Basic thoughts regarding compliance with the Occupational Health and Safety Act (OHSA) include:

• To comply with legislation is not negotiable and non-compliance can be costly in the general running of a business.

• In accordance with legislation as well as ISO 45001, employers can be sued in their personal and business capacity and be prosecuted both civilly and criminally. A conviction could lead to huge fines and even the closure of a business until it is fully compliant.

• Compliance contributes to productivity through employee satisfaction and buy-in.

It is important that employers get expert guidance to comply with the OHSA, especially when your business industry is subject to additional regulations.

What are the hazards?

The practical approach:

• Identify the activities performed in each area of your business. Each activity would have safety related inputs, e.g. electricity, equipment, etc.

• Assessing the risk could be done by giving a rating on a scale of 1 (low risk) to 5 (worst), scoring the following: severity, possibility of happening and who is exposed to the risk.

• The management and control of the risks would require a process of elimination, substitution, engineering solutions, administrative controls, training with provision of safety equipment being the last resort.

Definitions

• “Hazard”: the object which could cause potential harm

• “Risk”: what could happen should things go wrong, e.g. injury, health risks, etc.

The LWO has an agreement in collaboration with Beehive OH&S to assist LWO members with regards to the OHSA.  Contact Leo van der Walt for more information at 072 594 5989, info@beehiveohs.co.za or   www.beehiveohs.co.za.

However, the Code of Good Practice fails to address a few important points such as whether:

• breaks for expressing will be paid or unpaid;
• the time period how long an employer should allow the employee to take these breaks to express breastmilk;  and
• whether the employer should make provision for the storing and refrigeration of expressed breastmilk.

It is important that the employer and employee are on the same page.  Communication plays a vital role and employers must take care to consult with employees regarding the above and agree on the way forward.  Culture, gender, values, beliefs, etc. of all parties should also be taken into consideration in the communication process to ensure effective communication.

The Code of Good Practice serves as a guideline for employers to follow.  However, by creating a supportive environment for breastfeeding mothers in the workplace, the employer promotes the health of employees and their babies. 

What is conciliation?

Watch out for this pothole:

One of the biggest mistakes employers can make is not attending a conciliation. If the employer does not show up for conciliation, the commissioner will issue a certificate indicating that the dispute is unresolved. The case will then be referred for arbitration. It is important to remember that when a case is placed for Con/Arb and no objection was made against Con/Arb, the commissioner can immediately proceed with arbitration in the absence of the employer and the employer can face an arbitration order.

What is arbitration?

Watch out for this pothole:

One of the biggest mistakes is not showing up for the arbitration. If the employer does not attend the arbitration, the process will continue in his absence. The end result is that the CCMA will rule in favour of the employee as there were no facts presented on behalf of the employer. A further mistake is not to prepare thoroughly – each case is only as good as its facts and evidence. Consult properly with your LWO representative, prepare witnesses for questioning and make sure all documentary evidence is fully contained in the bundle.

Possible orders against the employer:

• CCMA: 3-12 months of the employee’s salary and/or re-instatement
• Labour Court: 3-24 months of the employee’s salary and/or re-instatement

(The salary is determined in accordance with the salary as on the date of dismissal.)

• The commissioner and all the other parties agree to it.
• The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation.
• If a party wishes to make use of a lawyer, the applicant must bring an application for legal representation in terms of rule 25 of the CCMA rules.

Secret recordings of ‘sensitive’ discussions in the workplace – an interesting bargaining council case!

It is very important to distinguish between whether these secret recordings are lawful and allowed, and if they are permissible.

Although it may be lawful to secretly record a conversation, the true test is whether the act of recording a private conversation in secret, without informing the employer that it is being done, is a form of misconduct, even if this is legal under RICA.

This creates tension between the right of any person to record a conversation to which he is part of and the well-accepted principle of mutual trust between an employee and employer.

In the Bargaining Council proceedings of Waddell and Sandown Motor Holdings (Pty) Ltd (2021) 42 ILJ 2749 (MIBCO), the arbitrator had to decide whether a dismissal was fair where an employee secretly recorded negotiations between her and her employer. During these negotiations sensitive commercial information was exchanged during these conversations, which would not have been imparted by the employer’s managers had they known that their conversations were being recorded. When the employee’s recordings came to light, the employee was charged with misconduct, subsequently found guilty of misconduct and dismissed. The employee then referred a dismissal dispute to the Motor Industry Bargaining Council (MIBCO).

In the arbitration proceedings before a MIBCO arbitrator, the employee contended that RICA was applicable and that the recording was lawful. The arbitrator agreed that the recording was lawful, but found that, given the content and nature of the negotiations between the parties, the employee’s conduct had been manipulative and was in breach of her duty of good faith. The arbitrator therefore found that the employee’s conduct constituted serious misconduct, justifying dismissal.

It is therefore always important for an employee to consider what the consequences of their actions could be. By making secret recordings in the workplace might just lead to a dismissal

Benefits of a company policy which prohibits unauthorised or secret recording:

• It dissuades employees from secretly recording conversations
• It encourages trust and candid conversation
• If knowledge of the recording occurs only after litigation has commenced, the employer may be able to use the after-acquired evidence doctrine to stem its exposure from the point when the breach of company policy was uncovered

Since the employment relationship is built on trust, secretly recording the employer without informing the employer thereof or asking for consent, even if this is legal in terms of RICA, will ultimately have a negative impact on the trust relationship. If there is a policy or disciplinary code that prohibits secret recordings in the workplace, then the making of such recordings will most likely impair the trust relationship. The circumstances under which the employee made these secret recordings will determine whether it can be considered misconduct, and what disciplinary steps can be taken.

Contact the LWO at 086 110 1828 with any labour law queries – we are available 24/7. Members can also send an email to info@lwo.co.za for assistance and support.

Disclaimer: Take note that the information and material published is not legal advice but published for general information purposes. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained on this platform. For legal advice kindly consult one of our legal advisors about any specific legal problem or matter.

• one week’s notice if the employee was employed for six months or less;
• two weeks’ notice if the employee was employed for more than six months but less than 12 months;
• four weeks’ notice if the employee was employed for more than 12 months.

The resignation

Can the employee withdraw the resignation?

What are the employer’s options?

The employer now has a choice to either accept the withdrawal or not. Be sure to take into account any underlying problems or conditions regarding the resignation.

Firstly, the employer can hold the employee to the resignation and refuse to accept the request for withdrawal. The employer can still enforce the notice period.

Secondly, the employer can agree to accept the employee’s withdrawal of resignation. There is no need to implement a new employment contract as there was no break in the period of employment. The employment relationship will continue as before. Take note that the terms and conditions of employment cannot be unilaterally amended. Any changes should be negotiated between the parties and mutually agreed upon and reduced to writing and signed.

Contact the LWO at 086 110 1828 with any labour law queries – we are available 24/7. Members can also send an email to info@lwo.co.za for assistance and support.

Disclaimer: Take note that the information and material published is not legal advice but published for general information purposes. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained on this platform. For legal advice kindly consult one of our legal advisors about any specific legal problem or matter.

Awards and penalties

The Labour Relations Act (LRA) gives the Commission for Conciliation, Mediation and Arbitration (CCMA) the power to take action against employers who commit an unfair labour practice or dismiss an employee unfairly.  Once the applicant has referred a dispute to the CCMA, it will be set down for conciliation and a commissioner will be appointed to adjudicate the dispute. If conciliation fails, the matter will be set down for arbitration. Once the arbitration hearing has been concluded, the commissioner will issue awards within 14 days.

Awards and penalties that an employer can face may include the following:

• Reinstatement:

  The employer must take the employee back with retrospective effect to the date of dismissal. In such circumstances, the employer would have to give the employee back pay from the date of dismissal up until the reinstatement award was made.

• Re-employment:
  The employer is required to take the employee back with effect from the date of the award. In some cases, it may be an earlier date.

• Compensation:
  The CCMA can award up to 12 months’ compensation to a successful employee. One month’s compensation will be equal to that specific employee’s monthly remuneration.  If the compensation amount awarded to the employee has not been paid on or before the prescribed date, the employee can exercise his/her right to enforce the award. This means that the employee will proceed to certify the award in terms of section 143 of the LRA and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued. The employee can now instruct a sheriff to attach the moveable goods of the employer.

What can go wrong, ending with awards and penalties?

What does the commissioner consider when calculating compensation?

• What is just and equitable in the circumstances.
• Was the dismissal substantively fair.
• Was the dismissal procedurally fair.
• What are the merits of each case together with its own unique circumstances, the relationship of the parties and their attitude after the dismissal.