It happens that an employer is in financial trouble, has to develop strategies to limit losses, or has to deal with a drastic change in the market that disrupts the entire business. These are good examples of situations in which retrenchment may be necessary. In a nutshell, the substantive requirement is completely justified: one cannot draw blood from a stone if the business simply does not have enough funds. But the second aspect of a legal retrenchment is the procedural requirements. When a dispute arises over retrenchment, both substantive and procedural requirements are considered.

Substantive requirements (the facts)

In terms of Section 189 of the Labour Relations Act (LRA), there are specific criteria that employers must meet before layoffs begin. These criteria include:

• Operational requirements: Employers must show that there are genuine operational reasons necessitating retrenchment. These may include economic factors such as a decrease in revenue, technological advances resulting in restructuring, or changes in market conditions.

• Selection criteria: Employers must establish fair and objective criteria for selecting employees for layoffs. This may include factors such as, among others, skills, qualifications, or years of service. Discrimination based on factors such as race, gender or trade union membership is strictly prohibited.

• Alternative measures: Employers should explore alternatives to layoffs, such as offering voluntary severance packages, implementing shorter working hours, or moving employees to other positions within the business.

Dealing with the substantive issues requires consideration and planning from employers. It is essential to assess the business’s financial situation, explore all available options, and ensure transparency and fairness throughout the process.

Procedural requirements

The procedural requirements with retrenchment refer to the steps that employers must follow when considering layoffs. Legislation sets out a detailed procedure that employers must follow, which includes:

• Notice and consultation: Employers must notify the affected employees and relevant trade unions or employee representatives of the proposed layoffs. This notice must include, among other things, the reasons for layoffs, the number of employees involved, and the expected timeline.

• Consultation process: Employers must engage in a meaningful consultation process with affected employees and their representatives. This entails that relevant information is provided, alternative measures are considered and that there is sufficient time for discussions.

• Joint decision-making: Employers and employee representatives are encouraged, where possible, to engage in joint decision-making regarding the retrenchment process. This may include: negotiating severance packages, investigating relocation opportunities, identifying training and other support for affected employees, and so on.

• Notice and severance packages: Employers must notify the affected employees in writing of the layoff, as well as provide severance packages in accordance with the Basic Conditions of Employment Act. The notice period and severance packages are determined based on the employee’s years of service: one week’s wages for each completed year of service.

By following the prescribed procedural steps, employers can ensure that they comply with legislation and reduce the risk of disputes. Effective communication, transparency and empathy are essential components of the procedural aspect of layoffs. Retrenchment is a complex and challenging process for both employers and employees. By understanding and addressing both the substantive and procedural issues set out in Section 189 of the LRA, employers can deal with retrenchment in a fair and responsible manner.

Contact the LWO for any advice or assistance!

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Unity in the workplace is one of the many requirements that are essential to maintaining a successful business. Employees of a business are considered to be a team that should work together to achieve the business’s goals and overcome challenges. This implies that employees should get along with each other at least to such an extent that the employer’s operations are not negatively affected by conflict between employees and/or with the employer’s customers.

A diverse environment

The workplace is a very diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethics, opinions, communication skills etc.  Not everyone will always get along and the potential for conflict and disagreement in the workplace is always a risk. In extreme cases, these conflicts and clashes can lead to incompatibility.

Incompatibility in the context of the workplace and labour law is not defined by the Labour Relations Act or any other South African legislation. It is therefore a difficult concept to define with certainty. Incompatibility can be due to, among other things, an employee’s attitude, temperament, unique way of working, temper, impatience, interference, manipulation, lack of communication skills, as well as the employee’s behaviour in general that interferes with the effectiveness of the employer’s operations.

Case law

As incompatibility is not defined by legislation it is necessary to look to case law for guidance when dealing with cases of incompatibility. According to case law, an employer is entitled to insist on a working environment that is peaceful. It is an implied condition of an employee’s employment contract that the employee will not conduct himself or herself in a way that could lead to disagreement and conflict in the workplace.

However, the reality is that, just as in the case of any other relationship, the possibility exists that the relationship between the employer and employee or between a specific employee and fellow employees, conflict may arise in the form of incompatibility.

The concept of incompatibility can be seen as a form of incompetence: the employee does not fit in with the employer/business’s culture, or just does not get along with management, fellow employees or customers.

How should the employer deal with this?

A distinction must first be made between incompatibility and misconduct. Misconduct in the workplace is addressed by applying discipline, usually in the form of written warnings. Incompatibility cannot be addressed through disciplinary measures because the incompatibility is not necessarily intentional or attributable to misconduct.

When an employee’s behaviour leads to incompatibility, the employer must undertake a consultation and counselling process. It is extremely important to take into account that even though incompatibility is not specifically defined in the Labour Relations Act, the dismissal of an employee can ever only take place after a procedurally and substantively fair process was held.

The employee must therefore at all times be afforded the opportunity to state his/her side. The employer also has the obligation to make reasonable efforts to try to resolve or at least improve the incompatibility, and to offer the employee the opportunity to try to change or adapt. Sometimes incompatibility can be resolved by, for example, moving the employee to another department or offering the employee counselling.

Take note

Dismissal must always be considered as a last resort and will only be appropriate if there are no other reasonable alternatives available, and the relationship between the employer and employee, or between the employee and fellow employees, has broken down beyond repair.

It is essential to thoroughly document the process followed in trying to resolve incompatibility. This protects the employer in case the employee is dismissed after the process is concluded, in that the record of this process is available to prove that the dismissal was fair.

Contact the LWO for any advice or assistance!

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Statutory severance pay plays a crucial role in employment relations in South Africa, particularly when employment is terminated due to operational requirements.  It is essential for employers to be informed regarding the legal framework that governs severance pay, and specifically Section 41 of the Basic Conditions of Employment Act (BCEA), as it holds significant implications for both employers and employees.

Statutory framework

Statutory severance pay is not an arbitrary gesture by employers; instead, it is firmly grounded in the legal provisions of the BCEA. It is imperative to note that outside the statutory framework provided by the BCEA, there is no general right to severance pay. Section 41 of the BCEA delineates the circumstances under which severance pay becomes mandatory, primarily revolving around dismissals due to operational requirements.

Conditions for STATUTORY severance pay

According to Section 41 of the BCEA, employers are obligated to pay severance pay to employees dismissed for reasons based on operational requirements. The formula for calculating severance pay is stipulated in the section, requiring employers to provide at least one week’s remuneration for each completed continuous year of service.

Eligibility criteria

An important criterion for eligibility is that an employee must have completed at least one year of uninterrupted service with the employer. Once this condition is met, the employee becomes entitled to statutory severance pay, calculated at the rate of one week’s remuneration for each completed year of service. It is crucial to emphasise that an employee becomes eligible for statutory severance pay only after the retrenchment process has been concluded.

Bargaining Council and main collective agreements

In cases where an employee is a member of a bargaining council, the severance package payable may be stipulated by the Bargaining Council and main collective agreements. This adds an additional layer of complexity, as the specific terms may vary based on the industry and agreements in place.

Operational requirements

Operational requirements leading to severance pay are defined broadly and encompass terminations resulting from the employer’s economic, technological, structural, or similar needs. These are often referred to as “no-fault” dismissals, indicating that they are unrelated to the employee’s performance but are a result of the business’s operational necessities.

Limitations on severance pay entitlements

While Section 41 of the BCEA outlines specific scenarios where severance pay is mandatory, it’s essential to understand that these provisions are not exhaustive. There may be other scenarios in which severance pay entitlements arise.

In conclusion, statutory severance pay in South Africa is intricately linked to the legal framework provided by the BCEA, with Section 41 specifically addressing dismissals due to operational requirements. Employers must be well-informed about the eligibility criteria, calculation methods, and additional considerations such as Bargaining Council agreements. It is crucial for both employers and employees to navigate these legal differences to ensure fair and compliant practices in the termination of employment relationships. While the idea of receiving a “reward” for years of service is not broadly applicable in South African law, statutory severance pay serves as a protective measure, providing financial support to employees facing dismissal due to operational requirements.

Taking proactive steps to ensure your business adheres to relevant legislation in your sector is paramount for sustained success and legal compliance.

Contact the LWO for any advice or assistance!

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Ensuring compliance with labour law is crucial for both employers and employees to foster fair and equitable working conditions. In South Africa, the Department of Employment and Labour achieves this sentiment through their Inspection and Enforcement Service (IES). The Department’s inspectors play a pivotal role in monitoring and enforcing labour legislation and regulations.

Many employers are concerned about security due to people falsely posing as inspectors from the Department of Employment and Labour in order to gain access to the premises.  Insist on positive identification of the person who introduces him-/herself as an inspector and first verify the information before giving the person access to your premises.  Also remember that no inspector may charge a fee for the inspection, investigation, advice or any assistance.  The Department of Employment and Labour does not delegate any third party to conduct an inspection on behalf of the Department – none of the Department’s powers may therefore be delegated.  No inspector may sell posters, products, or information.

Key aspects of identification for labour inspectors

The Department of Employment and Labour inspectors will always carry official identification:

• Official appointment certificate: In terms of Chapter 10 of the Basic Conditions of Employment Act, 75 of 1997 (BCEA), Section 63(3) provides that the Minister of Employment and Labour must provide each labour inspector with a signed appointment certificate stating the following: 

• • that the person has been appointed as a labour inspector,
  • the inspector’s name, serial number, identification number, signature, and the Department’s logo,
  • which legislation that labour inspector may monitor and enforce, and
  • which of the functions of a labour inspector that person may perform.

• Obligation to produce identification: The BCEA creates a further obligation on labour inspectors to produce his/her official appointment certificate upon request. Section 66(3)(a) states that labour inspectors must produce the certificate when he/she is requested to do so.

• Two forms of identification: The inspector’s appointment certificate can take two forms, the one being a certificate document (BCEA Annexure 14A) and the other being an inspector card (BCEA Annexure 14B).  It is noteworthy that in terms of Annexure 14A the inspector’s card (Annexure 14B) must contain the inspector’s photo and signature, as well as the signature of the provincial executive manager, for the office in which the inspector is based as well as the serial number which has been allocated to the inspector by the Department’s head office.

Labour inspectors’ right to conduct inspections

In terms of BCEA Section 65(1) a labour inspector may, without warrant or notice, at any reasonable time, enter any workplace or any other place where an employer carries on business or keeps employment records, that is not a home, in order to enforce compliance with labour law.

Labour law further places a duty on persons to co-operate with and assist labour inspectors. Section 67(1) and 67(2) of the BCEA states that any person who is questioned by a labour inspector in terms of Section 66 must answer all relevant questions lawfully put to that person, truthfully and to the best of his/her ability.  Employers and employees must provide any facility and assistance at a workplace that is reasonably required by a labour inspector to perform the labour inspector’s functions effectively.

• Scheduled inspections: Labour inspectors often conduct scheduled inspections, providing advance notice to employers. This allows businesses to prepare necessary documentation, such as employment contracts, payroll records, and health and safety protocols. Being aware of scheduled inspections helps in maintaining transparency and efficiency.

• Random visits: In addition to scheduled inspections, inspectors may also conduct unannounced or random visits to workplaces. Employers should be prepared for such surprise visits and maintain ongoing compliance with labour laws to avoid potential penalties.

A labour inspector is empowered by legislation to arrive at a workplace with or without notice to conduct an inspection. The employer is similarly obligated to answer any questions put to him/her by the labour inspector and to provide the inspector with any assistance that he/she may require to perform his/her functions effectively.  South African labour legislation is extensive and non-negotiable.  Non-compliance can have a serious financial impact, putting your business at unnecessary risk.

Contact the LWO for any advice or assistance!

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Do’s and donts when your employee is in jail:

• No work – no pay! An employer is not obliged to pay an employee who does not attend work. This is based on the principle of no work no pay.

• Work must go on, ensure you have the right contract in place. The employer is also entitled to employ another employee on a fixed term basis until the employer has more clarity regarding the situation.

• Do I follow a desertion protocol? No, desertion constitutes absence from the workplace with the intention of not returning to work and is a breach of contract by the employee. The intention not to return to work distinguishes “desertion” from “absence without leave”, whereby an employee is absent from work but intends returning. In cases where an employee is in jail, the intention to return to work is likely present and accordingly the desertion protocol would not be advisable in all cases. Circumstances of each case play a role, an employer who dismisses an employee on the basis of desertion, with knowledge that the employee is being held in police custody, would be at risk of a finding of unfair dismissal.

What do I need to do?

According to Section 188 of the Labour Relations Act, an employer is entitled to dismiss an employee for reasons of incapacity. When an employee is being held in custody and is incapable of performing duties in terms of the employment contract, his/her services may be terminated due to incapacity, after a fair procedure was followed.

An employer cannot dismiss an employee for being in jail, without following a fair incapacity procedure. Various factors need to be taken into account with regards to the reasoning why the employee should not be allowed to resume duties after the jail term.
Contact your LWO legal advisor to ensure you follow both a substantive and procedurally fair procedure.

In today’s fast-paced business world, relationships between employers and employees can sometimes turn sour. When former employees pose threats or engage in harassment, employers need to take action to protect their assets, their employees, and their reputation. One crucial legal tool in such situations is obtaining a protection order against a former employee.

UNDERSTANDING PROTECTION ORDERS

Protection orders, commonly known as restraining orders, are court-issued documents that legally require an individual to maintain a specific distance from a designated person or location. These orders are instrumental in safeguarding victims from various forms of harassment, including physical violence, stalking, or intimidation. In the context of former employees, protection orders are often sought when they pose a threat to the organisation, its employees, or its clients.

PROTECTION ORDERS AGAINST FORMER EMPLOYEES

Protection orders against former employees are typically pursued when a company has justifiable concerns about their former employee’s behaviour. Some common examples include:

• Threats of violence or harm: When a former employee has made explicit threats against the business, its employees, or its clients/customers/members, it is essential to take such threats seriously.
• Stalking and harassment: Former employees may engage in stalking or harassment activities, including continuous phone calls, unwanted emails, or showing up at the business premises or employees’ homes.
• Violation of non-disclosure agreements or intellectual property theft: If a former employee is suspected of stealing confidential information or breaching non-disclosure agreements, a protection order can help to prevent further damage.
• Aggrieved former employees: Dismissed employees who are unhappy about their termination may resort to damaging the business’ reputation or spreading false information. Protection orders can restrict them from making defamatory statements.

PROCESS OF OBTAINING A PROTECTION ORDER

btaining a protection order against a former employee is a legal process that should be taken seriously. The following steps are typically involved:

• Consult with an attorney: The first step in seeking a protection order is to consult with an attorney who specialises in employment law or civil litigation. An attorney can help you assess the situation, gather evidence, and determine whether pursuing a protection order is the appropriate course of action.
• Gather evidence: Gathering evidence is always crucial in obtaining a protection order. This may include written threats, emails, text messages, voicemails, or any other documentation that demonstrates the former employee’s harmful intent.
• File a petition: Your attorney will help you file a petition in the appropriate court, detailing the reasons for seeking a protection order and providing evidence to support your case.
• Attend a hearing: Once the petition has been filed, a court hearing will be scheduled to attend on a specific date. At the court hearing, both parties will have an opportunity to present their cases. The judge will evaluate the evidence and determine whether a protection order is warranted.
• Issuing of the protection order: If the judge finds that the former employee poses a legitimate threat, they will issue a protection order that outlines the specific terms and conditions. This order can be temporary or permanent, depending on the circumstances.
• Enforcement and compliance: Once a protection order is granted, it is essential to ensure that it is properly enforced. Violations of the order can lead to severe legal consequences for the former employee, such as arrest.

Protection orders against former employees serve as a vital legal mechanism to safeguard businesses, their employees, and their interests from potential harm, harassment, and damage. When a former employee’s behaviour raises concerns, it is imperative to consult with legal counsel and follow the appropriate steps to obtain a protection order. By taking action, businesses can mitigate the risks associated with aggrieved former employees and ensure the safety and security of their operations.