What are the options?

The moment an employer-employee relationship is established, there are strict legal requirements that the employer must comply with, irrespective of the number of employees. To comply with these requirements, the employer can consider mainly six options:

• Internal:
  • Employer handles it personally
  • Employer creates the capacity internally by employing a legal expert (labour law) full time.

• Outsource to a service provider:
  • Local attorney
  • Labour consultant
  • Unregistered employers’ organisation
  • Employers’ organisation which is registered with the Department of Labour

Employers must clearly realise that there are definite differences between these options that can have major implications with specific reference to cost, specialist knowledge, spectrum of service, infrastructure and availability, etc.

When outsourcing, the following criteria must be considered:

• Can the institution represent employers at the CCMA, Bargaining Councils and Labour Court?
  • Take note that only an employers’ organisation that is registered with the Department of Labour has the right to appear in these forums.
• Does the institution specialise in labour law? Does the institution have appropriate experience?
• Does the institution provide specialist services on the employers’ premises?
• Does the institution offer a cost-effective solution?
• Apart form disciplinary hearings, CCMA matters, restructuring and other procedures, compliance with labour law holds a strong administrative component for employers, as well as continuous advice to resolve disputes in the workplace as quickly as possible. The institution must also offer a cost-effective solution for these typical daily challenges that commonly occur in the workplace.
• How long has the institution been in business and how is business continuity ensured?
  • Is the employer at the mercy of the institution’s availability and operational functioning, or can the institution guarantee assistance and service according to the employer’s needs?
• Does the employer’s needs drive the institution in terms of service delivery?
• Does the institution have a proactive approach?
  • Does the institution mainly provide assistance when there is already a dispute in the workplace, or does the institution aim to create an organised working environment complaint with labour law, and proactively manage and where possible prevent disputes?

What can go wrong?

An employee can refer a dispute in the workplace at any time to the CCMA for mediation. The vast majority of cases found in favour of the employee, is due to the employer who did not follow the correct procedure. This of course has huge financial implications for the employer. Possible orders against the employer at the CCMA typically amount to 3-12 months of the employee’s salary and/or reinstatement. At the Labour Court, it can amount to 3-24 months of the employee’s salary and/or reinstatement. Employers can also face severe fines and even jail time by the Department of Labour in cases where the employer does not comply with labour law.

There are mainly three types of incidents whereby it is known that the employer does not run his in line with labour law. These incidents are usually beyond the employer’s control and includes:

• Inspection by the Department of Labour;
• Injury on duty;
• An employee that refers a dispute to the CCMA or Department of Labour.

It is clear that the employer should rather be proactive in finding a solution and ensure that he continuously complies with labour law in order to protect his business and rights as an employer.

Dismissal in accordance with the Labour Relations Act will be deemed automatically unfair if the employer dismisses the employee due to:

• the employee exercising his/her right on freedom of association, or
• the employee’s refusal to accept a claim of common interest between the employer and the employee. An amendment to the employee’s conditions of employment will qualify as a claim of common interest by the employer.

Amendments to conditions of employment are often required due to a change in the employer’s operational requirements. When the employment relationship is terminated due to these operational requirements, it must be preceded by a retrenchment procedure.

Retrenchment is a no-fault-dismissal as the employee did nothing wrong and the dismissal is purely based on the operational requirements. During the retrenchment process, it is the duty of the employer and the employee to consider all other alternatives to prevent dismissal.

What should employers know?

If the amendment to the conditions of employment is a fair and meaningful alternative to prevent the dismissal of employees, the employer and employee must consider this restructuring and amendment of conditions of employment. If the fair and meaningful alternative is rejected by the employee, the employer has the right to implement the restructuring and amendment of the conditions of employment due to operational requirements.

An employee that hereafter rejects the amended conditions of employment can be dismissed due to operational requirements of the employer. The dismissal will not be classified as an automatic unfair dismissal, but as dismissal due to operational requirements. The employer must be able to prove that a real operational need existed that required that amendment to the conditions of employment and that there was no reasonable alternative to dismissal. It is of utmost importance that the employer can also prove that a fair consultation process was followed.

Contact the LWO for assistance with this process!  We make labour law easy and simple. 

Preparing for a disciplinary hearing is crucial. Employers must focus on preparing thoroughly for all disciplinary hearings.

Keep the following in mind when preparing for a disciplinary hearing:

The CCMA was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA), Act 66 of 1995. It is aimed at promoting fair practices and resolving labour disputes within the working environment. An employee can refer a dispute to the CCMA on account of dismissal, wages and working conditions, unfair labour practises, workplace changes and discrimination. Most cases referred to the CCMA pertain to unfair dismissal. In general arbitration awards in favour of the employees. This is due to incorrect procedures on the employer’s behalf.

Be proactive with these top tips and ensure that the consequences of a CCMA case do not mean the end of your business:

Clear rules and guidelines

Progressive discipline

Remember the CCMA mainly looks at two elements when an employee refers a dispute:

Substantive fairness

Substantive fairness refers to a valid and fair reason for the sanction imposed. The employer must be able to prove the following on a balance of probability:

• Was there a rule in the workplace?
• Was the rule reasonable?
• Was the employee aware of the rule?
• Did the employee break the rule?
• Did the employer apply progressive discipline (consultation and warnings, according to the offence)?
• Did the employer apply discipline consistently?
• Did the misconduct justify the sanction applied?

Procedural fairness

Procedural fairness refers to the required legal procedure before imposing a sanction. An employer cannot dismiss an employee under any circumstances, even with valid reason, without holding a disciplinary hearing. This ensures that a fair procedure is followed.

The employer must be able to prove the following:

• A disciplinary hearing was held.
• The employee was notified in writing at least 48 hours (excluding weekends and public holidays) prior to the hearing to prepare for the hearing.
• All documentation (notice to attend the hearing and a procedural application form) contained all the necessary information required by legislation.
• The chairman was informed and unbiased.
• The accused employee was given every chance to prepare for and defend his/her case.
• Aggravating and mitigating circumstances were taken into account.
• The outcome of the dismissal was based on the facts presented during the hearing.
• The sanction was appropriate to the offence.
• The hearing and outcome was recorded in writing by the chairperson.
• The employee received the outcome in writing.

Labour risk is a huge business risk. Labour risk must be managed proactively to ensure the sustainability and profitability of your business.Not following the correct procedures can lead to dire consequences with huge financial impact.

Compliance with legislation can be intimidating, especially for business owners without a legal background. Labour law is not negotiable and compliance requires specialist knowledge. This poses a business risk to the employer. To comply with legislation is not a luxury, it is a must and can be overwhelming and extremely time consuming. Employers should however realise that legislation can also be used to protect your business and minimize risk by proactively positioning the business with regards to possible future disputes.

The labour environment in South Africa is highly regulated. This creates an extremely challenging working environment for employers. Applicable labour legislation in the agricultural sector can be categorised as follows:

• Procedural legislation
  • Labour Relations Act
• Compliance legislation
  • Basic Conditions of Employment Act
  • Bargaining Council Main Collective Agreement
  • Sectoral Determinations if applicable to the industry
• Regulatory legislation
  • Occupational Health and Safety
  • Employment Equity
  • Compensation of Occupational Injury and Diseases Act
  • Unemployment Insurance Act
  • Skills Development Act

Labour law prescribes various procedures, requirements for compliance and other regulations for the workplace. Instead of just complying with a specific requirement, for example ticking the box “employment contract”, make sure you have the best possible employment contract for your business. Every business is unique and it is vital that the employment contract reflects this unique employment relationship. Yet it must also put the employer in the best possible position going forward for any possible disputes that may arise.

Never settle for a generic employment contract, as the employment contract is the most important document in the workplace. It defines the terms and conditions of employment as agreed upon between parties and regulates the employment relationship. When drafting an employment contract, the employer must take care to ensure that the contract complies with all applicable labour legislation depending on the specific industry. Take note that no part of the employment contract may be amended unilaterally and without consultation with the employee.

Although legislation specifies requirements that the employer must comply with, there are many additional aspects of the employment relationship that the parties must come to an agreement on and is the employment contract the ideal vehicle to do so. Furthermore, the employer has many rights, but also the responsibility to claim these rights and enforce them.

Through the employment contract the employer can confirm these rights and agree on the following:

• Time periods – probation period, retirement age, short time, lunch breaks, etc.
• Consent – medical testing, alcohol and drug testing, cameras in the workplace, etc.
• Consent – deductions for damages, training, etc.
• Reference to policies, procedures and a disciplinary code that describes rules, sanctions and procedures the employer and the employee must adhere to.
• The employee’s fiduciary duty (to always act in the best interest of the employer)
• The employer’s fixed standard in the workplace with regards to quantity and quality – this is vital to manage productivity in the workplace.

In conclusion

To comply with labour law is not negotiable but doesn’t have to be a headache. Employers can use labour law to their advantage to protect their businesses by including proactive clauses in the employment contract to eliminate possible future disputes and put the employer in the best position with regards to the employment relationship going forward.

Poor work performance is an ever increasing challenge in the workplace. Poor work  performance refers to an employee failing to reach and maintain the employer’s work performance standards in terms of quality and quantity. The Labour Relations Act, Act 66 of 1995 (“LRA”) sets clear guidelines of how employers should deal with poor work performance in Schedule 8, Code of Good Practice: Dismissal. There is clear differentiation between dismissal for misconduct and dismissal for incapacity. Poor work performance falls under incapacity, which can be due to ill health or poor work performance. It is vital that in cases of poor work performance the employer should follow the correct procedure in handling this matter.

All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. Should the employee fail in this duty, despite assistance to reach the required standards, he/she is said to be “incapable”. The employer now has the right to dismiss the employee.

Please note that the employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair. 

Poor work performance procedure

Poor work performance procedure

First consultation

The employer must invite the employee to a consultation to discuss his/her unsatisfactory work performance. During the consultation it must be established if the problem is indeed poor performance and not misconduct. Take note to talk about the following:

• the required standard of work performance in the workplace;
• duties required of the employee;
• the reasons why the employer is of the opinion that the employee is failing to meet these standards; and
• provide the employee with a clear indication of what will happen if the required standard of work performance is not met.

During the consultation the employee must be afforded an opportunity to state his/her case. The employee must then explain why he/she is not meeting the required standards  During all consultations the employee has the right to be heard and may be assisted by a trade union representative or a fellow employee.

Investigation

Implementation of the solution

Re-evaluation and second consultation

Sanction

If the employee still fails to meet the required standard, a disciplinary hearing must be held where the employee has the opportunity to state his/her case. It is important to establish during this hearing whether dismissal is the appropriate sanction and if any alternatives exist.

Should the employee refer a case of unfair dismissal to the CCMA, the commissioner will consider the following in determining whether the dismissal was unfair:

• Did the employee fail to meet the performance standards and if so:
  • was the employee aware, or could reasonably be expected to have been aware, of the required performance standard;
  • was the employee given a fair opportunity to meet the required performance standard;
  • is dismissal an appropriate sanction for not meeting the required performance standard.

Solution