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.

Is the employee “sleeping”?

When the employer suspects an employee of sleeping on duty, it is vital to confirm that the employee is actually sleeping by doing the following:

• Ensure a witness is present
• Record the employee’s behaviour and appearance. Request witnesses to also record their observations and make sure that all these records are in writing.
• Investigate if the employee is in fact sleeping by checking the following:
  • Is the employee conscious?
  • In what position is the employee?
  • Is the employee making any noises, e.g. snoring?
  • Are there any other physical indicators that the person is sleeping?
• Try attracting the employee’s attention by doing the following:
  • Speak to the employee and call him/her by name;
  • Knock on the door or make a similar noise, e.g. clapping your hands together;
  • Gently shake the employee’s shoulder or back.
  • Repeat these steps until the employee shows an reaction.

Evidence of these steps taken must be recorded by putting all observations in writing as well as taking photos and other footage.  The person taking the footage must also act as a witness when the employer takes disciplinary action.

Disciplinary code

Disciplinary procedure

We advise employers to follow these steps when an employee is sleeping on duty:

• Consult with the employee – During this consultation the employer must discuss the offense with the employee and also 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.

Be proactive

We advise employers to implement proactive measures to reduce sleeping on duty and misconduct in general, by doing the following:

• Ensure all meal breaks and rest periods comply with applicable labour law.  The Basic Conditions of Employment Act prescribes a one hour meal break after five hours of work, which may be shortened to half an hour by agreement.  The employee is also entitled to a weekly rest period of 36 consecutive hours.
• Include proactive clauses in the employment contract that require the employee’s permission, e.g. to install cameras in the workplace.  The employer can then, when he/she suspects misconduct, immediately install cameras in the workplace without then trying to obtain the employee’s consent which can possibly alert the offender.
• Ensure the disciplinary code is relevant and up to date in terms of offenses and appropriate sanctions.  The employer must also be able to prove that all employees are aware of what the code entails – we advise employers to have a meeting where the disciplinary code is discussed and circulate an attendance register as proof.
• Encourage employees to report dishonest conduct of 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.

All employers have two goals:  to make a profit and be sustainable.  Employers should therefore consistently evaluate all factors that can have an influence on the long term success of the business and manage labour risk proactively by implementing clear rules in the workplace and following the correct procedures with regards to all labour matters, especially dismissal and general discipline in the workplace.

What is an employee entitled to with regards to maternity leave?

An employee is entitled to four consecutive months’ maternity leave and should inform the employer in writing at least four weeks before the commencement of the maternity leave, of:

• the date on which the maternity leave will commence; and
• the date when the employee will return to work.

Maternity leave may begin at any time from four weeks before the birth of a child, or earlier if a medical practitioner certifies that it is necessary. An employee may not work for a period of six weeks after the birth of a child, unless a medical practitioner certifies that the employee is able to do so.

Maternity leave is unpaid leave. The employee may however claim from the Unemployment Insurance Fund (UIF) if they have been contributing to the Fund.

In the event of a miscarriage during the third trimester of pregnancy, or a stillborn child, the employee is entitled to six weeks’ maternity leave after the miscarriage or stillbirth.  It doesn’t matter whether or not the employee has commenced maternity leave at the time of the miscarriage or stillbirth.

What is the employer’s responsibility?

The Basic Conditions of Employment Act prohibits employers from requiring or permitting a pregnant or nursing employee, to perform hazardous work.

An employer must offer suitable alternative employment to an employee during pregnancy and for a period of six months after the birth of her child.  Especially if the employee is required to perform night work, or if her work poses a danger to her health or safety or that of her child, unless it is not practicable to do so.  Alternative employment must not be less favourable than the employee’s ordinary terms and conditions of employment.

When returning after maternity leave, the employee must be placed back in her position.  The employer may not dismiss an employee during maternity leave as this will be regarded as an automatically unfair dismissal.  The Commission for Conciliation Mediation and Arbitration (CCMA) can then issue an award for compensation of an amount up to 24 months’ remuneration.

An option is to amend the terms and conditions of employment as agreed upon in the employment contract. Employers should note that if these changes are made unilaterally (one sided), the employee can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). This can result in preventing changes to the terms and conditions of employment and restoring the original terms and conditions as agreed upon.

Proposed changes may include changes to an employee’s:

Working hours

• reducing an employee’s working hours and salary accordingly
• implementing short time
• increasing an employee’s normal working hours to 45 hours per week

Remuneration

• reducing an employee’s salary (make sure the employee still earns at least the minimum wage if applicable)
• reducing an employee’s benefits, e.g. cell phone, medical aid, fuel allowance, pension fund, etc. (make sure the employee still receives at least the prescribed benefits if applicable)
• amending the conditions on which a bonus is payable – is it a thirteenth cheque or is it linked to work performance and at the employer’s discretion

Steps to follow:

• Notify the employee in writing, stating clear reasons for the proposed changes.  The employer must give the employee at least 48 hours’ notice enabling him/her to prepare for the consultation with regards to other workable solutions and general input.
• Consult with the employee in order to reach consensus.  Parties must keep consulting and engage in discussions until consensus is reached.

Be proactive:

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

During a disciplinary hearing, the chairperson will:

• make it clear from the start that abuse and insults will not be tolerated and if it does occur, that person may be ordered to leave the room;
• listen to all the evidence presented during the hearing and adjourn after the hearing to study the evidence;
• make a finding of guilty or not guilty based on presented evidence – the employee will also have the opportunity to state mitigating factors and the employer to state aggravating factors;
• make a recommendation regarding an appropriate sanction in line with the disciplinary code – if the employee is unhappy with the ruling he/she may submit a written notice of appeal within seven days, stating reasons on which the appeal is based.  The appeal hearing will be held under a different chairperson.

The chairperson must be objective and may not have any knowledge regarding the case prior to the hearing.  It is not the chairperson’s duty to prove if the accused employee is guilty or not.

The employer (or person acting on behalf of the employer) must lead all evidence, including calling witnesses, presenting documentation and/or video footage and emphasise the trust relationship between the employer and employee.  The employer must take care to investigate and gather evidence in preparation of the disciplinary hearing to ensure that the employee is not found ‘not guilty’ due to a lack of evidence presented.

Contact the LWO at 0861 101 828 for assistance and advice when conducting a disciplinary hearing.