Counselling as a form of progressive discipline

Counselling as a form of progressive discipline

Sep 27, 2023 | Articles

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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Theft and dismissal

Theft and dismissal

Sep 27, 2023 | Articles

Theft and dismissal

Prevention and Combating of Corrupt Activities Act, 12 of 2004 (“PCCA”)

In the realm of employment law and corporate governance, the Prevention and Combating of Corrupt Activities Act, 12 of 2004 (“PCCA”) holds significant importance, particularly when it comes to addressing employee misconduct involving theft, fraud, extortion, or forged documents. This legislation introduces a crucial dimension that employers must consider when contemplating the dismissal of an employee for theft.
When an employee is found guilty of theft of funds belonging to their employer, the standard protocol often involves a thorough investigation and appropriate disciplinary procedures. Depending on the severity of the offence, the employee may be dismissed in accordance with established guidelines as set out in Schedule 8 of the Labour Relations Act, 66 of 1995 (“LRA”). However, in cases involving significant monetary amounts, employers must now tread carefully due to the provisions as outlined in section 34(1) of the PCCA.
As of July 31, 2004, the PCCA instituted a reporting obligation on employers who are privy to knowledge, or even suspicion, of an employee’s involvement in theft, fraud, extortion, or uttering a forged document amounting to R100 000.00 or more. This mandate necessitates that employers report such knowledge or suspicion to the South African Police Service, even before a dismissal is considered. The scope of this requirement underscores the legislature’s commitment to combatting corrupt activities within the corporate and employment sector.
Failure to adhere to the reporting obligation imposed by the PCCA carries serious consequences for employers. Section 34(2) of the Act criminalizes an employer’s failure to report knowledge of employee’s misconduct, exposing them to potential fines or even imprisonment for up to 10 years. This underscores the gravity with which the South African legal system views the reporting obligation and the imperative for employers to exercise due diligence.
The PCCA underscores the significance of a holistic assessment of the circumstances surrounding an employee’s alleged theft. Employers must carefully consider factors such as the intent, the amount, and the nature of the misconduct. This deliberation helps determine an appropriate course of action, whether it be disciplinary measures or compliance with the reporting obligations. The principle of proportionality should guide employers in striking a balance between punishment and the pursuit of justice.
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Framework for employers

The PCCA represents a crucial framework for employers in South Africa to combat financial misconduct within their organisations. While the Act mandates reporting in cases of substantial theft or fraudulent activities, employers must also uphold fairness and due process during disciplinary proceedings. As employers navigate the intricacies of the Act, they are reminded of their dual responsibility to safeguard their interests and uphold the principles of justice and accountability.

Theft is serious misconduct

Theft in the workplace is a serious misconduct that places additional pressure on a business in terms of profitability and sustainability. In most cases of theft, dismissal as a sanction is appropriate as the rule against theft is not only well known, but goes to the root of the employment relationship that binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable. Always follow the correct procedures with regards to labour matters, especially dismissal and general discipline in the workplace.

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“It was just a joke”

“It was just a joke”

Aug 20, 2023 | Articles

“It was just a joke”

It often happens that an employee will try to excuse inappropriate behaviour by saying that it was just a joke. The management of human relations in a work environment is particularly complex and a ‘joke’ can have serious and far-reaching consequences for which the employee can be held accountable.
The workplace is an extremely diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethics, opinions and the like. Not everyone will always get along with those around them and when conflict does arise, the employer must step in and assist in resolving the conflict before it escalates.
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Bad behaviour disguised as a joke

Thanks to modern technology, equipment that can record incidents or conversations are highly accessible to those who wish to use it. Coupled with the fact that the workplace is a highly regulated environment in terms of legislation, employees ought to think twice about engaging in an inappropriate ‘joke’.

Typical examples of this behaviour include:

  • Discriminatory references to race, gender, religion, disability, age, sexist comments, sexual harassment, and so on.
  • Pranks and games. When it comes to tools, vehicles and machinery, no games or pranks can be afforded. Injuries can easily occur during pranks while working in close proximity to a tractor or hammer mill, for example.
  • Teasing.
  • Horseplay. This entails rough or rowdy games or pranks at the workplace and can include activities such as pranks involving physical contact, playing around, racing, grabbing, social pressure to engage in unsafe acts, harassment and unauthorised competitions.
  • Information shared on social media platforms such as WhatsApp.
  • Threats. When one employee threatens to harm another, including verbally and non-verbally (for example an intimidating look or hand gestures that make you feel unsafe).

A so-called ‘joke’ that goes awry will expose the employer to various risks, including injuries on duty, damage to property, damage to team dynamics when workplace relationships break down, damage to the employer’s public image, grievances, referrals to the Commission for Conciliation, Mediation and Arbitration (CCMA), and court cases.

Disciplinary action

Every workplace must have a relevant disciplinary code ensuring that clear rules with appropriate sanctions are followed. The workplace disciplinary code provides for various types of offences relating to inappropriate behaviour or a ‘joke’, including disorderly behaviour, abusive behaviour, damage or misuse of the employer’s property, breach of trust, and offences relating to alcohol or drugs.
Humour is a necessary outlet for alleviating underlying tensions in the workplace, and this type of behaviour therefore often begins with harmless intentions. However, the employer must consider the seriousness of the offence and apply discipline accordingly.
The type of work an employee does, along with his or her level of responsibility, the (possible) consequences of the offence, and its impact on the employee-employer trust relationship all determine the seriousness of an offence. The offence will also be considered serious if an employee’s dignity has been affected.

Be proactive

Most workplace accidents can be prevented by being aware of hazards and following safety rules. Boundaries should be set from the beginning of the employment relationship to avoid any uncertainties going forward. Employers must make sure they follow the correct procedures when taking disciplinary action or holding consultations.

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COID Act, previously known as Workmen’s Compensation

COID Act, previously known as Workmen’s Compensation

Jul 27, 2023 | Articles

COID Act, previously known as Workmen’s Compensation

Article supplied by Stephan Pietersen, Work Accident Support.

Compensation for Occupational Injuries and Diseases Act (COID Act), 1993:

In terms of the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 (COID Act), previously known as the Workmen’s Compensation Act, all businesses who employ one or more employees must register with the Department of Employment and Labour’s Compensation Fund within seven days after the first employee is appointed. This is to cover employees against work accidents and occupational diseases. It applies to temporary, part-time, full-time, seasonal, and casual employees. Exempted employers will not need to pay assessment fees to the Compensation Fund, but will have to compensate their own employees who sustained work accidents or suffered an occupational disease.

Exempted employers are:

  • national and provincial government departments
  • certain local authorities
  • employers insured by a company other than the Compensation Fund

13 different classes and sub-classes:

Businesses who are registered in terms of the COID Act fall into 13 different classes and are further divided into sub-classes. Each sub-class has its own rate which is adjusted periodically. This is the rate which businesses pay for every R100 they pay out in wages/salaries to their employees. The subclasses and rates were reviewed in 2020 and are phased in annually until 2025.
Businesses in the building industry are licensed to the Federated Employers Mutual Assurance (FEMA) and those in following classes are licensed to Rand Mutual Assurance Company (RMA):
  • Mining industry
  • Iron
  • Steel
  • Artificial limbs
  • Galvanizing
  • Garages
  • Metals
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Declare annual earnings:

Businesses must declare their earnings to the Compensation Fund, or the respective licensee, so that their account can be calculated. Once calculated, fees will be payable in 30 days. Failure to declare the earnings before the due date will result in a penalty being issued of 10% on the current year’s assessment fee and an additional penalty of 10% on the full assessment fee if the account is paid late.
Businesses should be aware that they may apply for a payment arrangement. Also note that if a mistake was made when declaring the earnings, a business has 60 days to request a review of the account. When a business ceased operations it must apply to the Compensation Fund to be de-registered and this can only be done manually.

Compensation for Occupational Injuries and Diseases Amendment Act, 2022:

On 17 April 2023 the Compensation for Occupational Injuries and Diseases Amendment Act, 2022 was signed into law. Although signed into law, the implementation date has not yet been provided. Businesses will suffer great financial losses if they miss the due date for the declaration of the return of earnings or the late payment of the assessment. While businesses are being penalised 10% of the assessment currently, the amendment act stipulates that businesses will be penalised 10% of the annual earnings declared, which will have far greater financial consequences.

Businesses registered with the Compensation Fund paid R9,5 billion in 2020 in assessment fees, but there are tens of thousands of businesses who are registered with the Fund but who do not declare their earnings. The more than 25 000 businesses registered with Rand Mutual Assurance paid R2,5 billion in assessment fees and R870 000 million were received by businesses registered with Federated Mutual Association.

Letter of good standing:

A business will be in good standing when it:

  • Is registered with the Compensation Fund – section 80
  • Declared the annual earnings – section 82
  • Paid the assessment fee in full / pay instalments – section 86
  • Report accidents timeously
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Work accidents:

All accidents and alleged accidents must be reported within seven days after an employer received notice of such an accident and in the case of an occupational disease, the timeframe is 14 days. The employee should seek immediate medical treatment when a personal injury was sustained and it is the responsibility of the employer to provide transport for the employee to the nearest doctor. Failure to report the accident in seven days can result in a penalty being issued of 10% of the declared earnings and a penalty of the full cost of the transportation of the injured employee. In terms of the COID Act, a business must make payment of 75% of the employee’s salary for a period of up to three months while booked off duty and claim this back from the Compensation Fund.

The following documents must be submitted to report an injury:

  • An employer’s report of an accident (WCI.2)
  • The treating doctor’s first medical report (WCI.4)
  • The injured employee’s payslip as at the time of the accident
  • A valid certified copy of the employee’s ID or other proof of identification
It is important for businesses to ensure that all these documents must be submitted as it can delay the adjudication of the claim, which can prevent doctors being paid for services rendered. Whereas employers paid the medical expenses themselves and transported the injured employee to receive medical treatment, those expenses can also be claimed back from the Compensation Fund or the particular licensee. The salary paid by the employer can also be included in the claim.

Benefits payable in terms of the COID Act:

There are several benefits payable if the claim is accepted for the payment of reasonable medical expenses and compensation:
  • Temporary total disablement – loss of salary income while the employee is booked off duty and is receiving medical treatment
  • Permanent disability – the employee suffered impairment and is not able to function as before the accident
  • Death – in the unfortunate case where an employee passed away, the spouse and minor children qualify for a monthly pension. The funeral expenses are also payable.
  • Medical expenses – The Compensation Fund is also a medical aid and medical expenses and the conveyance of the injured employee will be paid according to the medical aid tariffs
  • Constant attendance allowance – An additional payment of compensation can be approved when the injured person who is receiving a monthly pension, needs constant help to perform the essential actions of life.
In 2020/2021 the Compensation Fund paid out R9,5 billion in compensation which includes medical payments, compensation and pension payments, this was a decrease compared to 2019/2020 where R12,5 billion was paid out. During the 2020/2021 the Rand Mutual Assurance paid out R1,5 billion in compensation.
A couple of years ago, the Compensation Fund appointed an additional 500 inspectors to ensure that employers are compliant in terms of the COID Act. The amendment act places a greater emphasis on employers to stay compliant as the penalties that can be issued will have huge financial implications.

Work Accident Support together with the LWO have gathered a way for our members to banish all insecurity regarding the COID Act. Let Work Accident Support ensure you comply while you focus on your business.

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Termination of Employment: Notice periods and payment in lieu – A practical guide

Termination of Employment: Notice periods and payment in lieu – A practical guide

Jul 27, 2023 | Articles

Termination of Employment: Notice periods and payment in lieu – A practical guide

In the dynamic landscape of employment, the termination of an employment relationship is often an inevitable part of business operations. As an employer, it is crucial to navigate the provisions regarding notice periods and payment in lieu with care to ensure compliance and maintain healthy employer-employee relationships.

Understanding notice periods:

The Basic Conditions of Employment Act (BCEA) stipulates minimum notice periods based on an employee’s length of service. While these minimum periods act as a foundation, employers may choose to implement longer notice periods through employment contracts or collective agreements. Just keep in mind that even if a shorter notice period is agreed to it will not be valid as the agreement may not deviate from the minimums set out in the legislation. A necessary caveat here is to take note that certain sectors specify their own minimum notice periods so a good starting point would be to establish which sector your business falls under.
As it will be the most applicable, let’s deal with the minimum notice periods as set out in the BCEA. Where the employee is employed for a period of:
  • Less than 6 months – 1 week’s notice is required;
  • More than 6 months, but less than 1 year – 2 weeks’ notice is required;
  • More than 1 year – 4 weeks’ notice is required.
These notice periods are applicable to the employer and employee, so should the employee resign this will apply as well. It happens very often that employees will resign with immediate effect or not complete the notice period, however this entitles the employer to claim and immediately recover certain damages from the employee for the shortfall period of services rendered (make sure to include this clause in the employment contract).
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Payment in lieu of notice:

In some instances, employers may choose to terminate an employee’s contract without providing a notice period. This situation may arise when there are concerns about the employee’s conduct, breaches of employment terms, or severe misconduct. In such cases, employers can make a payment in lieu of notice instead.
This involves compensating the employee for the value of the notice period they would have served. The payment should reflect the employee’s remuneration, including salary, benefits, and any other entitlements. Employers must calculate this sum accurately and ensure that it aligns with legal requirements and the terms outlined in the employment contract. Hint: remember accrued leave days for the final payment.

Immediate termination for serious misconduct:

In cases of severe misconduct, a proper disciplinary hearing will be held and the chairperson might recommend that the employee be summarily dismissed, but what is this and what do I do now? Shortly, summary dismissal is the immediate termination of employment meaning no notice or payment is applicable. Remember that this does not affect salary for days already worked or accrued annual leave pay with the final payment due to the employee.

Conclusion:

When it comes to terminating an employee’s contract, understanding notice periods and the possibility of payment in lieu of notice is essential for employers. By adhering to contractual and statutory obligations, maintaining transparent communication, and ensuring legal compliance, employers can navigate the termination process fairly and minimise the risk of legal disputes later on.

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What can go wrong in the employment relationship?

What can go wrong in the employment relationship?

May 3, 2023 | Articles

What can go wrong in the employment relationship?

At the start of the employment relationship, even though the parties don’t know each other, a fiduciary duty is already in place that requires the employee to act in good faith and in the best interest of the employer. Many things can go wrong in any relationship, therefore it is important that the employer implements a written employment contract with each employee on the first day of employment. A written employment contract creates clarity by confirming the terms and conditions of employment agreed upon and protects the employer in terms of the employment relationship going forward. Take care to include a job description that specifies the employee’s duties and employer’s expectations.
The employment relationship is a relationship of trust based on mutual benefits and respect. As a business owner, the employer should always anticipate what can go wrong in the employment relationship, in order to mitigate risk and be best positioned going forward. Poor work performance, conflict, misconduct, and a breach of trust can place this relationship in jeopardy and employers should take proactive steps to regulate the employment relationship and protect their rights.
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The following issues can go wrong and cause a breakdown of trust in the employment relationship:

  • Conflict
    The workplace is a very diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethic, opinions, etc. Everyone won’t always get along with each other and when conflict arises, the employer should step in and assist to resolve the conflict before it escalates, or starts to affect more employees and negatively impact on business operations.
  • Misconduct
    Misconduct can be described as an employee’s failure to act according to the employer’s rules and policies. In basic terms, misconduct is a behaviour issue of the employee. Such behaviour is normally deliberate or negligent, and employees can be held accountable for their actions. Misconduct can take various forms, including theft, fraud, dishonesty, insubordination, absence from work without permission, etc.
Every workplace must have a relevant disciplinary code. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are violated, the employer can apply progressive discipline, or in cases of serious misconduct proceed directly with a disciplinary hearing. It is vital to always follow the correct procedure, as in failing to do so can lead to dire consequences with a huge financial impact.
  • Poor work performance
    Poor work performance refers to an employee’s incapacity when an employee fails to reach and maintain the employer’s work performance standards in terms of quality and quantity. 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 standard, the employee is said to be incapable and the employer has the right to dismiss him/her subject to following the correct procedure. Poor work performance involves a consultation process where the employee is informed of shortcomings and provided with training and guidance to achieve the desired outcome. The employee is then monitored for a reasonable period of time and offered further training and guidance as needed. If the employee does not improve sufficiently, a formal disciplinary process can follow which can lead to dismissal.

It is important to maintain good and healthy working relationships. Boundaries should be set from the beginning of the employment relationship to avoid any uncertainties going forward. Keep the communication lines open for all parties to address any issues which may arise. Employers should take care to follow the correct procedures when taking disciplinary action or holding consultations to avoid ending up at the CCMA (Commission for Conciliation, Mediation and Arbitration).

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