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.

Rules are implemented in the workplace through the employment contract, policies and procedures. The employment contract is the basis of the relationship between the employer and the employee and states the terms and conditions as agreed upon. This cannot be amended without proper consultation with the employee. Therefore the majority of rules in the workplace are implemented through policies and procedures.

What is a policy?

A policy informs employees of the rules in respect of a certain topic.

The employer puts these rules in place in order to ensure the smooth and efficient running of his/her business operations.  Policies are not underwritten by labour legislation, but define the employer’s own rules, which must be reasonable, for the workplace.

We strongly advise employers to include the following policies in the workplace:

• Code of conduct
• Smoking policy
• Sick leave policy
• Cell phone policy

What is a procedure?

A procedure is an established or official way of handling a situation, put in place to inform employees and employers alike, of the necessary steps when a certain incident occurs.

We strongly advise employers to include the following procedures in the workplace:

• Disciplinary code
• Appeal procedure
• Grievance procedure

It is important that the employer must be able to prove that the employees are aware of policies and procedures in order to apply discipline. 

Contact the LWO at 0861 101 828 for assistance and advice when implementing policies and procedures in the workplace.

Not an LWO member yet? Take a look at our membership packages.

The general rule is that an employee’s actions outside the working environment and after hours is not the employer’s concern and may the employer not institute disciplinary action against an employee for acts of misconduct committed after hours. The exceptions to the general rule are instances where the employer can prove that the employee has brought the name of the business in disrepute, or where the employee’s conduct has a sufficient connection with the business of the employer.

The position of the employee in the company will also be an important factor when considering disciplinary action.

The nature of the offence also determines whether disciplinary action should be implemented or not.

If an employee is dishonest on their home loan application or a vehicle finance application, the employer will not be entitled to take disciplinary action.  If the employee however commits fraud by altering a payslip to inflate his/her income, the actions of the employee might justify a dismissal.  It is of utmost importance to preserve the trust relationship between an employer and an employee.

It has been held by our courts that the link between the employee’s off-duty misconduct and the employer’s business exists where the employee’s conduct has a detrimental or intolerable effect on the efficiency, profitability or continuity of business of the employer.

A variety of factors should be considered in matters where employees commit misconduct outside the working environment.  The employer should consider each matter upon its merits and discipline must be applied consistently.

The LWO can provide assistance where employers need to determine whether disciplinary action is justifiable for misconduct outside of the workplace.  Contact the LWO for more information and/or advice at 0861 101 828.