The specifics:

The employer is not expected to remunerate the employee when he/she requests time off to visit the clinic to obtain medication. This also complies in cases of routine visits to the clinic or doctor. When the employer does grant paid sick leave in these instances, it is solely at the employer’s discretion. It can be viewed as an additional benefit. The employer should however take care to act consistently in granting benefits towards all employees.

Employees must take note that the misuse of sick leave is a disciplinary offence. Also, the offence could lead to dismissal due to an irreparable breach in the trust relationship between the employer and the employee. In the event there is a breach in trust between the employer and the employee the employment relationship cannot continue.

Employers are under the impression that persons who receive old age pension are not allowed to work, or that they forfeit UIF benefits if they do. There are certain specification to receiving certain grants.

People who are 60 years or older can qualify for a grant previously named the ‘old age pension’. To qualify for this grant, the person must:

• be a South African citizen or permanent resident;
• live in South Africa;
• cannot receive any other social grant for him-/herself;
• not be cared for in a state institution;
• cannot earn more than R69 000 per year or own assets worth more than R990 000 if single;
•  not have a combined income of more than R138 000 per year or have assets worth more than R1 980 000 if married.

Although employers are under no obligation to transport farm workers, many farmers do provide transport. Farm workers can find it difficult to get to work because of the remote location of the farm, the lack of public transport, or the level of poverty in the rural area.

On 11 May 2017 it became illegal to transport school children in the goods compartment of any vehicle (for example the back of a bakkie). This is mainly seen as a big stride in the right direction with regards to the safety of our children on public roads. According to Regulation 50 of the National Road Traffic Regulations, no person is allowed to transport any other person in the goods compartment (back of bakkie/trailer) of a motor vehicle for reward. However there is good news for farmers who transport their employees. This regulation does not apply to a vehicle that complies with the provisions of the National Land Transport Act.

What is the risk of transporting farm workers?

• The employer may be held liable for damages (injury/death) caused by negligence while transporting farm workers, if the negligence can be proven.
• An accident that results in damage to property/injury to farm workers will affect the operations and productivity of the farm.

What does the law say regarding transport?

• The employer must be registered in terms of the Compensation of Occupational Injuries and Diseases Act (COIDA);
• When employees are transported free of charge in a vehicle belonging to the employer and is driven by a designated employee, it is seen as during the course of employment in terms of COIDA.
• When workers are transported on a public road, The National Road Traffic Act states as follows:
  • The driver must have a valid driver’s licence;
  • The vehicle must be in a safe and roadworthy condition;
  • The vehicle must be registered and licenced.
• The license will state the circumstances under which a farm worker may be transported on a bakkie/truck
  • The part of the vehicle in which the workers are transported must be enclosed. Specifically, to a height of at least 350mm above the surface on which the workers are seated and at least 900mm above the surface on which the people are standing;
  • The material must be strong enough to prevent a worker falling from the vehicle;
  • The workers may not be transported with other goods (except their personal belongings), except when it is partitioned from them; and
  • No part of the worker’s body may protrude from the vehicle;
  • A trailer must have working lights and seven retro-reflectors.

When an employer provides transport to farm workers the minimum standards of the National Traffic Act must be complied with. If the vehicle enters a public road the rules of the road apply. Every precaution must be taken to minimize the risk when the workers are transported on a farm road.

Maintaining discipline in the workplace is vital to maintain productivity, as well as a positive working environment. Just as an employee has certain rights, the employer has the right to take disciplinary action against an employee who is in contravention of the employer’s rules, policies or procedures. It is however the employer’s responsibility to take action and enforce discipline.

When it comes to taking disciplinary action, the focus is on progressive discipline. Progressive discipline aims to take reasonable steps in order to change or correct the behavior of employees, through the systematical issuing of warnings, as well as holding consultations.

The issuing of warnings in the workplace must be in line with the employer’s disciplinary code. A disciplinary code is vital to ensure that there are clear rules and procedures in the workplace to be followed by employees. 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. Warnings can range from verbal to a written, serious written and a final written warning and must be fair, as well as in line with the seriousness of the offence.

When should I issue a warning?

It is important to handle each case on its own merits, keeping in mind that employer’s disciplinary code and the seriousness of the offence. Employers must note that consistency with regards to taking disciplinary action must always be maintained to avoid discrimination in the workplace.

in not so serious offences, the employer can start with holding a consultation with the employee. During this consultation, the employer sets out his/her concerns with regards to the employee’s actions. If the employee then does not align his/her actions with the employer’s fixed standard in the workplace, the employer can proceed with a more serious sanction in terms of issuing a warning.

How do I issue a warning?

Prior to imposing any sanction, including a warning, the employer must consult with the employee. This is done to prove on a balance of probability that the employee is guilty. In this consultation, the seriousness of the offence must also be determined. The employee must also be given the opportunity to present more information and explain the situation from his/her point of view. We advise employers to have a witness present during this consultation and to keep a detailed record of all disciplinary action taken in the workplace.

What information must the warning include?

• The identity of both parties
• The nature and the date of the offence
• The validity period of the warning
• The action that is required of the employee to rectify the situation must be clearly stated
• Clear statement of the consequences should the employee fail to rectify the situation

What if the employee refuses to sign the warning?

Even if the employee refuses to sign the warning, it is still valid. Make sure that the witness present in the consultation signs the warning. This confirms that the warning was issued and explained to the employee.

Unfair dismissal and/or unfair disciplinary action is the cause of most disputes referred to the CCMA. A commissioner at the CCMA will always take the following in consideration:

• 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 the sanction taken against the employee fair in terms of seriousness of the offence?

We always advise employers to keep the above in mind and be proactive. Employers must ensure that there are clear rules in the workplace and that employees are aware of these rules. The same counts for policies and procedures in the workplace.

Where does South Africa stand?

The South African labour market is rightly regarded as highly regulated. This view is affirmed in the World Economic Forum’s Global Competitiveness Report of 2016/2017. The most problematic factor for doing business in South Africa in general, is the restrictive labour relations.

The report rates South Africa as follows:

• 135th out of 138 countries in terms of hiring and firing practices.
• 98th out of 138 countries in terms of pay and productivity.
• 138th out of 138 countries in terms of cooperation in labour-employer relations.

It is clearly crucial for every employer to continuously comply with labour legislation.

Clear rules and guidelines

Friction and misunderstandings in the workplace can be kept to an minimum by enforcing clear rules and guidelines. This will in turn promote not only productivity but also a positive working environment. The employer must therefore have clear rules and guidelines in the workplace. The employer must also ensure that every employee is aware of  and understand these rules and guidelines.

Employers must have a disciplinary code that lists offences with the appropriate sanctions to use when rules and procedures are not followed. There are different types of misconduct in the workplace, ranging from minor to more serious offences. The employee’s type of work and responsibilities and (possible) consequences of the offence will influence the seriousness of the offence. The employer must also consider how the employee-employer trust relationship is influenced by the offence. It is important to differentiate between offences due to negligence or with intent. The cause of the offence has a definite impact on the seriousness of the offence and must therefor be identified and investigated.

Take note:

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

Discipline is the foundation on which any workplace functions. Enforcing discipline properly will result in more productive and less troubling circumstances in the workplace. An employer cannot dismiss an employee under any circumstances, even with valid reason, without holding a disciplinary hearing. This will ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.

Steps to follow when enforcing discipline

1. Investigate

2. Gather evidence

3. Consult the employee

4. Determine the sanction

5. 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.

Necessary preparation for a disciplinary hearing

We advise employers to provide the employee with 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow the employee to prepare for the hearing. Take care that all documentation (notice to attend and a procedural application form) contains all the necessary information required by legislation.

During the hearing, the following role players are involved: the employee, the employer and the chairperson. The chairperson is an impartial third party. The chairperson is responsible for keeping the hearing in good order and making a finding of guilty or not guilty based on presented evidence.

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 importance of 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 lack of evidence presented.

We advise employers to follow these steps to ensure they are prepared for a disciplinary hearing:

• Formulate the charges and make sure it contains the correct facts.
• Choose a proficient representative to argue the case on behalf of the employer, if necessary.
• Decide on the evidence and/or witnesses to use during the hearing and order it chronologically.
• Think of possible defence that the employee can use during the hearing and prepare questions to cross examine the employee.
• Prepare closing arguments in which the evidence is summarised and argued why the employee is guilty of allegations.
• Prepare aggravating factors to support the appropriate sanction.

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