When is an employee a deserter?

Desertion is when an employee who is absent from work for more than five days, without notifying the employer and with no intention of returning to the workplace. Absence where the employee does not turn up for work at all, can be very difficult to manage. All employees have an obligation to inform their employers of their absence by any means possible. It is very seldom that there are no means whatsoever available of notifying the employer of the absence.

What must the employer do?

It is extremely important that the employer must be able to prove that the employee has no intention of returning to work. Therefore the employer must attempt to contact the employee in order to establish the reason for the employee’s absence, to urge the employee to return to work and also inform the employee of the consequences of his/her absence. To have proof of these attempts to contact the employee, we advise employers to send an sms or a letter to the employee’s last known address. It is the employee’s duty to notify the employer of a change of address.

After the initial attempts to contact the employee, disciplinary measures can be taken if the employee does not return to work. The employer must send a notice of disciplinary hearing to all last known contact details of the employee. A hearing must be held and may proceed in absentia, after which the employee may then be dismissed.

If the employee does return to work, the employer may request reasons for the employee’s absence and failure to notify the employer. Should the employee be unable to provide valid reasons, the employer may proceed with disciplinary action as per the disciplinary code. Valid reasons for not being at work and failing to inform the employer, could include hospitalisation or arrest for an offence which is not work related.

The disciplinary hearing

During the disciplinary hearing the employer must prove the desertion and provide evidence attesting to the employee’s unauthorised absence, as well as the steps taken by the employer to contact the employee. The chairperson at the hearing then evaluates all evidence presented and proceeds to make a finding. When the employee is found guilty of absenteeism, the employer must notify the employee of his/her sanction according to the disciplinary code.

There are various factors to consider when deciding on the appropriate sanction in cases of desertion:

• length of absence;
• reason for absence;
• attempts made by the employee to contact the employer during his/her absence;
• previous warnings for absenteeism;
• whether there is a rule or policy requiring the employee to contact his manager/employer regarding his absence;
• the employee’s position and type of work done; and
• whether the employer had to replace the employee.

Should the employer pay the deserter up until the date of dismissal?

The principle of no work, no pay applies. The employee is only entitled to payment of wages up to the last date that he/she physically worked. Any accrued leave pay due to the employee at the time of dismissal should also be paid.

Employees who desert the workplace, often approach the Commission for Conciliation, Mediation and Arbitration (“CCMA”) stating unfair dismissal. The onus is on the employer to prove that a fair process was followed and that the assumption that the employee did not intend to return to work was reasonable under the circumstances. It is therefore important to follow the prescribed steps to manage labour as a business risk effectively.

Contact the LWO Employers Organisation at 0861 101 828 | info@lwo.co.za | www.lwo.co.za for information or assistance. We are available 24/7.

Substantive fairness – for what reasons can the employer retrench employees?

There are three basic reasons that can lead to retrenchment:

• Economic reasons
  This refers to when a business is no longer in the financial position to employ all current employees any longer due to a variety of reasons that can include the minimum wage, economy, recent drought, amended legislation impacting on the cost of doing business, entry of competitors into the market, etc.
• Technological reasons
  Progress in a sector often introduces new technology that can result in making existing jobs redundant. Progress can refer to new techniques and methods of completing tasks quicker, technological inventions, new machinery and mechanisation that can have a direct impact on the number of employees needed.
• Structural reasons
  For a business to adjust to a changing environment whether due to challenges or progress, restructuring takes place regarding changes in the workforce, which can lead to positions becoming redundant. Structural changes can also follow when a business makes strategic changes in terms of its vision and goals. When a business makes structural changes, these changes are reflected in the organogram or organisational chart.

Procedural fairness – following the right procedure

The Labour Relations Act (LRA) specifies a very strict procedure which is crucial to follow regarding retrenchment. It is important that employers take note that the terms and conditions of employment may not be amended unilaterally. Steps to be followed in the retrenchment procedure should always include:

• Notifying employees
  If after careful consideration of all circumstances, the employer decides to proceed with retrenchment as a last option, employees must be notified by means of a written memorandum, that must contain specific information as per the LRA, giving employees at least 48 hours’ notice enabling them to prepare for the consultation with regards to other workable solutions and general input. If an employee is a member of a trade union, the trade union should also be notified.
• Consultation
  Consultation allows both parties to engage in discussions to consider alternatives to retrenchment, minimise retrenchments, establish timeframes and reduce the negative impact of retrenchment. The employer should in all good faith keep an open mind throughout the process and seriously consider proposals put forward by employees. Meetings should be held individually with all possibly affected employees as well as the trade union where applicable.
• Implementation after consensus
  The LRA does not define the period over which consultations should extend, but parties must keep consulting and engage in discussions until consensus is reached. If no alternative to retrenchment was identified and the employer has no other option but to proceed with the retrenchment process, retrenched employees are entitled to the following payments where applicable:
  • severance pay;
  • notice pay;
  • outstanding leave; and
  • any other outstanding amount the employee is entitled to

Most cases referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) pertain to unfair dismissal. Employees are more informed about their rights and the procedures to follow when they feel they have been wronged by the employer. In general arbitration awards in favour of the employee are due to the lack of following correct procedure on the employer’s behalf.

We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters, especially dismissal, retrenchment and general discipline in the workplace, by acting proactively.

What is insubordination

• Expect employees to always act in the best interest of the employer
• Establish a fixed standard in terms of quality and quantity
• Give reasonable and lawful instructions
• Implement clear rules in the workplace
• Apply discipline
• Say ‘no’
• Change terms and conditions of employment (subject to following the correct procedure)

Types of insubordination

Insubordination can be related to a wide variety of offences and is mainly linked to disrespectful behaviour. Common offences include:

• Failing to obey a reasonable and legal instruction
• Refusing to obey a reasonable and legal instruction
• Non-compliance with established rules and procedures
• Distributing unauthorised propaganda – information, especially of a biased or misleading nature, used to promote or publicise a particular political cause or point of view
• Insolence – any disrespectful attitude towards the supervisor, a more senior person or a client
• Abusive language – this offence is more serious when it is aimed at race, gender, religion or any other arbitrary ground
• Playing games – this offence is more serious when such action endangers the safety or health of others, or the good spirit and smooth running of work

Steps to follow:

We advise employers to follow these steps to identify misconduct referring to insubordination:

• • Investigate
    During the investigation the employer must establish whether the employee acted in an insubordinate manner. 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. To establish if the sanction is fair, the employer must consider the facts of the case as every case has its own merits. 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
    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 must take note to keep detailed records of employees’ misconduct and sanctions applied.

In conclusion

A disciplinary code is vital to ensure that there are clear rules and procedures in the workplace to be followed by employees. Every employee must have a detailed job description to clarify duties and the employer’s expectations.   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.

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The Basic Conditions of Employment Act defines an employee as:

• “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration; and
• any other person who in any manner assist in carrying on or conducting the business of the employer”

The Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA) however broadened the definition of an employee to also include job applicants.

An employment relationship commences as soon as an employee accepts the offer of employment.  The job applicant will then be regarded as an employee and can the employer not merely terminate the contract of employment.  The employee will be in a position to refer the revocation of the contract of employment to the CCMA as an unfair dismissal dispute.

Employers should caution against the revocation of contracts of employment.  If the employer discovers that the employee made a misrepresentation prior to the date on which the employer made an offer of employment, disciplinary steps should be followed.

Contact the LWO when you consider terminating any contract of employment to ensure the correct procedure is followed.

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Recent amendments to legislation afford Commission for Conciliation, Mediation and Arbitration (CCMA) commissioners the authority to handle sexual harassment cases. Sexual harassment in the workplace can best be explained as a situation involving unwanted sexual advances or similar remarks that make the “victim” of the remarks feel uncomfortable.

First and foremost, it is important that the victim clearly indicates that the act is unwelcome by telling the person making the remarks or advances and walking away from the situation and/or reporting such actions to the employer or the manager. It is important to report such behaviour as soon as possible, irrespective if it is an on-going or a one-off incident.

Types of sexual harassment include:

• Physical
  Physical sexual harassment can range from physical contact and inappropriate touching, to even less direct physical acts. The reasonable person test would also be applied here to judge if it was harassment or not.  If there is safety searches and routine checks done, same gender searching must take place so that there is no breach of one’s privacy, for example a female searching through the clothes of another female.
• Verbal
  Verbal sexual harassment can be suggestive talking, jokes, inappropriate whistling, rude and offensive remarks, or even a hint in the direction of sex.
• Non-verbal
  Non-verbal sexual harassment can be unwelcome gestures, indecent exposure, showing of indecent material, displaying or electronically sending explicit pictures by e-mail or cell phone to an employee or a colleague.

What must the employer do to avoid such situations?

• Give special training to managers, supervisors and shop stewards on sexual harassment and the need to eliminate it
• Promote dignity and equality in the workplace through policies and procedures, specifically a sexual harassment policy, that should:
  • be displayed and employees should be made aware of this policy
  • allow for informal of formal complaints (which could be resolved by discussion with or without the assistance of an appropriate third party)
  • state clearly that harassment is a form of discrimination and could in serious cases lead to dismissal
  • have clear reporting structures

Should there be a disciplinary hearing when such allegations are made?

When the employer becomes aware of the allegations, an investigation should follow. The employer can advise the victim to raise a formal grievance, thereby requiring further disciplinary action by the employer. If the victim does not want to raise a formal grievance, the employer can institute disciplinary steps against the offender when sufficient evidence was found during the investigation.

What happens when an employer turns a blind eye?

An employer who fails to take necessary steps to eliminate sexual harassment in the workplace and to comply with the Employment Equity Act, may be held liable for employees’ conduct.

Employers must act proactively and implement policies and procedures in the workplace to create a safe and secure working environment.

Contact the LWO at 0861 101 828 for assistance/advice on this subject.  We are available 24/7.

Obesity and illnesses related to obesity in South Africa are regarded by many medical practitioners as a pandemic. In medical terms a person with a body mass index over 30 is regarded as morbidly obese.

In a recent judgement by the European courts, judges decided that obesity may be regarded as a disability and that special measures should be taken by employers to accommodate obese employees and to create a comfortable working environment.

In South Africa obesity is not regarded as a disability and the current position is that an obese person should be treated equally to any other employee.

Thus said, if an employee therefore performs poorly, due to their obesity or not, the employer can follow the poor work performance procedure where the areas where the employee’s performance is lacking must be discussed. During this procedure the employee must also be given an opportunity to state his/her case and request assistance to enable him/her to perform according to the employer’s standards.

Follow the right procedure

After the poor work performance procedure has been followed and the employee’s performance has not improved or conformed to the employer’s standards, dismissal may be considered due to poor performance. The employer must however ensure as per any dismissal, that a fair process was followed and all the assistance and measures the employee and employer discussed and agreed upon, was implemented.

One can never dismiss an employee just because of obesity. It is however the employee’s responsibility to ensure that the standards set by the employer in the workplace are met.

If during a discussion with regards to poor work performance, an employee advises that the poor work performance is due to ill heath as a result of obesity, the employer may assist the employee by providing the employee with time off to seek assistance from a medical practitioner and/or a dietician. However, if this is not the reason offered by the employee for his/her poor work performance, the employer should not make any mention of the employee’s weight, as this may be seen as discrimination.

When obesity causes severe medical problems, a medical incapacity procedure may be considered if there is sufficient medical evidence available to support this instance.

The South African courts have not tested the specific subject of obesity in the way the European courts have, and employers should therefore follow the procedures at their disposal.

The LWO Employers Organisation’s capable legal advisors and representatives are able to assist employers to ensure that a substantively fair process and fair procedure is followed to minimize the employer’s risk.

Contact the LWO at 0861 101 828 for assistance and/or advice in this regard.