Grievance procedure and constructive dismissal

Grievance procedure and constructive dismissal

Grievance procedure and constructive dismissal

What is a grievance?  A grievance is any feeling of dissatisfaction from an employee regarding the employer, working environment, fellow employees, clients of the employer or any other aspect of the employment relationship. Dissatisfaction with regards to conditions of employment, remuneration, enforcing of discipline, or retrenchment, are not considered grievances and therefore cannot be addressed by the grievance procedure.

Dealing with a grievance

Every employee, irrespective of employee’s position, has the right to lodge a grievance. Lodging a grievance should occur without fear of victimisation or retaliation, regarding a situation that has a negative impact on the employment relationship or work environment. Employees are, however, often reluctant to lodge a grievance, which contributes to unhappiness and an unsatisfactory work environment which in turn may lead to a decrease in productivity and in extreme causes result in the employee’s resignation.

 

All employers, regardless of size or number of employees, should implement a grievance procedure. This procedure should preferably be in writing and readily available and accessible to all employees.

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Grievance procedure

The purpose of the grievance procedure is to firstly create a harmonious working environment by identifying and resolving any dissatisfaction or feeling of injustice from employees in a timeous and efficient manner.  Secondly, the grievance procedure protects the employer in cases of constructive dismissal. In such a case, the commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) will always ask if there was a grievance procedure that the employee could have followed. Constructive dismissal refers to when an employee resigns due to unbearable working conditions.

 

Typically, a grievance procedure policy should include the following:

 

  • Step 1:  The employee must file a grievance in writing with the employee’s immediate supervisor/ line manager within two days after the incident.  If the grievance is against the employee’s immediate supervisor or manager, the employee must refer the grievance to the next level of seniority.  The employee may be assisted or represented by a co-employee.
  • Step 2:  If the grievance is not resolved within two days, the grievance must be referred officially to the next level of seniority e.g. department manager.
  • Step 3:  If the grievance is not resolved within two days, the grievance must be referred officially to the next level of seniority e.g. human resource manager.
  • Step 4:  If the grievance is not resolved within two days, the grievance must be referred officially to the highest level of seniority e.g. the Director.  The employer must investigate the grievance and make a finding within five days.  The employer’s finding is final and binding.
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Constructive dismissal: the possible consequence of ignoring a grievance

Section 186(1)(e) of the Labour Relations Act defines constructive dismissal as the termination of employment at the instance of an employee with or without notice due to continued employment having been made intolerable by the employer.

 

In the event of grievances not being addressed by an employer by the application of a well-structured grievance procedure, it may lead to the resignation of an affected employee and thereafter a claim of constructive dismissal.

 

In the matter of Albany Bakeries Limited v Van Wyk and Others the Labour Appeal Court emphasised the importance of an employee exhausting reasonable alternatives to resignation.  Therefore, the adoption of a formal grievance procedure that is known to and communicated to employees will serve to not only resolve grievances of employees but also protect employers from possible claims of constructive dismissal by employees in that the employer will be able to show that a proper procedure was in place and followed after a grievance was lodged by an employee.

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The art of conciliation

The art of conciliation

The art of conciliation

The Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa is an independent statutory body that facilitates the resolution of workplace disputes through conciliation, mediation and arbitration. It was established in terms of the Labour Relations Act (LRA) and serves as a forum for dispute resolution between employers and employees.  When a dispute arises either party can approach the CCMA. Conciliation is the first step in the dispute resolution process and aims to reach a mutually acceptable settlement without going to court.

What is conciliation?

Conciliation is a process before the CCMA, a Bargaining Council or an accredited agency, where a conciliator will try to assist parties (employer and employee), to resolve a workplace dispute. It is a compulsory process by law, however the outcome is voluntary as it is the right of parties to decide whether they wish to settle the dispute and on what terms. The process is private and confidential, off the record and “without prejudice” meaning that nothing the parties say during the process can be held against them in another process unless by agreement or by an order of a court.

PRE-CONCILIATION

The commissioner or a conciliator may contact parties by telephone or other means, prior to the commencement of the conciliation in order to seek ways to resolve the dispute. If the dispute is resolved, the outcome is also binding.

Advantages of conciliation

Conciliation is a free process that provides for the quick and fair resolution of disputes. It is an opportunity for the parties to listen to one another and to attempt to agree on an outcome that will bring closure to the dispute.

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THE CONCILIATION PROCESS AT THE CCMA

  • Filing the dispute: The party initiating the process must complete and submit the CCMA’s prescribed forms within the stipulated time frame. The other party is then notified of the dispute and given an opportunity to respond.
  • Selection of a commissioner: The CCMA appoints a commissioner, who acts as a neutral third party to facilitate the conciliation process. The commissioner schedules a date, time, and venue for the conciliation hearing.
  • Preparing for conciliation: Both parties gather relevant documents and evidence to support their case. They may also engage in pre-conciliation negotiations or attempt to resolve the matter informally.
  • Conciliation hearing: The conciliation hearing takes place at the CCMA office or an agreed-upon location. The commissioner facilitates discussions between the parties, encouraging dialogue and exploring possible solutions. The aim is to find a mutually acceptable resolution to the dispute.
  • Settlement agreement: If the parties reach a settlement during conciliation, they record the terms of the agreement in writing. This settlement agreement is legally binding and enforceable.
  • Certificate of outcome: If a settlement is reached, the commissioner issues a Certificate of outcome, confirming the resolution of the dispute. This document serves as proof that the matter has been resolved.
  • No settlement reached: If the parties fail to reach a settlement during conciliation, the matter may proceed to arbitration, where a decision will be made by an independent arbitrator.

Applying for conciliation

An employee may apply for conciliation using a LRA 7.11 referral form within:

  • 30 days of the date of dismissal;
  • 90 days of the date of an unfair labour practice;
  • 6 months of the date of an act of unfair discrimination; or
  • 6 months after the act or omission referred to in section 198D (1) of the LRA.

 

A late referral will require an application for condonation.

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    Take note

    It’s important to note that the conciliation process at the CCMA is intended to be informal, flexible, and less adversarial. The focus is on resolving the dispute amicably and reaching a fair outcome for both parties.

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    Understanding statutory severance pay in SA

    Understanding statutory severance pay in SA

    Understanding statutory severance pay in SA

    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.

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    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.

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    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.

     

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    Identifying labour inspectors

    Identifying labour inspectors

    Identifying labour inspectors

    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.

     

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    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.

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    Protection orders against former employees

    Protection orders against former employees

    Protection orders against former employees

    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.

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    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.

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    Counselling as a form of progressive discipline

    Counselling as a form of progressive discipline

    Counselling as a form of progressive discipline

    Counselling as a form of progressive discipline in the workplace and its value is often overlooked. The Labour Relations Act (“LRA”) defines progressive discipline as follows:

    The approach of progressive discipline in the workplace considers the purpose of discipline as a measure for employees to know and understand which standards are required of them. Reasonable steps must therefore be taken to improve or change employees’ behaviour through the systematic use of warnings and consultations.
    The LRA recognises counselling in the form of consultations as a method of progressive discipline. Discipline in the workplace aims to correct and improve the behaviour of employees. The most common example of progressive discipline is issuing written warnings following an employee’s transgression of a workplace rule or procedure. Drafting and issuing a written warning is a quick and simple way of applying progressive discipline. The employee receives a written description of his misconduct followed by a concise explanation of the facts that led to the written warning.
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    But, is issuing a written warning always the most appropriate and effective form of progressive discipline?

    A written warning informs the employee that a workplace rule or procedure has been transgressed and that should the specific act of misconduct be repeated within a specific time frame, further and more serious disciplinary steps may follow. The issuing of a written warning does not necessarily imply that the employee understands the employer’s disciplinary code and the consequences of the misconduct for the employer and fellow employees.
    Counselling is an appropriate form of discipline in instances where the employee’s conduct does not comply with a rule or standard of the employer, or the employee is not aware of a rule that regulates conduct, and in instances where the misconduct is not of a serious nature.

    A good example is an employee who regularly reports late for work. According to the disciplinary code an employer is entitled, after the first instance of reporting late for work, to issue the employee with a written warning. After the third instance of late-coming and following the issuing of a final written warning, an employee may be dismissed (after holding a disciplinary hearing). The employee will be fully aware that the continuous late reporting for work is unacceptable to the employer and the employer has applied progressive discipline as a result thereof. But the question is whether the employee truly realises why it is important to report on time for work.
    In such instances, counselling as a form of progressive discipline can be beneficial for both the employer and employee. During a formal counselling consultation the employer can outline the negative impact and consequences of reporting late for work. The employee will also be given the opportunity to provide reasons why he or she is frequently late for work. Solutions and suggestions to solve the issue can also be discussed.
    It is essential to keep a record of counselling consultations with an employee and any decisions and suggestions made must be put into writing. This serves as proof that the employer has applied counselling as a form of progressive discipline. If the employee’s misconduct persists the employer will be left with no choice but to apply other forms of progressive discipline in the form of written warnings.

    When is it not appropriate?

    Counselling as a form of progressive discipline will, however, not be appropriate in instances of serious misconduct, for example theft, gross negligence and dishonesty. These transgressions amount to serious miscondut and usually lead to an irreparable breakdown of the employer and employee relationship.
    Progressive discipline, and more specifically counselling, can be applied successfully in the workplace if the employee makes a genuine attempt not to repeat the misconduct and rectify his/her behaviour.

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