A bargaining council is a body that is established by one or more employers’ organisations and one or more trade unions. It must be registered under the Labour Relations Act for a particular industry. This means that there are restrictions on what kind of dispute specific bargaining councils may hear.

Powers and functions of bargaining councils include:

• making and enforcing collective agreements
• preventing and resolving labour disputes establishing and managing a dispute resolution fund
• promoting and establishing training and education schemes
• establishing and managing schemes or funds to benefit its parties or members
• making and submitting proposals on policies and laws that affect a specific sector or area

Certain bargaining councils have the status to resolve labour disputes in the same way as the CCMA. Therefor, the CCMA does not have jurisdiction to preside over labour disputes in a spesific industry, if an accredited bargaining council exists.

Does an employer have to register with the bargaining council?

Hefty fines can be imposed if an employer fails to comply with the collective agreement of the bargaining council.

What are the benefits of being registered with the bargaining council?

What must employers know?

Contact the LWO at 086 110 1828 or info@lwo.co.za to ensure your business complies with applicable labour legislation.

Many factors can influence productivity in a workplace. This has a direct impact on a business’s profitability and sustainability. When an employee works in a positive environment he/she will be more productive.

Employers can consider the following:

Workplace culture

Every business is unique and it is important to appoint the correct employee not only to do the job, but also fit in with the workplace culture which should support the long term goals for the business. Employers should always include a probation period in the employment contract. This will allow the employer to assess if the employee’s performance meets the required standards, as well as fit in with the workplace culture. The length of the probation period will depend on the nature of the job. The more complex the nature of the job, the longer the period of probation will be. The employer can never just terminate an employee’s service, even if the employee is on a probation period and does not perform according to the required standards. This can lead to an unfair dismissal claim against the employer.

Personal management style

• Trust your employees and inspire them
•  Avoid micro management
• Recognise employees’ efforts and reward them
• Always be fair and reasonable

Compliance with relevant legislation

Communication

It is important to consult with your employees on a regular basis and also keep a record of all consultations. Topics to discuss can include:

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

The employer can hold regular meetings with employees, individually or in a group. This will create a platform for employees to voice their thought and ideas, as well as to discuss any specific needs.

Grievances procedures

The aim of the grievances procedure is firstly to create a harmonious working environment by identifying and resolving any dissatisfaction or feelings of injustice from an employee’s side. Secondly, the grievance procedure helps to protect the employer in a case of constructive dismissal. In such  a case the commissioner of the CCMA will always ask whether a grievance procedure was in place. This procedure contains information of how a grievance is dealt with, as well as the different stages in the procedure, should the matter not be resolved during stage one.

Labour risk is a huge business risk. To ensure the sustainability and profitability of your business, labour risk needs to be managed in a productive manner. A positive workplace leads to a happy and productive employee.

A vast amount of legislation regulates labour relation in South Africa with the added minimum wage as announced, to be implemented om 1 May 2018. The Department of Labour has made it know that they are planning to inspect as many businesses as possible for compliance with the national minimum wage. The inspector form the Department of Labour will also make sure that employers comply with all other relevant labour legislation, regulations and rules.

Make sure you comply with labour legislation and have the following 4 things in place:

Employment contracts

The employment contracts is the basis of the relationship between the employer and the employee. This states the terms and conditions as agreed upon by the employer and employee. Terms and conditions of verbal agreement cannot always be proven. Therefore, the written particulars of employment in form of a contract creates clarity and certainty between the employer and the employee. This also diminishes the risk of disputes arising about these terms and conditions. An employment contract is the most important document for the employer in managing labour relations.

Employers can also include additional clauses in the contract to proactively manage possible future disputes. This will save time and money. General proactive clauses can be placed in categories involving time periods (retirement age, short time, daily rest period and probation period), the employee’s content (additional deductions, subtraction of training cost when the employee resigns, alcohol testing, cameras in the workplace and searching of personal belongings) and other (confidential and restraint of trade).

Disciplinary code

Clear rules and guidelines in the workplace ensure that friction and misunderstandings are kept to a minimum. This, in turn promotes not only productivity but also a positive working environment. The disciplinary code serves as a guideline for employers of appropriate sanction for certain offences. These sanctions may be adjusted depending on the circumstances and merits of each case. This will also influence how progressive discipline should be applied. The disciplinary code should ensure that all employees are aware of the rules in the workplace, as well as the consequences should these rules be broken.

Policies and procedures

To have policies and procedures in place in the workplace is extremely important. A policy informs employees of the rule(s) in respect of a certain topic. The employer puts these rules in place to ensure the smooth and efficient running of business operations. Policies are not underwritten by labour legislation, but define the employer’s own rules. These rules must be reasonable. Typical policies include a code of conduct, smoking policy, sick leave, cell phone policy, sexual harassment policy, internet and e-mail policy, hygiene policy, etc. These policies are often used to proactively manage labour risk. The employer can amend policies when necessary. It is vital that employees are informed of these policies, as well as any changes made to the policies, preferably in writing.

A procedure is an established or official way of handling a situation. Procedures are put in place to inform the employees and employers alike, of necessary steps when a certain incident occurs. Typical procedures include a disciplinary code, appeal procedure and grievance procedure.

Registration for UIF and the Compensation Commissioner

All employers must be registered with the Compensation Commissioner for workmen’s compensation. This ensures that all injuries on duty are reported and employers and employees are compensated accordingly. Employers must also register at the Unemployment Insurance Fund (UIF). Employers must also ensure that all employees working more than 24 hours per month are registered. It is the employer’s responsibility to make sure that UIF contributions are deducted from employees remuneration. An inspector from the Department of Labour will always check this during an inspection.

An employment contract is crucial in managing labour relations. It forms 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 that the employer and employee must adhered to. The employer can implement proactive clauses in the employment contract, such as a period of probation, to eliminate possible future disputes.

The goal of a period of probation

The Labour Relations Act’s Code of Good Practice makes provision for a probation period. The purpose of a probation period is for the employer to assess if the employee’s performance meets the required standard. The length of the probation period will depend on the nature of the job. Therefore, the more complex the nature of the job is, the longer the period of probation will be. The employer can never just terminate an employee’s services. This applies even if the employee is on a probation period and does not perform according to the required standard. Such discrepancies can lead to an unfair dismissal claim against the employer.

What must I as the employer know?

Employers must take note that using a fixed term contract as a probation period constitutes unfair labour practice. Termination of the contract after completion of the fixed term, may be seen as unfair dismissal. Therefore, an employer must clearly understand that to disguise what is actually permanent employment in the form of a fixed contract is illegal.

The employer has certain legal obligations when placing an employee on probation. We recommend that the employer clearly state all of these obligations in writing in the employee’s employment contract. The employer must also explain this to the employee.

The employer has the obligation to:

• make it clear that the employee is on probation;
• clarify the length of the probation period;
• set reasonable performance standards;
• specify and explain to the employee the performance standards required;
• evaluate and monitor the employee’s performance regularly against the set performance standards;
• inform the employee of performance shortcomings;
• give the employee the opportunity to present more information and explain the situation from his/her point of view;
• assist, guide, counsel and train the employee where necessary;
• follow the correct disciplinary procedure or poor work performance procedure, depending on the circumstances.

Poor work performance

Poor work performance is an ever increasing challenge in the workplace. It refers to an employee failing to reach and maintain the employer’s work performance standards in term of quality and quantity. Labour legislation sets clear guidelines of how employers should deal with poor work performance. All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standard set by the employer. Should the employee fail in this duty, despite assistance to reach the required standards, he/she is said to be “incapable” and the employer has the right to dismiss the employee. It is vital to note that the employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair.

Incapacity, where employees who are unable to perform at the required standard have a huge impact on a business’s normal operations. Most employers don’t have the luxury of spare capacity concerning their workforce to compensate for this deficit. Employers have the right to establish a fixed standard in the workplace in terms of quality and quantity and to give reasonable and lawful instructions.

What is incapacity?

Follow the incapacity procedure

The following steps are typical of an incapacity procedure:

Step 1: Notify the employee

The employer should issue the employee with a written notice to attend a consultation to discuss his/her unsatisfactory work performance. Take note to give the employee at least 48 hours’ notice of the consultation to prepare. This period must exclude weekends and public holidays.

Step 2: First consultation

During the consultation the employee must be afforded and opportunity to state his/her case and explain why he/she is not meeting the required standards. During all consultations regarding incapacity the employee has the right to be assisted by a trade union representative, a fellow employee or any other person that has the mandate to act on behalf of the employee. If the employee is incapable of attending any consultations, the employer should present a practical solution. For example, visiting the employee at home or in hospital, or dealing with the employee’s representative.

Take note to talk about the following:

• the required standards of work performance in the workplace
• all duties required of the employee
• the reasons why the employer is of opinion that the employee is failing to meet these standards
• possible outcomes of incapacity where the required standards of work performance is not met due to ill health or injury.

Step 3: Investigation

The employer must investigate and establish whether the employee is capable of performing his/her duties at the required standards. If the employee is not capable, the employer must evaluate the seriousness of the incapacity by considering the following:

• nature of the employee’s job – does it entail a specialised skill?
• possible outcomes of incapacity where the required standards of work performance is not met due to ill health or injury
• seriousness of the employee’s illness or injury – the employee must provide the employer with a medical report that sates the degree and permanency of the employee’s incapacity. The record must also contain the type of work, if any, the employee is capable of performing. The employer cannot force an employee to undergo medical testing without the employee’s permission.
• possibility of accommodating the employee’s disability – options include temporarily adjusting the employee’s duties as well as terms and conditions of employment. For example, working hours, place of work, ect.
• possibility of securing alternative employment, such as a position in a different department or section of the business.

Step 4: Further consultation and implementation of the agreed upon solution

After obtaining all the relevant information the employer must have another consultation with the employee. The outcome of the investigation will then be discussed. The employer should take all possible steps to assist the employee and implement the best remedy to the employee’s incapacity. If there is no alternative to dismissal, the employer can go ahead and dismiss the employee.

The employment relationship is essentially built on trust and confidence with the employment contract as key in managing labour relations. The employment contract is the basis of the relationship between the employer and the employee. Therefore 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.

What does the law say?

The employer’s legal duties:

• Receive the employee into service by providing the employee with a written employment contract, as well as according employees their rights in terms of applicable labour legislation.
• Provide the employee with work.
• Pay the employee’s remuneration.
• Ensure that working conditions are safe and healthy.

The employee’s legal duties:

• Render services.
• Perform according to the reasonable, lawful and attainable work performance standards set by the employer in terms of quality and quantity.
• Always act in good faith, be loyal and have the employer’s best interest at hart. This is known as the employee’s fiduciary duty.

The employee’s fiduciary duty in terms of trust and confidentiality

This fiduciary duty includes the following:

• The employee’s interests may not conflict with those of the employer.
• The employee may not use the employers’ property for personal gain
• The employee may not divulge confidential information of the employer to a third party.

It is important that employers inform employees of their fiduciary duty and the position of trust they are employed in. In addition, we advise employers to include offences relating to the breach of confidentiality and trust in the workplace’s disciplinary code. A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow. When these rules are broken the employer can apply progressive discipline (warnings).

In cases of severs misconduct the employer can proceed directly to a disciplinary hearing. In most cases regarding the breach of confidentiality and trust, dismissal as a sanction is appropriate. This is due to the fact that the offence has a direct impact on the root of the employment relationship which binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable as a result. Typical misconduct that impacts the trust relationship include:

• Extortion or corruption,
• Giving false evidence or false declarations,
• Fraud,
• Theft or unlawful possession of property,
• Misappropriation and divulging or supplying confidential information.

Steps to follow

We advise employers to follow these steps to identify misconduct impacting on the employment trust relationship:

Investigate

During the investigation the employer must establish whether the employee breached the trust relationship. The employer should also gather evidence in this regard and determine the seriousness of the offence, including (possible) consequences.

Consult with the employee

When consulting with the employee, the employer should determine if the offence was due to the employee’s negligence or with intent. It is important to give the employee the opportunity to present more information and explain the situation from his/her point of view.

Determine the sanction

The sanction is determined by the seriousness of the offence. Furthermore the employer must consider the facts of the case as every case has its own merits, to ultimately establish if the sanction is fair. It is important to note that the employer must prove on a balance of probability that the employee is guilty before imposing any sanction.

Take disciplinary action

An employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing. As a result to ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed. The employer must take note to keep detailed records of employees’ misconduct and sanctions applied.

Be proactive

We strongly advise employers to implement proactive measures to combat misconduct referring to the breach of confidentiality and trust by following these guidelines:

1. Ensure that all employees have written employment contracts that comply with applicable labour legislation. Also ensure that employees understand the content thereof.
2. Use labour legislation to your benefit in drafting your employment contracts. By including clauses referring to confidentiality and a restraint of trade, the employer can proactively manage any possible future disputes. This will consequently save time and money. This clause can protect the employer in the future as his/her business develops.
3. Ensure that your disciplinary code is relevant and up to date regarding offences and appropriate sanctions. Also ensure that all employees are aware of what the disciplinary code entails.
4. Encourage employees to report dishonest conduct and co-workers. Every employee has the duty to act in good faith in the interest of the employer and report any misconduct by co-workers. When an employee is not guilty of an offence, but was aware of the misconduct and did not report it to the employer, the employee violated the trust relationship and can the employer take disciplinary action against such an employee.
5. Ensure that every employee has a detailed job description to clarify his/her duties and the employer’s expectations.

Labour law is a huge business risk. Any business must manage labour risk in a proactive manner to ensure the sustainability and profitability. By implementing clear rules and guidelines friction and misunderstandings can kept to a minimum. This in turn promotes not only productivity but also an positive working environment.