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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    Retrenchment:  process and reason

    Retrenchment: process and reason

    Retrenchment: process and reason

    It happens that an employer is in financial trouble, has to develop strategies to limit losses, or has to deal with a drastic change in the market that disrupts the entire business. These are good examples of situations in which retrenchment may be necessary. In a nutshell, the substantive requirement is completely justified: one cannot draw blood from a stone if the business simply does not have enough funds. But the second aspect of a legal retrenchment is the procedural requirements. When a dispute arises over retrenchment, both substantive and procedural requirements are considered.

    Substantive requirements (the facts)

    In terms of Section 189 of the Labour Relations Act (LRA), there are specific criteria that employers must meet before layoffs begin. These criteria include:

     

    • Operational requirements: Employers must show that there are genuine operational reasons necessitating retrenchment. These may include economic factors such as a decrease in revenue, technological advances resulting in restructuring, or changes in market conditions.

     

    • Selection criteria: Employers must establish fair and objective criteria for selecting employees for layoffs. This may include factors such as, among others, skills, qualifications, or years of service. Discrimination based on factors such as race, gender or trade union membership is strictly prohibited.

     

    • Alternative measures: Employers should explore alternatives to layoffs, such as offering voluntary severance packages, implementing shorter working hours, or moving employees to other positions within the business.

     

    Dealing with the substantive issues requires consideration and planning from employers. It is essential to assess the business’s financial situation, explore all available options, and ensure transparency and fairness throughout the process.

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    Procedural requirements

    The procedural requirements with retrenchment refer to the steps that employers must follow when considering layoffs. Legislation sets out a detailed procedure that employers must follow, which includes:

     

    • Notice and consultation: Employers must notify the affected employees and relevant trade unions or employee representatives of the proposed layoffs. This notice must include, among other things, the reasons for layoffs, the number of employees involved, and the expected timeline.

     

    • Consultation process: Employers must engage in a meaningful consultation process with affected employees and their representatives. This entails that relevant information is provided, alternative measures are considered and that there is sufficient time for discussions.

     

    • Joint decision-making: Employers and employee representatives are encouraged, where possible, to engage in joint decision-making regarding the retrenchment process. This may include: negotiating severance packages, investigating relocation opportunities, identifying training and other support for affected employees, and so on.

     

    • Notice and severance packages: Employers must notify the affected employees in writing of the layoff, as well as provide severance packages in accordance with the Basic Conditions of Employment Act. The notice period and severance packages are determined based on the employee’s years of service: one week’s wages for each completed year of service.
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    By following the prescribed procedural steps, employers can ensure that they comply with legislation and reduce the risk of disputes. Effective communication, transparency and empathy are essential components of the procedural aspect of layoffs. Retrenchment is a complex and challenging process for both employers and employees. By understanding and addressing both the substantive and procedural issues set out in Section 189 of the LRA, employers can deal with retrenchment in a fair and responsible manner.

     

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    Incompatibility in the workplace

    Incompatibility in the workplace

    Incompatibility in the workplace

    Unity in the workplace is one of the many requirements that are essential to maintaining a successful business. Employees of a business are considered to be a team that should work together to achieve the business’s goals and overcome challenges. This implies that employees should get along with each other at least to such an extent that the employer’s operations are not negatively affected by conflict between employees and/or with the employer’s customers.

    A diverse environment

    The workplace is a very diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethics, opinions, communication skills etc.  Not everyone will always get along and the potential for conflict and disagreement in the workplace is always a risk. In extreme cases, these conflicts and clashes can lead to incompatibility.

     

    Incompatibility in the context of the workplace and labour law is not defined by the Labour Relations Act or any other South African legislation. It is therefore a difficult concept to define with certainty. Incompatibility can be due to, among other things, an employee’s attitude, temperament, unique way of working, temper, impatience, interference, manipulation, lack of communication skills, as well as the employee’s behaviour in general that interferes with the effectiveness of the employer’s operations.

    Case law

    As incompatibility is not defined by legislation it is necessary to look to case law for guidance when dealing with cases of incompatibility. According to case law, an employer is entitled to insist on a working environment that is peaceful. It is an implied condition of an employee’s employment contract that the employee will not conduct himself or herself in a way that could lead to disagreement and conflict in the workplace.

     

    However, the reality is that, just as in the case of any other relationship, the possibility exists that the relationship between the employer and employee or between a specific employee and fellow employees, conflict may arise in the form of incompatibility.

     

    The concept of incompatibility can be seen as a form of incompetence: the employee does not fit in with the employer/business’s culture, or just does not get along with management, fellow employees or customers.

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    How should the employer deal with this?

    A distinction must first be made between incompatibility and misconduct. Misconduct in the workplace is addressed by applying discipline, usually in the form of written warnings. Incompatibility cannot be addressed through disciplinary measures because the incompatibility is not necessarily intentional or attributable to misconduct.

     

    When an employee’s behaviour leads to incompatibility, the employer must undertake a consultation and counselling process. It is extremely important to take into account that even though incompatibility is not specifically defined in the Labour Relations Act, the dismissal of an employee can ever only take place after a procedurally and substantively fair process was held.

     

    The employee must therefore at all times be afforded the opportunity to state his/her side. The employer also has the obligation to make reasonable efforts to try to resolve or at least improve the incompatibility, and to offer the employee the opportunity to try to change or adapt. Sometimes incompatibility can be resolved by, for example, moving the employee to another department or offering the employee counselling.

    Take note

    Dismissal must always be considered as a last resort and will only be appropriate if there are no other reasonable alternatives available, and the relationship between the employer and employee, or between the employee and fellow employees, has broken down beyond repair.

     

    It is essential to thoroughly document the process followed in trying to resolve incompatibility. This protects the employer in case the employee is dismissed after the process is concluded, in that the record of this process is available to prove that the dismissal was fair.

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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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