.”
In Public Servants Association of South Africa obo Leiee and others / Department of Police, Roads & Transport (FS)[2015] 3 BALR 276 (PSCBC) the arbitrator found that neither employers nor employees may appoint lawyers to represent them in disciplinary hearings. However, the courts have made it plain that, while there is no such general right, applications for legal representation must be considered on their merits even if collective agreements or disciplinary codes appear to exclude legal representation absolutely.
In view of the contradictions in the case law as evidenced in the above reports employers are advised, when receiving applications for external representation to consider whether:
- Their policies allow external representation
- The complexity level of the case is high
- The consequences of an adverse finding could be serious
- There would be no significant prejudice to the employer if legal representation would be allowed
- The employee’s ability to deal with the case is low in comparison to that of the employer.
The above case findings have major consequences for employers engaging in disciplinary hearings. In particular:
- An employee’s request for legal representation can no longer be dismissed out of hand. While such requests must not always be granted, they must be given very careful consideration.
- This in turn means that employers will need to ensure that their presiding officers are highly skilled in chairing disciplinary hearings. This is so as to be able to make the right judgement as to whether to allow legal representation or not and also to be able to deal with the legal challenges posed by attorneys and advocates at disciplinary hearings.
- Managers must be thoroughly trained in disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings.
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 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: [email protected]. Go to: www.labourlawadvice.co.za
by angelique | Mar 8, 2021 | Employers
Even where it has been proved beyond any doubt at arbitration that an employee has committed an extremely serious offence, the employer will not have discharged its legal duty to prove that the employee deserved to be dismissed.
Schedule 8 indicates that an employee may be dismissed for gross offences such as assault, wilfully endangering safety, gross dishonesty or gross insubordination.
The employer’s own disciplinary code may have other offences that merit dismissal such as, for example, gross sexual harassment, racist behaviour, gross dereliction of duty or bringing the name of the company into disrepute.
However, Schedule 8 also says that, despite the fact that such misconduct might merit dismissal, the employer’s right to dismiss the employee is subject to the condition that each case should be judged on its own merit. This means that while it might be acceptable to label an offence as gross misconduct, dismissal will only be merited if the specific circumstances of each individual case, looked at as a whole, make dismissal apt.
The person deciding whether a guilty employee deserves to be dismissed must take into account all circumstances of the case as well as circumstances such as the employee’s personal circumstances, the employee’s disciplinary record and length of service. It is important to note that Schedule 8 does not say that the employee’s personal circumstances, disciplinary history or length of service must be taken into account in the employee’s favour to mitigate the penalty. The code merely says that these factors must be taken into account; period. The wording of the Code does not stop the employer from taking such circumstances into account as aggravating circumstances. Indeed, it is accepted practice, that, should the employee’s record show previous, unexpired warnings for a similar offence, the employer can use these as circumstances to strengthen the penalty.
However, it appears that, although the Code does not specify it, arbitrators and Labour Court judges expect an employer to view an employee’s long service as a mitigating circumstance potentially strong enough to reduce an expected dismissal penalty to a lesser corrective measure. For example, in the case of Sedumo and another vs Rustenburg Platinum Mines Ltd (2008 2 BLLR 24) a key issue raised in the Constitutional Court was that of how a Chairperson should deal with mitigating circumstances. Chairpersons often have difficulty deciding how much weight to give mitigating circumstances and thus how to satisfy the CCMA and the courts. There are a number of factors contributing to this problem:
- Chairpersons who are not trained or not trained enough
- Chairpersons who lack experience
- Chairpersons who lack knowledge concerning the content and spirit of the law
- the fact that the CCMA does not have one standard policy towards the weight to be given to mitigating circumstances. As different Commissioners have different views, it is difficult for Chairpersons to know what the standards are.
In the above mentioned case what Sidumo did was, at worst, dishonesty and, at best, gross dereliction of duty. He claimed not to have been trained in the specific task he was required to do. However, he had 15 years of experience as a security guard and the question arises as to what training such an experienced guard needs in order to know that he must search every person exiting the Precious Metals gate. The question also arises as to why his 15 years of service should significantly mitigate his penalty. That is, was he at the company for 15 years out of loyalty for the employer or he was unable to get another job? Why should his 15 years of service only be used in his favour? Why could it not be used against him due to the fact that his years of long service should have taught him that he is required to search employees who he has been instructed to search and should have taught him the importance of this job and the seriousness of his failure to do so.
The employer has a dilemma in such circumstances. I.e. on the one hand, the employer knows that an employee behaving in such a grossly derelict manner deserves to be dismissed and that the employer cannot possibly continue to trust the employee. On the other hand, the employer knows that the CCMA, backed up by the Constitutional Court expects the employer to give significant mitigating weight to 15 years service.
The employer thus needs to be able to give sufficient weight to length of service but, at the same time, to be able to identify reasons why the mitigating circumstances are outweighed. The danger lies in the lack of understanding of how to balance these two responsibilities.
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.labourlawadvise.co.za
by angelique | Feb 22, 2021 | Employers
In one of my recent articles I touched on the issue of productivity at the workplace. I mentioned that, now more than ever, businesses and their employees need to team up so as to ensure that the business and its people survive and prosper during and post Covid.
The meagre assistance that government is able to provide to businesses and employees might help to a small extent in the short term, but it is by no means the long term solution. There is also no magical solution that is going to fall out of the sky.
Even if, in the unlikely event that our economy gets back to the pre-Covid annual growth figures (sub 1%), this will not help individual businesses and their employees. And it will not help the 12 million unemployed people in South Africa.
ESKOM has become less and less able to provide power and, at the same time, has become more and more insistent on increasing its tariffs. Added to this, there is very little confidence that the government is able to manage our economy back to health. This is because it is seen to be financially and morally bankrupt, and unwilling to make the changes necessary for economic recovery.
If our government wanted to put the welfare of our economy before the unity of the ANC alliance it would, long a go have made the economic reforms required by the IMF. It would then have borrowed money from the IMF and invested that money in fixing ESKOM and in the so called “massive infrastructural projects” that it has been talking about for the last several years.
In the light of the above, businesses and their employees cannot expect their future financial security to come from above. Neither can they afford to wait until the ANC is replaced by a new government.
As a result it is urgent and necessary that businesses and their people take their salvation into their own hands. Happily, this is very possible to achieve. Once we accept that the money we need is not going to fall from the sky we have also to accept that, if we want money, we need to make it.
This is not a radical concept. Businesses are normally set up for just this purpose, and employees get jobs mainly for the purpose of making money. However, most businesses and their staff are not making nearly enough money to satisfy their needs and the needs of our economy. And they never will, unless they first make drastic changes to the counterproductive work-pay system plaguing most businesses. That is, at most workplaces, there is, at best, a very reluctant and strained level of cooperation between employees and management. This arrangement is tenuously held together by management’s threat of punishment, and the threat made by employees of strikes and CCMA litigation. This system is as far away from a scenario of making good money as the earth is from the other end of the universe.
As a result, we, as business owners and as workers need to develop an entirely new basis for our cooperation in our quest for making money. We need to replace our current counter productive ethos with one that will make much more money for everyone. This is necessary for counteracting the financial devastation caused by State Capture, a grossly ineffective government and Covid19.
If we as business owners and workers are going to make the money we need, we will have to team up with each other in a true partnership for creating super-productivity. And then we need to share the fruits thereof fairly with each other.
Then, staff will be motivated by the opportunity to make real money instead of being cajoled into reluctant cooperation and getting a small wage at the end of the month. And business owners will also be motivated by the opportunity to make real money instead of accepting the business losses or meagre profits delivered by our current self defeating pay-reward system.
This new co-productivity system will remove the conception that so many workers have that the word ‘productivity’ means exploitation, neo-apartheid abuse and capitalist greed. And businesses will be able to make big profits because of the fair and constructive relationships they have with their staff, and because of the business’s willingness to share those profits with their employee partners.
One of the greatest thinkers of all time, Albert Einstein said that we cannot solve any problem with the same mindset that caused it. Businesses and their people have the same problem, namely that they are not making enough money. But application of Einstein’s principle means that both business owners and workers can only solve this money problem if they change the mindset that caused it. That is, the money shortage problem has been caused by our uncooperative workplace mindset. We can solve the money shortage problem by developing a new, cooperative mindset.
If we cling to our old and failed ‘we-they’ mindset we will doom ourselves to a future of low pay, job insecurity and business failure. But, if we are willing to free ourselves from our uncooperative mindsets we will make ourselves economically free.
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 angelique | Feb 15, 2021 | Employers
The most frequent question I am asked is, “How do we productively manage employees working from home?”
This question is not only important during the lockdown. It will also be crucial post lockdown because the working from home trend will, in many cases, continue forever.
It is a serious challenge for every executive and supervisor to manage people who are not physically where you are. In this situation managers are not routinely able physically to visit the employees’ workstations to see that they are there, to check their work quality and to provide guidance. And the manager’s presence can no longer act as a deterrent against slacking off.
Due to the above headache HR professionals need to support management in installing mechanisms to replace the old methods of managing employees.
This firstly involves the development and implementation of amended policies to regulate the new working arrangements. The new Working From Home policy should, amongst others, include:
- The requirement to work from home based on the lockdown regulations
- Changes to work systems, tasks and responsibility
- A results focussed work performance monitoring system.
Secondly, HR should facilitate the setting up of reporting systems where the employee’s work output and results are closely monitored via carefully designed report formats. However, before work performance can be monitored and evaluated each employee’s responsibilities must be defined in detail in specific key result area agreements. And realistic standards for each employee’s performance must be very carefully arrived at and documented.
Thirdly, HR should work with the IT department to ensure that telephone, email, virtual-meeting and other communication facilities are working optimally.
Fourthly, Performance Improvement Programmes have become crucial implements for managing remote working. However, these must be extremely carefully designed and implemented. HR needs to obtain expert assistance in setting up PIP systems and must get loud support from the very highest authority in the company for preserving the integrity of the performance management system.
Where there is clear proof that an employee is being properly assisted and still refuses to put in the necessary effort, the reason for this should be thoroughly investigated. If this establishes that the performance shortfall is the employee’s fault a more disciplinary type of corrective process should be used.
Likewise, employers are entitled to discipline employees who break Covid rules. However, employers are still required to prove that their disciplinary steps are procedurally fair and substantively rational.
The Commissioner noted that the main motivation of the rule was to avoid workers risking Covid infection by using public transport. As the level 5 lockdown had ended when they went home and neither had used public transport they had not broken any rule. The applicants were reinstated with retrospective effect. It appears that this employer overreacted in trying to adapt to the lockdown.In the case of Van Wyk and another vs Africa Spice (Pty) Ltd
[2021] 1 BALR 102 (CCMA) The respondent, being an essential service, decided to continue operations under lockdown level 5, but required only 15 of its normal staff of 120. Those who volunteered to work were selected on condition that they remain in the workplace 24 hours a day for the duration of the lockdown so as to avoid the risk of contracting Covid. However, the two applicants broke this rule by leaving the premises after knockoff time. They were dismissed for breaking a workplace rule and for insubordination.
However, adaptation to lockdown conditions is only one priority for employers. Ensuring that the business survives and prospers during and post Covid is equally crucial. As financial prosperity can be achieved neither via luck nor magic, businesses need to implement new systems for promoting the super-productivity ethos essential for counteracting the financial devastation of Covid.
In SA a fairly unique and very powerful obstacle to productivity is the fact that, for hundreds of thousands of workers, the word ‘productivity’ means exploitation, neo-apartheid abuse and capitalist greed. Companies have reluctantly ‘lived with’ the workers’ aversion to productivity. However, now with the severe damage done to our businesses by Covid, this productivity aversion mindset urgently needs to be reversed.
The key to changing the negative mindset of workers lies in convincing them that their increased productivity works strongly for them and not merely to make the owners of the business richer through worker exploitation.
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
