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.

Employers may adhere to strict requirements as set out in legislation when providing employees with a designated smoking area. The number of smoke breaks that employees take during working hours is often a concern for employers. This could result in the employer remunerating an employee for a tremendous amount of time the employee did not work.

A designated smoking area inside the building

The area may not exceed 25% of the total floor space of the building;
The area may not be situated in an area were non-smokers will have to pass through;
The employer must ensure that there is sufficient ventilation in the smoking area.

A designated smoking area outside the building

Smoke breaks

What do I as the employer do?

• Employers can record the amount of time spent om smoke breaks if they have a clock system in the workplace;
• Ensure that the smoking area is close to the workplace to prevent wasting unnecessary time walking between the smoking area and the workplace;
• Limit the number of smoke breaks that employees may take during the day;
• Limit the duration of the smoke breaks that employees may take during the day.

The relationship between an employer and employee is based on mutual benefits and respect. Clear rules and guidelines ensures that friction and misunderstanding are limited. This will in turn promote a productive and positive work environment.

The vast majority of cases referred to the CCMA are due to “unfair dismissal”, with most of these relating to misconduct that led to dismissal. In general, arbitration orders granted in favour of the employee are directly linked to the employer not having followed the correct procedure. The CCMA may grant orders of up to twelve months of an employee’s salary against the employer.

What should employers do?

Progressive discipline is a widely known concept in the labour environment. It is one of the most important points considered by the CCMA, Bargaining Council and Labour Court when a dispute involving unfair dismissal arises. Employers need to ensure that progressive discipline is understood and correctly applied in the workplace.

What is progressive discipline?

The Labour Relations Act, 1995 (Act 66 of 1995) describes progressive discipline as follows: “The approach of progressive discipline in the workplace considers the purpose of discipline as a measure for employees to know and understand which standards are required of them. Reasonable steps must therefore be taken to improve or change employees’ behaviour through the systematic use of warnings and consultations.”

Discipline in the workplace is aimed at adjusting and improving behaviour through corrective action, consultations and warnings, rather than punishing or dismissing an employee.

Types of misconduct

Every workplace must have a relevant disciplinary code. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are violated, the employer can apply progressive discipline. In cases of serious misconduct employers can directly proceed with a disciplinary hearing. The employer must keep detailed records of offences and the sanctions applied.

There are different types of misconduct in the workplace. These range from less serious offences to very serious offences. It is influenced by the type of work and responsibility of the employee, the (possible) consequences of the offence, as well as the impact of the offence on the employee-employer trust relationship.

In cases of less serious offences, the employer can follow an informal process through good advice or guidance, correction and consultation. When the offence is of a serious nature, a formal process can be followed in terms of written warnings and/or dismissal after a disciplinary hearing.

Normal course

Progressive discipline consists of the following steps:

• Verbal warning – valid for three months.
• Written warning – valid for six months.
• Serious written warning – valid for nine months.
• Final written warning – valid for twelve months.
• Dismissal (after a disciplinary hearing).

The term for which warnings are valid is not specified by labour legislation, but in practice we recommend the stated terms.

The employer must consider the seriousness of the offence and apply progressive discipline according to the nature of the offence, e.g. in the case of:

• Absent without permission for one day = written warning.
• Absent without permission for two consecutive days = serious written warning.
• Absent without permission for three consecutive days = final written warning.
• Contempt – final written warning or disciplinary hearing.
• Failure to carry out instruction – final written warning or disciplinary hearing.

If the employee repeatedly violates the same rule and the employer applies progressive discipline, the employer can issue a more serious warning if the previous warning is still valid.

Immediate dismissal

Examples of once-off offences that could justify dismissal are:

• Gross dishonesty (theft, fraud, false statements).
• Intentional damage to property.
• Assault or attempted assault.
• Gross negligence.
• Extreme cases of contempt.
• Wilfully putting people’s lives in danger.

An employer cannot under any circumstances dismiss an employee without holding a disciplinary hearing. It ensures that a fair procedure has been followed and there is substantive proof to dismiss the employee.

The employer therefore needs to manage several business risks on a daily basis. It is strongly recommended that employers act proactively by implementing clear rules in the workplace. The correct procedures must also be followed with regard to all labour law issues, especially dismissal and general discipline in the workplace.

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

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It often happens that prospective employees are dishonest about their qualifications or experience and in certain instances, their criminal records. Sometimes employers only realise this after appointing the employee. Dishonesty is a serious offence and although the employee was not in your service when he/she lied to you, there was intent to mislead in order to gain employment. The employer may proceed with a disciplinary hearing to prove that the person lied and would not have been appointed had the employer known the truth

Forms of dishonesty on a CV and during an interview can include the following:

• The necessary qualification
• Previous work experience
• Falsification of references
• Not disclosing previous misconduct committed which may be relevant to the specific position
• Failing to provide important information relevant to the employer

Once the employee has accepted the offer of employment, the employee has to provide a specific service to the employer in return for remuneration. If the employee is unable to provide such a service, it becomes difficult for the employment relationship to continue.

How does dishonesty affect the working relationship?

Dishonest conduct can negatively impact the employment relationship, rendering trust irreconcilable. Once the employer becomes aware of the employee’s dishonesty, a disciplinary hearing should be scheduled immediately. Take note of the following:

• The employee should receive sufficient notice (at least 48 hours) of the disciplinary hearing;
• The notice should list the charges of dishonesty providing sufficient details;
• The employer should have all he evidence available at the hearing to prove the case, should the employee dispute the charge at the disciplinary hearing;
• All dismissals must be procedurally and substantively fair.

Be proactive

We advise all employers to be proactive and contact previous employers before appointing an employee to enquire about the prospective employee’s employment and reason for the contract terminating. If necessary, the employer can also use available search engines to verify the existence of previous employer. Employers should also request proof of the candidate’s qualifications before making a decision.

When an employee is appointed, it is important to provide the employee with an employment contract with the job specifications and list of duties which should be signed by both parties and witnesses

Compliance with legislation can be intimidating, especially for people without a legal background.  Labour law is not negotiable and compliance requires specialist knowledge, which poses a business risk to the employer.  One of the most important rules is that the employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing.  This ensures that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.

What should you as an employer know?

Evidence is defined as:  “the available body of facts or information indicating whether a belief or proposition is true or valid”.  It is not the argument, but rather facts or information to prove the argument is correct.  During the disciplinary hearing, the chairperson can only make a decision based on the evidence presented at the disciplinary hearing.  If admissible and trustworthy evidence were not presented, it cannot be taken into account.

Types of evidence:

• Verbal
  This is verbal testimonies from witnesses, for example where a person testifies at the hearing that he/she saw the accused employee steal a bag of potatoes.
• Documentary
  Documents that will prove the allegations against an employee, for example an attendance register that will prove that an employee was absent from work on a specific date.
• Concrete
  For example the actual bag of potatoes that the employee was caught with.
• Picture footage
  Video footage from a security camera showing the theft at work.  Photographs and sound clips will also fall in this category.

Rules relating to documentary evidence:

• A sworn statement will only be allowed if the person who made the statement is present at the disciplinary hearing to confirm the content.  The reason for this is that parties have a right to cross examine witnesses based on the content of their statements.
• Both parties have to agree to the authenticity of a document.  If the other party does not agree, a witness has to testify with regards to its authenticity.
• Original documents should be submitted as far as possible.  If you only have a copy available, the lack of an original document has to be explained.

Hearsay evidence:

Verbal evidence given by a person that does not have first-hand knowledge of a matter is regarded as hearsay evidence.  A typical example of hearsay is where a case of theft was reported to a manager by an employee who heard of the theft from another employee.  The evidence from the manager and the employee who reported that he/she heard about the theft would be hearsay.  Hearsay is not permissible unless it is substantiated by evidence from someone who has first-hand knowledge of the matter in question.

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) or in cases of severe misconduct proceed directly to a disciplinary hearing.  The employer should always first establish if there is enough evidence to prove a case prior to making the decision to proceed with a disciplinary hearing.