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.

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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.

What is the CCMA?

The Commission for Conciliation, Mediation and Arbitration (CCMA) was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA), Act 66 of 1995 and is aimed at promoting fair practises and resolving labour disputes within the working environment.

Recent amendments in legislation that affects the CCMA

Recent amendments to the LRA aim to reduce the case load of the Labour Court and the CCMA, as well as create more stability within the labour market. However, the case load of the CCMA was bound to increase due to the effect of the CCMA’s increased power and the fact that it is a free service.

Amendments having the biggest effect on employers, are the expansion of the CCMA’s jurisdiction to include sexual harassment cases, as well as the arbitration of retrenchment disputes involving employers with less than 10 employees. This means that it is now easier and cheaper for an employee to refer a sexual harassment case.

An employee can refer a dispute to the CCMA on account of dismissal, wages and working conditions, unfair labour practises, workplace changes and discrimination. An employer has the right to either represent him-/herself at the CCMA, or be represented by an employers’ organisation registered with the Department of Labour.

I have received notice to attend a CCMA case – now what?

The employer will receive two documents from the CCMA regarding a case. First is the referral form (form 7.11), which states the reasons why this matter is referred to the CCMA, as well as what outcome the employee is seeking (in terms of compensation and/or reinstatement). The second document is the notice of set down and states the date, time and place of the proceedings, as well as what process that will be followed on the day. CCMA cases are held at the CCMA in your area or at your local Department of Labour in smaller regions.

It is vital to attend the CCMA case, as failure to do so can result in dire consequences. Should you not be able to attend, it is strongly advised that you contact the CCMA and make arrangements – it will then be on the discretion of the commissioner to reschedule or to continue with the proceedings in your absence.

There are three CCMA processes:

Conciliation
This is an informal and confidential process aimed at reaching an agreement to settle a particular dispute. In some circumstances the CCMA might first try to resolve the dispute telephonically.

Con/Arb

This is a combination of the abovementioned processes and is held on the same day. The process will commence with the “con” – conciliation. If the dispute is not resolved or settled, proceedings will immediately continue with the “arb” – arbitration. A party to a con/arb can object against the arbitration proceedings in writing to the CCMA and the other party at least seven days prior to the date of the “con/arb” hearing.

The commissioner is an independent third party to act as a facilitator assisting the parties to reach an agreement. Furthermore, the commissioner determines whether the dismissal or labour practices was indeed fair or unfair and then makes a binding award if applicable. This award can be either reinstatement or compensation, which is limited to a payment of a maximum of 12 months of the employee’s salary for unfair dismissals or labour practices, but 24 months of the employee’s salary for automatically unfair dismissals (on account of discrimination). The onus of proof is on the employer to prove that the dismissal or labour practices were fair.

Having clear rules in the workplace and following correct procedure is a proactive way to minimise the employer’s risk when it comes to CCMA matters. A Commissioner at the CCMA will always ask:

• Was there a rule in the workplace?
• Is there proof that the employee was aware of this rule?
• Did the employee act according to the rule?
• Were there progressive warnings (according to the offence)?
• Was a disciplinary hearing held (if applicable)?

CCMA Statistics

Hundreds of new cases are referred to the CCMA every working day. Most cases pertain to unfair dismissal. This shows us that 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. The CCMA’s target to settle 70% of all cases referred, should not influence employers to settle the dispute when the employer feels that he/she has followed the correct procedure regarding the matter.

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.

In general, arbitration awards in the employee’s favour, can be directly linked to the employer not following the correct procedure and can the CCMA make an award for up to 12 months of the employee’s salary. In case of loss of and/or damage to the employer’s property, the employer should act in terms of labour law with respect to the employer-employee relationship. The employer also has the option to act in terms of criminal law and report the incident to the police, although this is not a prerequisite to take disciplinary action with respect to the employer-employee relationship.

An employer cannot dismiss an employee under any circumstances, even with valid reason, without holding a disciplinary hearing to ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.

The definition of the employer’s property refers to both physical and intellectual assets. Typical physical assets include the workplace premises, buildings, equipment, machinery, diesel, products, stationary, company cars, cell phones, internet, working hours, etc. Typical intellectual assets include company secrets, trademarks, patents, confidential information, etc. It is vital for employees to recognize the employer’s property and the responsibility in utilising it in the employer’s interest. Every employee, irrespective of responsibility, duties or position, controls some form of the employer’s property on a daily basis. Businesses suffer enormous financial losses due to employees that misuse or damage the employer’s property, whether due to negligence or with intent.

It is important to differentiate between offences due to negligence (failure to take proper care) or with intent (deliberate misuse for personal gain), as it has a definite impact on the seriousness of the offence. The seriousness of the offence is also influenced by the employee’s type of work and responsibilities, (possible) consequences of the offence and the impact of the offence on the employee-employer trust relationship.

Steps to follow:

• Investigate
  During the investigation the employer must establish whether the employee misused, damaged, or lost any of the employer’s property. 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.

Be proactive:

We strongly advise employers to implement proactive measures to combat misconduct referring to loss, damage, misuse and waste of the employer’s property by following these guidelines:

• Use labour legislation to your benefit in drafting your employment contracts by including proactive clauses that require the employee’s permission:
  • Cameras in the workplace / searching of personal belongings: These clauses are vital to manage theft and/or misconduct in the workplace. If this clause is set out in the employment contract and the employer suspects theft and/or misconduct, he/she can immediately install cameras in the workplace and/or search employees’ personal belongings without then trying to obtain the employee’s consent which can possibly alert the offender.
  • Deductions: An employer cannot deduct any money form an employee’s salary without the employee’s written consent unless the deduction is required or permitted in terms of law (UIF and PAYE), collective agreement, court order or arbitration award. Additional deductions that can be made with the employee’s consent include housing, failure to give statutory notice, training costs, rations, etc. If this clause is set out in the employment contract the employer can immediately make these deductions as they arise without then trying to get the employee’s consent.
• 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.
• 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.
• Ensure that every employee has a detailed job description to clarify his/her duties and the employer’s expectations.

Labour risk is a huge business risk. To ensure the sustainability and profitability of your business, labour risk needs to be managed in a pro-active manner. The employer must therefore have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules. Clear rules and guidelines ensure that friction and misunderstandings are kept to a minimum, which in turn promotes not only productivity but also a positive working environment.