The resignation of an employee needs to be handled with great care correct. When an employer and employee enters into a contract of employment, one of the terms and conditions deals with the required termination period of the relationship. The Basic Conditions of Employment Act (BCEA) regulates and prescribes statuary notice periods depending on the length of service. The BCEA further dictates that notice of termination of an employment contract must be in writing, unless given by an illiterate employee.

But what if your employee resigns without doing it in writing and later submits a dispute to the CCMA for an “unfair reason for dismissal”?

The resignation isn’t valid if the employee doesn’t give proper notice. The employer can decide whether or not to waive compliance with the notice period or hold the employee to the notice period. It is important that the employer records the resignation and the notice period.

Useful tips when dealing with a resignation

• Always have the resignation in writing.
• Confirm the resignation and the acceptance of the resignation in writing to the employee. This will safeguard yourself against a possible CCMA award.
• Clearly record and advise the employee of the last working day, even in the event of the employment contract coming to an end immediately.
• The employee is entitled to receive a certificate of service, irrespective of the reason for termination of employment.
• If the employee resigns without giving the employer notice as required by law or in terms of the employment contract, the employee is in breach of the contract. In this situation the employer does not have to pay. An employer can either hold the employee to what is left of the contract or cancel and sue for damages.
• An employee cannot take leave during the notice period.
• An employer waiving the employee’s notice period must pay the employee notice pay unless the employer and the employee agree otherwise. This can be successfully implemented to protect business information, client contracts and potential risk of the disclosure of this confidential information.

Contact us for more information and assistance in this matter.

Strikes have a major impact on businesses’ profitability and survival, as well as the larger economy. According to the Department of Labour, there is a strong increase in strikes. The main reasons for strikes are mostly salary and bonus-related.

The Labour Relations Act (“LRA”) defines a strike as:

The partial or complete refusal to work, or the retardation or obstruction of work by employees for the purpose of remedying a grievance or resolving a dispute in respect of a matter of mutual interest.

Employers generally have the following questions:

Are employees allowed to strike?
Every employee has the right, in terms of the Constitution of South Africa, to strike. The LRA does stipulate certain provisions in order for a strike to be seen as a protected strike. If these procedures are not complied with, the strike will be seen as an unprotected strike.

What are the procedures that employees must follow for the strike to be a protected strike?

Can employers dismiss employees who participate in a strike?

What happens when employees participate in unprotected strikes?

Although employees who participate in an unprotected strike can be dismissed, it is crucial for employers to follow the correct procedure when dismissing these employees. Employers should issue employees with an ultimatum that states that they are taking part in an unprotected strike and that the employer has the right to take further disciplinary action if they do not resume duties. Through the ultimatum the employer must urge employees to resume duties and prevent further disciplinary action. The employer must also inform the employees of the possible consequences should the employees not resume their duties. If the employees have not resumed their duties in the time period allowed, the employer must issue a final ultimatum. It is very important that employees are provided with enough time to remedy the situation when ultimatums are issued. The ultimatums must be clear and understandable to circumvent any confusion.

Employers and employees are urged to ensure that they follow the necessary procedures when dealing with disputes in the workplace.  As specialists and market leaders in the field of labour law, the LWO assist employers to address business risks by managing it proactively.

Become a member today and take the headache out of labour law compliance!

Global Competitiveness Report of 2017/2018

• Hiring and firing practices: 125/137
• Pay and productivity: 99/137
• Cooperation in labour-employer relations: 137/137
• Flexibility of wage determination: 132/137
• Business cost of crime and violence: 133/137
• Business impact of tuberculosis: 132/137
• Business impact of HIV/AIDS: 128/137
• Quality of higher education: 114/137
• Quality of math and science education: 128/137

In general the report indicates restrictive labour regulations as one of the most problematic factors for doing business in South Africa.

The following legislation regulates labour relations in South Africa:

Labour Relations Act (LRA)

The Basic Conditions of Employment Act (BCEA)

Sectoral Determination

So how do employers deal with an employee who expressed his/her view on social media and in return damaged your business?

In the South African common law is there are rules of defamation. These rules are applied equally to all network sites and electronic communication media. Thus, are there no special rules for social media or e-mail usage.

So let’s look at an example. If an employee publishes something that could damage the reputation of another person or a business, it can be construed as defamation. Note that all persons have the right to dignity and not to have their reputation in infringed.

Because of the public nature of social media sites, an employee’s posts can be viewed by all his/her friends. These friends can forward this message to their friends. Unfortunately, some of these friends may by your clients, which in itself is problematic and can damage the reputation of your business.

Case study:

In a recent High Court judgement, the judge confirmed the existing legal position regarding the infringement of privacy, defamation and damages. In this case, the complainant sued the defendant on the basis of the following Facebook post during February 2012:

“I wonder too what happened to the person who I counted as best friend for 15 years, and how this behaviour is justified. Remember, I see the broken-hearted faces of your girls everyday. Should we blame the alcohol, the drugs, the church, or are they more reasons not to have responsibility for the consequences of your own behaviour? But mostly, I wonder whether, when you look in the mirror in your drunken testosterone haze, if you still see a man?”

The court agreed with the complainant that his right to privacy was infringed upon and that the posting constituted a defamatory statement. The test for defamation was whether “a reasonable person of ordinary intelligence might reasonably understand the words concerned as defamatory”. The court ruled in favour of the complainant irrespective of the truthfulness of the posting.

Therefore, employers and employees should beware that irresponsibly using and posting damaging statements and information on social media can have far-reaching and unacceptable consequences.

What should employers do?

• What is considered as responsible behaviour.
• What they may and may not post.
• What the consequences will be for employees who contravene the policy.

Some of the following acts can be included in the policy as an example:

“Cyber loafing” and the abuse of the employers resources
Employees are prohibited from using the employers’ resources including computers, tables and telephones, for their own purposes during or outside of working hours. Contravention of this rule can lead to disciplinary action taken against the employee.

Creating disharmony and disseminating offensive or abusive material
An employee that circulates information that is racist, defamatory, sexist or pornographic constitutes gross misconduct. Racist comments are not only offensive but also creates disharmony among employees and could lead to disciplinary action.

Derogatory statements
An employee who posts derogatory and offensive messages about the company may be found guilty of bringing the company name into disrepute. This could lead to disciplinary action or an action of defamation.

These are just some examples and every employer can tailor a policy to their business needs.

Traditional healers are consulted by approximately 60% of the South African population. Medical certificates are, more often then not, a requirement for employers when an employee has been ill. Can a note form a traditional healer be accepted as a valid medical certificate?

No medical certificate – no pay

In terms of the Basic Conditions of Employment Act (BCEA) an employer is not required to pay an employee if:

• the employee has been absent form work form more than two consecutive days OR
• on more than one occasion during an eight-week period
• and does not produce a medical certificate on request of the employer, stating that the employee was unable to work for the duration of the employee’s absence on account of his/her sickness or injury.

Any employee is entitled to the number of days’ paid sick leave equal to the number of days normally worked in a 6 week period during a sick leave cycle of 36 months. During the first 6 months of employment, an employee is entitled to 1 day’s paid paid sick leave for every 26 days worked.

Is it a valid medical certificate?

The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients. This person must also be registered with a professional council established by an Act of Parliament.

In the matter of Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others [LAC] JA78/10) an employee was dismissed for being absent from work. The employee had a medical certificate from a traditional healer, indicating that she had premonitions of ancestors. The employer dismissed the employee for being absent from work without having a valid medical certificate. The CCMA and the Labour Court found the dismissal was not justified as she had a justifiable reason for not being at work. The case went to appeal to the Labour Appeal Court. The Labour Appeal Court said that the Constitution recognises traditional beliefs and practices, so employers should also accept these beliefs.

What does this mean for me as an employer?

For traditional healers’ sick note to be acceptable as a valid medical certificate, the traditional healers must be:

• certified to diagnose and treat patients
• registered with a professional council

Abuse of sick leave can have a huge impact on a business’s productivity and profitability. To ensure that employees do not abuse sick leave, employers should implement clear rules and standards in the workplace regarding attendance, absenteeism and sick leave.

We advise employers to use the following guidelines and ensure that employees know:

• how and when to apply for any form of leave;
• who to contact if they are ill, injured or have a family emergency;
• how to contact that person (telephone, text message, e-mail, etc.);
• when they will be required to submit supporting documentation such as a medical certificate from a registered medical practitioner, or proof of a death in the family; and
• what the consequences of non-compliance will be (disciplinary action, unpaid leave, etc.)

It is also very important that the employer monitor work attendance and leave taken. Do monthly reports to identify any possible patterns in terms of absenteeism amongst employees. These patterns and trends are usually indicative of a more serious problem, for instance chronic medication condition.