The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is that the employer follows the correct procedures, especially dismissal procedures.

How to dismiss an employee:

An employee can be dismissed on three accounts: misconduct, incapacity (poor work performance or medical disability) and operational requirements (economical, technological or structural reasons, which are also known as “retrenchments”). When dismissing an employee, it is paramount to follow the correct procedure.

There are two procedures:

1. Disciplinary hearing – on account of misconduct
2. Consultation – on account of incapacity or operational requirements

How to conduct a disciplinary hearing:

Procedure to follow when dismissing an employee on account of misconduct:

Your disciplinary code stipulates the rules of the workplace. It is vital that these rules are discussed with employees and reduced to writing. Only then can employers prove that employees are aware of the rules and the consequences when these rules are broken. When these rules are not followed, the employer must apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. A disciplinary hearing must be held to ensure that fair procedure is followed and that a substantive reason has been established for the employee to be dismissed. It is also of the utmost importance that an employee is given the opportunity to present his/her case and to call witnesses.

Should a hearing be formal or informal?

A hearing can be formal or informal, but it is essential that the employer must be able to prove that a hearing was held. Our advice is therefore to always conduct a formal hearing. The employer can then ensure that all the necessary paperwork is in order if the matter ultimately proceeds to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Steps to ensure a fair procedure and substantive fairness:

1. Issue the employee with a notice to attend a disciplinary hearing. The employer must state the date, time and place where the hearing will take place. The notice must also contain a detailed description of the charges brought against the employee, including the date, time and description of the incident(s). We advise employers to provide the employee with at least 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow him/her to prepare for the hearing.

2. Hold the hearing on the date and time proposed. Even if the employee does not attend the hearing the employer should proceed to present the evidence to the chairperson. It is up to the latter to determine if the employee had sufficient notice of the hearing and if the employee was absent for a valid reason or not. At the end of the hearing the chairperson recommends to the employer to either dismiss the employee or not.

3. During the hearing the chairperson will ask the employee to plead guilty or not guilty to the charges brought against him. After this, the employer presents his case by presenting evidence and calling witnesses. The employee is then allowed to present his/her case and cross-examine the evidence presented by the employer. Thereafter, the employer may cross-examine the employee’s evidence and witnesses. At the end of the hearing both parties make closing arguments.

4. The chairperson must make a finding of guilty or not guilty. The employer is then asked to present aggravating factors, while the employee is asked to present mitigating factors. The chairperson then determines the sanction to be imposed on the employee. If the chairperson determines dismissal to be the appropriate sanction, the employee can be dismissed with immediate effect.

Who should be the chairperson?

The chairperson of a hearing should always be an objective and impartial third party to the matter, preferably with knowledge of labour law procedures and requirements. We always suggest that the employer ask a legal representative from an employers’ organisation. If an impartial person is not available on the premises, you can ask a neighbour, if he/she has sufficient knowledge of the procedures to follow. It is important to prove at the CCMA that the chairperson was not biased.

A commissioner at the CCMA will always enquire:

• 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?
• Was there progressive warnings (according to the offence)?

How to hold a consultation:

• Issue the relevant parties with a notice in writing of the intended consultation.
• Provide the parties with at least 48 hours’ notice of the consultation, excluding weekends and public holidays, to allow preparation for the consultation.
• Hold the consultation where the parties discuss the issues specified on the notice of consultation, determine what steps should follow next and agree on outcomes to be achieved after the consultation.
• This might include providing the other party with further training and or counselling and evaluation in the case of poor work performance; or sending an employee for an occupational medical assessment for medical incapacity; and for the employer to provide feedback on points discussed during the retrenchment consultations regarding possible alternatives raised
• Hold follow-up consultations where necessary to evaluate the current position of affairs.
• If the desired outcome is not reached within the stipulated time period or where the employee is deemed to be permanently incapable of performing his/her work (in the case of incapacity or poor work performance procedures), then the employer may provide the employee with a notice of hearing where similar procedures as a disciplinary hearing for misconduct will be followed.
• With matters such as retrenchments, once all of the consultations have been held, and where necessary the employer has waited for the required time to pass, the employer can give notice of the retrenchment to the affected employees.
• Ensure that a written minutes of the proceedings are kept on record and available for any future disputes that might arise.

• replacement of another employee who is temporarily absent;
• temporary increase in work volume (expected duration up to 12 months);
• student or graduate internships;
• project work;
• non-citizens that have been granted a work permit for a defined period;
• seasonal work;
• public works or job creation schemes;
• positions funded by external sources for a limited period;
• after retirement age was reached; or
• any other justifiable reason

Using a fixed term contract as a probation period, is not a justifiable reason in terms of the LRA and constitutes unfair labour practise.  Termination of the contract after completion of the fixed term, may be seen as unfair dismissal.

1. the employees earning in excess of the income threshold which under the Basic Conditions of Employment Act;
2. an Employer that employs less than 10 Employees; or
3. that employs less than 50 Employees and whose business has been in operation for less than 2 years, unless the Employer conducts more than one business; or the business was formed by the division or dissolution for any reason of an existing business; and
4. an Employee employed in terms of a fixed-term contract which is permitted by any statute, sectoral determination, or collective agreement

Using a fixed term contract as a probation period, is not a justifiable reason in terms of the LRA and constitutes unfair labour practise.  Termination of the contract after completion of the fixed term, may be seen as unfair dismissal.

CAN A FIXED TERM EMPLOYMENT CONTRACT BE RENEWED?

The employer must be careful not to create an expectation of permanent employment with the employee, which can easily happen when a fixed term employment contract is renewed. When renewing such a contract (for a second, similar period), the employer must inform the employee in writing that there will be no further renewals and confirm the expiry date of the contract. The more frequently an employer rolls over a fixed term contract, the more reasonable becomes the employee’s expectation that it will continue to be rolled over in the future, hence creating an expectation of permanent employment.

If a fixed term employment contract comes to an end and the employee remains in this position, legislation states that that employee will be deemed a permanent employee, unless the contrary can be proved. This means that the contract will be deemed to have been tacitly renewed on the same terms, except that the relationship will now be of a permanent duration and the contract may only be terminated by dismissal, the employee’s resignation or death.

Employers must clearly understand that to disguise what is actually permanent employment in the form of a fixed term contract is illegal.

Be proactive:

The most important rules with regards to fixed term employment contracts are:

• Never create an expectation of permanent employment;
• Make sure that you will be able to motivate why a person is appointed on a fixed term in terms of the listed grounds as referred to in the LRA;
• If a fixed term contract is renewed, ensure that it does not create an expectation and amend the contract timeously with good reason;
• Fixed term employees must be treated the same as permanent employees with regards to wages, leave and other benefits.  Employees on fixed term contracts must also be given equal access to opportunities to apply for vacancies as well as be entitled to severance pay upon termination of employment where the employee is employed on a fixed term contract exceeding 24 months.

 We advise employers to ensure that their employment contracts comply with applicable labour legislation and that expiration of fixed term contracts are managed properly and with the necessary care.

This article is intended for informative purposes and does not constitute advice. Always obtain advice from a professional when dealing with contracts. For more information contact the LWO on 0861 101 828 or info@lwo.co.za

The South African economic landscape is more often than not can be a highly challenging environment where the employer must manage labour matters as a business risk in order to ensure the productivity and sustainability in business .

An employment contract is crucial in managing labour relations as it is the basis of the relationship between the employer and the employee. It 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. The employment contract is vital to keep confusion and discontent in the working relationship to a minimum.

Labour legislation prescribes certain basic requirements that must be complied with in the employment contract and which is not negotiable. However, the employer can use legislation to his/her benefit in the drafting of employment contracts. This entails implementing additional clauses in the employment contract to empower the employer by using labour legislation to eliminate possible future disputes between the employer and the employee.

THE BASIC REQUIREMENTS THAT MUST BE COMPLIED WITH IN THE EMPLOYMENT CONTRACT:

The Basic Conditions of Employment Act, Act 75 of 1997, stipulates that at the start of employment, employers must provide an employee with Written Particulars of Employment containing the following information:

• Employer and employee details – the employer’s full name and address as well as the employee’s name and occupation or a brief description of the work
• Employment details – place/s of work, date of employment, working hours and days of work
• Payment details – salary/wage or the rate and method of calculating wages, rate for overtime, any other cash payments, any payments in kind and their value, frequency of payment and any deductions
• Leave details – any leave to which the employee is entitled
• Notice and contract period – period of notice required for termination of the contract and period of the contract

Furthermore the employer is obliged to have a description of any Council or Sectoral Determination under which the employer’s business resides available for employees – an example would be Sectoral Determination 13 in the case of farming activities.

Additional clauses to empower the employer:

Time periods

Short time:
If an employer is unable to employ his/her employees for the ordinary hours of work per week due to slackness of trade, shortage of raw materials, a general breakdown of plant or machinery caused by an accident or any other unforeseen emergency, the employer may implement short time during, but not exceeding the period of unforeseen circumstances, if employees had agreed to it in their contract. For the period of short time the employees are only remunerated for the hours worked, an on condition that employee is paid at least the applicable minimum daily wage, where the employee works less. Where practically possible, written notice regarding the implementation of short time must be given to the trade union representative and/or the employees in writing at least 24 hours prior to, or less if the circumstances are more urgent, the date on which short time will be implemented.

Why is short time important? Employers who don’t have this clause in their contracts have to compensate employees for the time at work even though the employees are unable to perform their duties. This can be very costly for employers, since employees have to be paid for their unproductive time.

Daily rest period:
By consent the daily rest period of one hour can be reduced to half an hour.

Consent

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.

Other

Confidentiality and restraint of trade:

This clause may seem unnecessary but can protect the employer’s protectable business interests in future as his/her business develops.

We strongly advise employers to make use of proactive clauses in the employment contract and follow correct procedures with regards to all labour matters, especially dismissal, retrenchment and general discipline in the workplace, by acting pro-actively.

Contact the LWO for advice and assistance in this matter.

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The workplace can sometimes be a very challenging environment where employees and customers alike can be exposed to various potential health and safety risks created by the employer’s operations, vehicles, machinery, chemicals, and the environment (fires, weather, natural disasters, etc.), to name but a few. This article briefly overviews some of the Occupational Health and Safety Act considerations that employers should know about.

The Occupational Health and Safety Act, Act 85 of 1993, regulates health and safety in the workplace. The aim of this Act is to ensure a safe and risk-free working environment. In case of an incident, it is vital to follow correct procedures in handling as well as reporting the incident in order to avoid possibble penalties such as fines and imprisonment.

Employer’s responsibility:

This Act clearly stipulates that every employer shall provide and maintain, as far as is reasonably possible, a working environment that is safe and without risk to the health of employees. All employees must be aware of and understand the Occupational Health and Safety Act. By being proactive the employer can limit and avoid incidents. It is the employer’s responsibility to:

• identify potential hazards in terms of the type of work being done (produced, processed, used, stored, transported, etc.) as well as equipment used. Ensure that every employee is informed of and clearly understands these potential hazards.
•  establish and enforce precautionary control measures necessary to protect employees against the identified potential hazards and provide the means to implement these precautionary control measures.
• provide the necessary information, instructions, training and supervision for employees to comply with. Work done and equipment used must be under the general supervision of an employee trained to understand the potential hazards associated therewith.

No employee may carry on with a task placing them at risk unless the necessary precautionary control measures have been taken.

The employee’s responsibility:

• take care of his/her own health and safety, as well as that of other persons who may be effected by his/her actions.
• carry out any lawful and reasonable instruction regarding health and safety in the workplace prescribed by the employer or authorised person.
• comply with the policies and procedures implemented by the employer in the workplace.
• use the prescribed personal protective equipment when required.
• report any potential hazard to the employer, authorised person or health and safety representative as soon as possible.
• report any incident that can influence his/her health or cause an injury, to the employer, authorised person or health and safety representative as soon as possible, but no later than the end of the shift.

Who regulates health and safety in the workplace?

Health and safety representative

A health and safety representative must be appointed when an employer employs 20 or more employees. The type of workplace then determines how many additional health and safety representatives must be appointed. The health and safety representative must be a full-time employee nominated by co-workers and appointed by written agreement by the employer. The health and safety representative must be familiar with the circumstances and conditions of the designated workplace.

The duties (performed during ordinary working hours) of the health and safety representative includes to:

• conduct health and safety audits to regulate effectiveness of established measures;
• identify and report potential hazards to the authorised person or employer;
• investigate incidents and complaints together with the employer and file a report in writing;
• make representations regarding health and safety in the workplace to the authorised person or employer, or when necessary to the health and safety inspector;
• take part in inspections by health and safety inspectors;
• attend health and safety committee meetings.

Health and safety committee

A health and safety committee must be established when there are two or more appointed health and safety representatives. This committee should meet at least once every three months to initiate, promote, maintain and review measures of ensuring health and safety in the workplace.

The health and safety committee’s duties (performed during ordinary working hours) includes to:

• make recommendation s to the employer regarding health and safety;
•  investigate and discuss any incidents that lead to injury, illness or death of any employee and file a report in writing to the health and safety inspector;
• keep record of all recommendations and reports to the employer and inspector;
• perform any other functions required by legislation.

Incidents in the workplace:

Any injury or death on duty must firstly be investigated and secondly reported to the Compensation Commissioner within seven days after the incident took place.

Investigating an incident

• In case of a serious incident demarcate the incident site with ribbon. If an injury occurred emergency services must be called immediately. In case of death the entire incident site must be left untouched until the police arrives.
• Gather as much information about the incident as possible. Get signed statements from eyewitnesses and ensure that all pages are initialised.
• Take as much photos as possible of the incident site.
• Determine the sequence of events that led to the incident.
• Determine the cause/s that led to the incident.
• Recommend corrective actions and improvements and hold an emergency meeting with all employees to intensify safety awareness.

Reporting an incident – employee’s duty

• Notify the employer of the incident as soon as it happened. Should notice not be given within twelve months of the incident, the employee forfeits his/her right to compensation.
• Should the employer fail to report the incident, the employee has to complete a Notice of Accident and Claim for Compensation form (W.CI.3).
• The employee must assist the employer in obtaining the medical reports from the doctor.

Reporting an incident – employer’s duty

• The employer must report an incident to the Compensation Commissioner within seven days after the incident took place, by completing Part A of the Employer’s Report of an Accident form (W.CI. 2).
• Part B of the W. CI.2 form is a carbon copy of Part A that should be handed to the employee to give to the doctor/hospital where the employee goes for treatment.
• Should the employer fail to report the incident, the doctor can report the incident by sending a copy of Part B to the Compensation Commissioner. The employer will then be subpoenaed to submit Part A.
• Medical evidence plays an important part when liability for the payment of compensation and medical expenses is considered. There are three types of reports:
• First Medical Report (W.CI. 4);
• Progress Medical Reports (W.CI. 5). When an employee receives prolonged medical treatment and is off duty as result of injuries sustained on duty, progress medical reports must be submitted on a monthly basis;
• Final Medical Report (W.CI. 5). This report should be submitted as soon as the employee’s condition is stable. The doctor must describe the impairment of function as a result of the incident, if any, to enable the Fund to assess permanent disablement, if any.
• Resumption Report (W. CI. 6) must be completed by the employer immediately after the employee has resumed work. Where the employee is booked off duty for a lengthy period, interim reports must be submitted.

A lot of administration is involved in complying with the Occupational Health and Safety Act. But by creating a safe and risk-free working environment, the employer ensures the sustainability and productivity of his/her business.

Employers in the agricultural sector are regularly faced with the situation where an employed foreign national is no longer in possession of valid work documentation.  Employers are subsequently required to take the appropriate actions to terminate the contract of employment.  But how does an employer proceed to do this legally?

The law?

Employers are prohibited from employing any illegal foreign nationals in terms of the Immigration Act 13 f 2002.  Where an employer is found guilty of contravening this act, the employer faces imprisonment of no longer than one year, for a first offence, or can be fined.

Employers should ensure that potential employees are in possession of a valid work permit/visa.  Conclude a fixed term contract with such a person, clearly stating that the contract is valid for the duration of the valid work documentation.

In the instance where the foreign national is employed on a permanent contract, or without any contract, the employer must follow a fair procedure before employment can be terminated.  Take note that South African labour legislation protects foreign nationals, even if they are not in possession of a valid work permit/visa.  This means that foreign nationals can also approach the Commission for Conciliation, Mediation and Arbitration (CCMA) and lodge a claim for unfair dismissal if the employer does not follow a fair procedure with a valid reason for termination of employment.

Valid work documentation

The employer must act as soon as he/she becomes aware of the fact that the employee’s work documentation has expired:

• inform the employee that legislation prohibits the employment of illegal foreign nationals and that it is therefore a requirement to continue employment;
• warn the employee that, should he/she fail to produce a valid work permit/visa within a reasonable time, it could possibly lead to the termination of employment.

The employer must provide the employee with the opportunity to obtain the required valid work permit/visa.  This could entail providing the employee with time off in order to obtain the documentation, and even assistance with the application.  If the employee fails to produce the required valid work permit/visa, the employer must follow the proper incapacity procedure to terminate employment and dismiss the employee.

Incapacity procedure

The incapacity procedure entails the following:

1. Issue a notice of an incapacity consultation.  This notice must set out that:

• the issue regarding the employee’s valid work permit/visa will be discussed;
• due to the fact that he/she is not in possession of the required valid documentation, he/she is operationally unable to perform his/her contractual obligation;
• should he/she fail to provide the required valid documentation, it could possibly lead to termination of employment.

2. Consult with the employee and discuss the notice in full.  Provide the employee with the opportunity to respond to the allegations of not being in possession of the required valid documentation.  Discuss any possible assistance that can be offered to the employee.  Warn the employee that, if the valid documentation is not provided, it could lead to termination of employment.

3. Should the employee fail to provide the required valid documentation, issue the employee with a notice to attend an incapacity hearing. During the hearing, provide all the relevant facts/documents/evidence to the chairperson.  The employee will also be given the opportunity to state his/her case before the chairperson.  The chairperson may make a recommendation of dismissal.

UIF

Employers must also ensure that foreign employees are registered with the Unemployment Insurance Fund (UIF).  The only exception in respect of foreign employees where the employer does not have to register the employee for UIF, is when the employee is appointed on a fixed term employment contract and the employee will return to his/her country of origin after the contract expires.

Contact the LWO for any advice or assistance!

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Many employers are unaware that in terms of the Labour Relations Act 66 of 1995, trade unions are entitled to acquire specific rights within the workplace if they are sufficiently represented. It is thus imperative for employers to take note of the following rights:

1. Trade union access to workplace

Any official or office bearer of the trade union is allowed to enter the employer’s premises in order to recruit new members, serve their members’ interests and hold meetings, or to conduct any ballot in terms of their constitution. It is important to note that trade unions are limited to meeting with their members outside normal working hours unless agreed otherwise. Employers should take care to conclude a collective agreement with the relevant trade union to give timeous notice of their intention to exercise this right i.e. 48 hours’ notice before conducting a ballot.

2. Deduction of trade union subscriptions or levies

This right confers that employers deduct the trade union’s levies from their members and pay the monies to the trade union. This right is subject to the employee’s authorisation which may be revoked by giving the necessary notice. When remitting the monies to the trade union, the employer must give such trade union:

• A list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
• Details of the amounts deducted and remitted, and the period to which the deductions relate; and
• A copy of every notice of revocation, if applicable.

3. Trade union representatives

A registered trade union, or two or more unions acting jointly, that represent the majority of employees in the workplace, are entitled to elect a trade union representative (shop steward) by its members.  The representative will be responsible for representing employees in disciplinary and grievance proceedings, as well as monitoring the employer regarding compliance with labour law and any collective agreement. The representative can also take time off to fulfil his duties and to be trained in his functions.

4. Leave for trade union activities

Any employee who is an office-bearer of a representative trade union may take reasonable leave to complete or fulfil the obligations of his or her office. The employer and trade union may agree to the number of leave days, how many leave days will be paid, and any conditions attached thereto.

5. Disclosure of information

By acquiring this right, the trade union may require the employer to disclose all relevant information in order to allow the trade union to effectively perform its functions, or when engaging in collective bargaining. It is important to note that there are restrictions on the information which may be disclosed (i.e. information which is legally privileged or information that would amount to the contravention of any law or court order if disclosed). 

Recognition of trade union rights

These listed rights aren’t automatically granted.  Instead, trade unions can seek recognition of these rights from the employer, failing which could result in a referral to the Commission for Conciliation, Mediation and Arbitration (CCMA), or even strikes. It is important to note that trade unions with adequate representation (approximately 25% of employees in the workplace) are only permitted access to the workplace and deductions of union fees, while majority trade unions (50% + 1) can obtain all the above listed rights.

Employers are lastly encouraged to seek further legal advice if approached by a trade union aiming to exercise these rights. This is essential to ensure adherence to statutory procedures and to mitigate any potential disruptions or risks in the workplace.

Contact the LWO for any advice or assistance!

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