Prevention and Combating of Corrupt Activities Act, 12 of 2004 (“PCCA”)

Framework for employers

Theft is serious misconduct

Bad behaviour disguised as a joke

Typical examples of this behaviour include:

• Discriminatory references to race, gender, religion, disability, age, sexist comments, sexual harassment, and so on.
• Pranks and games. When it comes to tools, vehicles and machinery, no games or pranks can be afforded. Injuries can easily occur during pranks while working in close proximity to a tractor or hammer mill, for example.
• Teasing.
• Horseplay. This entails rough or rowdy games or pranks at the workplace and can include activities such as pranks involving physical contact, playing around, racing, grabbing, social pressure to engage in unsafe acts, harassment and unauthorised competitions.
• Information shared on social media platforms such as WhatsApp.
• Threats. When one employee threatens to harm another, including verbally and non-verbally (for example an intimidating look or hand gestures that make you feel unsafe).

A so-called ‘joke’ that goes awry will expose the employer to various risks, including injuries on duty, damage to property, damage to team dynamics when workplace relationships break down, damage to the employer’s public image, grievances, referrals to the Commission for Conciliation, Mediation and Arbitration (CCMA), and court cases.

Disciplinary action

Be proactive

Article supplied by Stephan Pietersen, Work Accident Support.

Compensation for Occupational Injuries and Diseases Act (COID Act), 1993:

In terms of the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 (COID Act), previously known as the Workmen’s Compensation Act, all businesses who employ one or more employees must register with the Department of Employment and Labour’s Compensation Fund within seven days after the first employee is appointed. This is to cover employees against work accidents and occupational diseases. It applies to temporary, part-time, full-time, seasonal, and casual employees. Exempted employers will not need to pay assessment fees to the Compensation Fund, but will have to compensate their own employees who sustained work accidents or suffered an occupational disease.

Exempted employers are:

• national and provincial government departments
• certain local authorities
• employers insured by a company other than the Compensation Fund

13 different classes and sub-classes:

• Mining industry
• Iron
• Steel
• Artificial limbs
• Galvanizing
• Garages
• Metals

Declare annual earnings:

Compensation for Occupational Injuries and Diseases Amendment Act, 2022:

On 17 April 2023 the Compensation for Occupational Injuries and Diseases Amendment Act, 2022 was signed into law. Although signed into law, the implementation date has not yet been provided. Businesses will suffer great financial losses if they miss the due date for the declaration of the return of earnings or the late payment of the assessment. While businesses are being penalised 10% of the assessment currently, the amendment act stipulates that businesses will be penalised 10% of the annual earnings declared, which will have far greater financial consequences.

Letter of good standing:

A business will be in good standing when it:

• Is registered with the Compensation Fund – section 80
• Declared the annual earnings – section 82
• Paid the assessment fee in full / pay instalments – section 86
• Report accidents timeously

Work accidents:

The following documents must be submitted to report an injury:

• An employer’s report of an accident (WCI.2)
• The treating doctor’s first medical report (WCI.4)
• The injured employee’s payslip as at the time of the accident
• A valid certified copy of the employee’s ID or other proof of identification

Benefits payable in terms of the COID Act:

• Temporary total disablement – loss of salary income while the employee is booked off duty and is receiving medical treatment
• Permanent disability – the employee suffered impairment and is not able to function as before the accident
• Death – in the unfortunate case where an employee passed away, the spouse and minor children qualify for a monthly pension. The funeral expenses are also payable.
• Medical expenses – The Compensation Fund is also a medical aid and medical expenses and the conveyance of the injured employee will be paid according to the medical aid tariffs
• Constant attendance allowance – An additional payment of compensation can be approved when the injured person who is receiving a monthly pension, needs constant help to perform the essential actions of life.

Work Accident Support together with the LWO have gathered a way for our members to banish all insecurity regarding the COID Act. Let Work Accident Support ensure you comply while you focus on your business.

Understanding notice periods:

• Less than 6 months – 1 week’s notice is required;
• More than 6 months, but less than 1 year – 2 weeks’ notice is required;
• More than 1 year – 4 weeks’ notice is required.

Payment in lieu of notice:

Immediate termination for serious misconduct:

Conclusion:

The following issues can go wrong and cause a breakdown of trust in the employment relationship:

• Conflict
  The workplace is a very diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethic, opinions, etc. Everyone won’t always get along with each other and when conflict arises, the employer should step in and assist to resolve the conflict before it escalates, or starts to affect more employees and negatively impact on business operations.

• Misconduct
  Misconduct can be described as an employee’s failure to act according to the employer’s rules and policies. In basic terms, misconduct is a behaviour issue of the employee. Such behaviour is normally deliberate or negligent, and employees can be held accountable for their actions. Misconduct can take various forms, including theft, fraud, dishonesty, insubordination, absence from work without permission, etc.

• Poor work performance
  Poor work performance refers to an employee’s incapacity when an employee fails to reach and maintain the employer’s work performance standards in terms of quality and quantity. All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. Should the employee fail in this duty, despite assistance to reach the required standard, the employee is said to be incapable and the employer has the right to dismiss him/her subject to following the correct procedure. Poor work performance involves a consultation process where the employee is informed of shortcomings and provided with training and guidance to achieve the desired outcome. The employee is then monitored for a reasonable period of time and offered further training and guidance as needed. If the employee does not improve sufficiently, a formal disciplinary process can follow which can lead to dismissal.

It is important to maintain good and healthy working relationships. Boundaries should be set from the beginning of the employment relationship to avoid any uncertainties going forward. Keep the communication lines open for all parties to address any issues which may arise. Employers should take care to follow the correct procedures when taking disciplinary action or holding consultations to avoid ending up at the CCMA (Commission for Conciliation, Mediation and Arbitration).

The Commission for Conciliation, Mediation and Arbitration (CCMA) was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA). When a case is referred to the CCMA, the employer has an option regarding the processes for objecting to Con/Arb. CCMA processes aim to promote fair labour practices and resolve labour disputes in the workplace. An employee can refer a dispute to the CCMA on the basis of dismissal, wages and working conditions, unfair labour practice, workplace changes and discrimination. Most cases referred to the CCMA relate to unfair dismissal.

CCMA processes: the three basics

• Conciliation: This is an informal process where a commissioner is appointed to meet with the parties to a dispute and explore ways to resolve the dispute by mutual agreement. If the case is settled, a settlement agreement is signed and the dispute is resolved.
• Arbitration: This is a hearing process where the parties have the opportunity to state their case. During the process, oral evidence is presented as well as any other forms of evidence in support of a party’s case. The commissioner will issue an arbitration award which is binding and the equivalent of a court ruling.
• Conciliation/Arbitration (Con/Arb): This is an ongoing process where conciliation and arbitration follow directly after each. If conciliation (settlement) is not reached, arbitration will take place on the same day.

Objecting to Con/Arb

• It may not allow for a fair hearing (arbitration).  During the Con/Arb process, the same commissioner who presides over the conciliation process also makes the final decision during the arbitration. This means that the commissioner may already have formed an opinion about the dispute, which can affect their impartiality during the arbitration stage. Should a commissioner feel that they have formed an opinion during the conciliation they could decide to request a different commissioner for the arbitration to ensure fairness and impartiality.




• It may not provide for a transparent process.  In a traditional arbitration hearing, the parties are allowed to call witnesses, cross-examine them, and present their cases in full.  When a conciliation precedes the arbitration, the proceedings are generally informal with the aim to achieve a settlement, and there may not be the same opportunities for witnesses to be called, or for cross-examination to take place. This can make it difficult for parties to challenge or refute evidence presented by the other side, which can impact the integrity of the arbitration decision.