“As a leader, you must consistently drive effective communication. Meetings must be deliberate and intentional – your organisational rhythm should purpose over habit and effectiveness over efficiency”

Chris Fussel

Consultation necessitate open and honest two-way discussions between employers and employees. Consultations is a powerful tool that employers can use to establish a productive and positive working environment as employees will realise that the employer is prepared to listen to constructive suggestions. Involving employees in decision making also ensures that employees have a better understanding for the employer’s operational requirements and how sustainability can affect job security for the employees.

Types of consultations in the workplace

Regular consultations

• employer’s expectations and fixed standard in the workplace,
• the employee’s performance,
• the employee’s role in the business and
• the impact the employee has on the business as a whole.

Progressive discipline

Progressive discipline and changes in behavior. The aim of discipline in the workplace is to correct and improve behaviour through redress, consultations and warnings, rather than to punish or dismiss an employee. When the employer notices a change in behaviour of an employee, the first step is to consult with the employee and confirm the desired behaviour. It is important to give the employee the opportunity to present more information and explain the situation form his/her point of view.

The employer must have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules. It is vital that employers have a disciplinary code that lists offences with the appropriate sanctions to use when rules and procedures are not followed. Dismissal should always be the last option. In cases of severe misconduct, the employer can proceed directly to a disciplinary hearing (take note to follow the correct procedure).

Formal consultations

• any changes made to an employee’s terms and conditions of employment. Take note that no unilateral changes can be made under any circumstances. This includes:
  • restructuring of responsibilities
  • working hourshttps://lwo.co.za/retrenchment-what-when-how/
  • remuneration
  • etc.
• retrenchment – dismissal of employees for reasons based on operational requirements.
• poor work performance
• incapacity – the inherent inability of an employee to perform work to the employer’s established standard in terms of quality and quantity due to ill health or injury, which can be temporary or permanent
• implementing short time
• exemptions form any collective agreement or any law
• compliance with the Occupational Health and Safety Act (“OHSA”). The OHSA applies to all employers, but employers with more that 20 employees must appoint health and safety representatives and hold regular consultations with regards to compliance
• compliance with the Employment Equity Act (“EEA”). The EEA applies to all employers, but “designated employers” have additional obligations. This includes to establish an Employment Equity Committee and to hold regular consultations with regards to compliance.

In conclusion

Inadequate communication in the workplace can lead to unhappiness, lack of loyalty and unproductivity. Apart form workplace forums, employees have no other means than through line managers and supervisors, to bring their concerns, ideas and suggestions to the attention of the employer. If properly constituted, the workplace forums can play a vital role in the workplace. The relationship between the employer and employee is based on respect. Clear communication ensures that friction and misunderstandings are kept to a minimum. This will in turn promote not only productivity but also a positive working environment.

Is is possible to make mistakes when calculating salaries and wages. It can also happen that the employer only realises the overpayment after several months. Does this mean the employer has to carry the loss or may the employer request the employee to pay back the overpaid amount?

• A deduction that may be made if the employee agrees in writing to the deduction
• A deduction permitted in terms of legislation, a collective agreement, court order or arbitration award, in which case no consent is required by the employee.

When do I need the employee’s consent to make a deduction?

• The loss or damage occurred in the course of employment and was due to the fault of the employee
• The employee is given a fair opportunity to explain why the deduction should not be made
• The amount deducted should not be more than the actual loss or damage suffered
• No more than 25% of the remuneration is deducted per month until the final amount is paid

When can I make a deduction without the employee’s consent?

When the employer made an overpayment as a result of an error in calculating the employee’s salary or wage, the deduction to recover the overpaid amount is permitted by law and may be made without the employee’s consent. We advise employers to consult with the employee with regards to the error in payment and reach and agreement on the recovery of the overpayment.

What if the employee refuses to repay the money?

If the employee refuses to repay the overpaid salary or wage or does not agree to the repayment terms, the employer may proceed with making the deductions form the employee’s salary or wage, provided that the amount deducted is reasonable.

Contact the LWO to ensure that you limit your risk and always follow the correct procedures.

Often an employee is still mentally and physically capable of conducting the duties required by the position after reaching the agreed upon retirement age. The employee’s permanent employment contract must however still be terminated regardless the fact. Should both parties decide to continue the employment relationship, they can enter into a fixed term employment contract. Employers must take note that if the permanent employment contract is not terminated upon reaching the agreed upon retirement age and the employee continues to render services for a period thereafter, the employee will be deemed to be a permanent employee without a fixed termination date. The employer will then have to follow an incapacity process when the employee is no longer mentally and/or physically capable of conducting the duties required by the position.

What should the employer know?

The terms and conditions of employment may never be changed unilaterally. So if there is no fixed retirement age in the workplace, the employer must consult with the employees in order to establish a fixed retirement age. Such an agreement must be in writing and signed by all relevant parties. As with all rules and policies in the workplace, the retirement age must be applied consistently to avoid unfair discrimination in the workplace. In such cases the employer can face an award of up to 24 months of the employee’s remuneration as compensation.

How can the employment contract come to an end?

The employment can come to an end when the employee resigns, reaches retirement age, is dismissed or is retrenched. One of the biggest misconceptions in labour law is the payment of a severance package. Severance pay is only payable when an employee is retrenched. When the employment contract is terminated upon reaching the retirement age, the employer has the obligation to pay the employee remuneration up to and including the last working day and accumulated leave. No further payments are required by law. If the employer wants to make an ex gratia payment, it will be at the employer’s sole discretion.

In conclusion

An employment contract is crucial in managing labour relations. It is the basis of the relationship between the employer and the employee. It defines the terms and conditions as agreed upon between the parties and regulates their relationship. Furthermore the employment contract describes rules and responsibilities to be adhered to by both the employer and the employee. The employment contract is vital to keep confusion and discontent in the working relationship to a minimum. By including additional information in the employment contract employers empower themselves and can proactively manage possible future disputes, saving time and money.

Contact us for any advice or assistance in regards with this matter. We are available 24/7.

We advise employers to include a repudiation clause in the employment contract so that when the above happens, the employee will be deemed to have repudiated the contract. The employer’s disciplinary code and procedures should also make provision for desertion or abscondment. It should clearly stipulate that it may lead to their dismissal.  

Does this mean that the employer can dismiss immediately?

The misconception of desertion or abscondment is that the employee dismissed him-/herself. This can never be the case. An employer always has to proceed with a disciplinary hearing prior to dismissing an employee. Under no circumstances can an employer merely dismiss an employee without following the correct procedures. 

What procedures must the employer follow?

How should the employer send the notice if the whereabouts are unknown?

What if the employee does not attend the disciplinary hearing?

If there is sufficient proof that the employee received the notice of disciplinary hearing, the hearing should proceed in the employee’s absence. The independent chairperson will make a ruling based on the evidence presented by the employer. An employee may be dismissed in his/her absence. Failing to comply with the above procedures, may lead to procedural unfairness if an employee refers a matter to the CCMA.

Employers must take care to always follow the correct procedures in terms of labour law.

Contact us for any assistance or advice – we are available 24/7!

Do employees have the right to have an additional job?

South Africa’s Constitution states that everyone has the right to work. In essence, employers can therefore not prohibit an employee form working. This does not mean that the main employer should just accept a possible negative impact on an employee’s work performance as a result of a second job. Employers can take proactive measures to manage the situation.

To manage their risk such as “moonlighting”, proactively, employers can do the following:

• Include a clause in their employment contracts to the effect that employees are required to request permission to take up additional employment and to disclose any conflict of interest that may arise form such additional employment.
• Implement clear rules relating to additional work that address the following:
  • The additional employment should not:
    • be in contradiction with the employment contract;
    •  harm or potentially harm the employer’s business;
    • affect the employee’s capacity to work for the main employer.

Additional work during sick leave or temporary incapacity

Moonlighting scenarios may also arise where the employee’s honesty is taken into question. It is surprisingly common for employees on long-term sick leave to supplement their income during the period of incapacity. In this instance, disciplinary measures may be taken. Employers should however note that the nature of the illness may have a genuine effect on the work they do for you, but may not prevent the employee form performing other work of a less strenuous nature. An investigation should therefore be conducted prior to disciplinary steps being taken.

Employees have a fiduciary duty to act in good faith

Employees have the duty to act in good faith towards their employer. Should it appear that an employee is for instance diverting customers or work away form the main employer to the additional employer or to do the work on his/her own account in his/her spare time, this conduct may be construed as a breach of such duty. Instances such as these should be listed as serious misconduct in terms of the employer’s disciplinary code and dealt with accordingly.

Contact the LWO for advice and assistance when confronted with an employee that is moonlighting or has additional work that effects your business to ensure that the matter is dealt with lawfully.