Testing positive versus being under the influence

Feb 10, 2023 | Articles

Testing positive versus being under the influence

Employees who report for duty under the influence of alcohol or drugs present a real problem. The use of alcohol or drugs affects an employee’s sight, speech, coordination and reaction speed. In addition, employees working with machinery or driving a vehicle whilst under the influence pose a high risk to the employer, themselves and their colleagues. It is the employer’s responsibility to create a safe working environment for all employees and must always act in accordance with the applicable disciplinary code.

There are Commission for Conciliation, Mediation and Arbitration (CCMA) rulings where an employee tested positive for alcohol but was not deemed to be under the influence of alcohol. The rate at which a person becomes impaired or intoxicated is influenced by factors such as gender, age, body size, food in the stomach, etcetera.

Because labour law does not specify the symptoms to determine whether an employee is under the influence of alcohol, it is important to implement an alcohol/drugs policy in the workplace. This policy aims to establish the employer’s rules in terms of alcohol and drugs (e.g. possession, consumption, intoxication, etc.) and ensure that all employees are aware of these rules and the consequences if these rules are broken. The policy should be clear and stipulate the rules, sanctions and the test procedure, e.g. a breathalyser test for alcohol or a urine test for drugs. Through this policy, the employer can also acquire the employee’s necessary consent to undergo these tests.

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We recommend that employers implement a “zero tolerance” alcohol-related offence policy, as alcohol or drug-related offences in the workplace are very serious and the employer’s responsibility to address. The seriousness of the offence is directly linked to the employee’s duties and obligations regarding the (possible) consequences of this offence and the impact of this offence on the employer-employee relationship. Take note that the employer must be able to prove that employees are aware of the policy before the employer can take disciplinary action.

Consider the following symptoms to determine whether an employee is under the influence:

Red/bloodshot eyes with enlarged pupils
Slurred/incoherent speech
Change in behaviour
Staggering, i.e. the employee is disoriented
Delayed reaction and coordination
Breath smells like alcohol

Take action:

Call the employee aside, preferably to an office. Ensure that a witness is present.
Determine whether the employee is under the influence. Then, request the employee to blow into an alcohol tester, or you can take the employee to a physician for blood tests to determine their blood alcohol level.
If none of these methods is available, or if the employee refuses to cooperate and give permission, it is vital to record their behaviour. Ask witnesses to also record their observations, which must be in writing.
Send the employee home for the rest of the day without pay.
Follow the correct procedure as per your disciplinary code. Keep in mind that the sanction given must be appropriate in relation to the type of work performed by the employee.

Employers must implement clear rules in the workplace and follow correct procedures regarding all labour matters, especially discipline in the workplace. Employers should note that inconsistent disciplinary action/application can lead to unfair labour practices.

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Progressive discipline

Feb 10, 2023 | Articles, The LWO newsletter

Progressive discipline

by Abrie Bronkhorst

The relationship between an employer and employee is based on mutual benefits and respect. Clear rules and guidelines ensure that friction and misunderstandings are limited. This will, in turn, promote a productive and positive work environment.

The vast majority of cases referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) are due to “unfair dismissal”, with most of these relating to misconduct that led to the dismissal. In general, arbitration awards granted in favour of the employee are directly linked to the employer not having followed the correct procedure. The CCMA may grant orders for up to 12 months of an employee’s salary against the employer.

Progressive discipline is a widely known principle in the labour environment. It is also one of the most important factors considered by the CCMA, Bargaining Council and Labour Court when a dispute involving unfair dismissal arises. Therefore, employers must ensure that progressive discipline is understood and correctly applied in the workplace.

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What is progressive discipline?

The Labour Relations Act 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”.

Workplace discipline aims to adjust and improve behaviour through corrective action, consultations and warnings rather than punishing or dismissing an employee. Dismissal should always be the last resort.

Types of misconduct

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. For these rules to be successfully enforced, employees must be aware of the rules. When these rules are violated, the employer can apply progressive discipline or directly proceed with a disciplinary hearing in cases of serious misconduct. The employer must keep detailed records of offences and the sanctions applied. Even if a warning has expired, it is still recommended that it remains on the relevant employee’s file.

There are different types of misconduct in the workplace that range from less serious to very serious offences. It is influenced by the type of work and responsibility of the employee, the (possible) consequences of the violation, and the impact of the offence on the employee-employer trust relationship.

In cases of less serious offences, the employer can follow an informal process through sound advice, guidance, correction and consultation. However, when the offence is of a serious nature, a formal process can be followed in terms of written warnings and/or dismissal after holding a disciplinary hearing.

We can distinguish between different types of warnings: oral and written. Under written warnings, we can also find serious and final written warnings. This gives the employee an indication of how serious his misconduct was and how important it will be to correct this behaviour.

If the employee repeatedly violates the same rule and the employer applies progressive discipline, the employer can issue a more serious warning if the previous warning is still valid. It is crucial to ensure that the warnings follow each other – a serious written warning cannot follow a final written warning. Employers must further guard against allowing warnings to accumulate unnecessarily. Follow the disciplinary code’s guidelines.

An employer cannot under any circumstances dismiss an employee without first holding a disciplinary hearing. This ensures that a fair procedure has been followed and that there is substantive proof to dismiss the employee.

The employer has to manage several business risks daily. Therefore, it is strongly recommended that employers be proactive by implementing clear rules in the workplace and following the correct procedures concerning all labour law issues, especially dismissal and general discipline in the workplace.

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Whistleblowing

Dec 15, 2022 | Articles

Whistleblowing

by Abrie Bronkhorst

Whistleblowing plays a vital role in both public and private organisations. It is defined as the exposing or divulging of information regarding wrongdoing within an organisation. This refers to information on any activity that is deemed illegal, unethical, or not correct within private, public or third-sector organisations.

The Protection Disclosure Act (“PDA”) came into effect in February 2001 and protects whistleblowers in both the private and public sector. This encourages a philosophy of transparency, to fight illegal activities and to create a culture of good governance. In order to be protected by the PDA, a whisteblower must comply with certain requirements. Should these requirements not be met, the whistleblower may be open to legal and/or disciplinary action. These necessary requirements are as follows:

acting in good faith;
the exposure of information may not be made for personal gain; and
there needs to be significant reason to believe that the information is accurate and true

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The employment relationship is essentially built on trust and part of an employee’s legal duties include the fiduciary duty to always act in good faith, be loyal and to have the employer’s best interests at heart. This also includes the employee’s duty to report any dishonest conduct of co-workers. When an employee is not guilty of an offence, but was aware of the misconduct and did not report it to the employer, the employee violated the trust relationship and can the employer take disciplinary action against such an employee.

Typical misconduct in the workplace that can lead to whistleblowing include theft, fraud, moonlighting, alcohol or drug abuse, the divulging or supplying of confidential information and misuse of the employer’s property. We advise employers to implement a whistleblowing policy to encourage employees to divulge illegal, dishonest or irregular conduct of co-workers. Such a policy can also promote a greater sense of accountability in the workplace.

There should also be a clear procedure for employees who become aware of a co-worker’s misconduct, to follow in order to report such misconduct by blowing the whistle. This procedure should have a clear reporting structure and turnaround times. Employees must also be informed of the protection awarded to whistleblowing employees. An employer may not discipline, demote, transfer, harass or dismiss an employee without cause where the employee has made a protected disclosure, as this action is likely to relate to the protected disclosure. However, disclosure by an employee of his own illegal activities will not be regarded as a protected disclosure and will disciplinary action be justified in such a case.

It is important that employers inform employees of their fiduciary duty and the position of trust they are employed in. In most cases regarding the breach of confidentiality and trust, dismissal as a sanction is appropriate as it impacts directly on 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.

It is the employer’s obligation to ensure a safe and secure working environment free from harassment and intimidation. Regular communication is vital in the workplace. Meetings with employees, individually or in a group, will create a platform for employees to voice their thoughts and ideas, as well as to discuss any specific needs. Labour legislation is applicable to all employers and employees and aims to regulate labour relations ensuring fairness in the workplace. Not following the correct procedures can lead to dire consequences with a huge financial impact for the employer.

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Conflict in the workplace

Nov 29, 2022 | Articles

Conflict in the workplace

Conflict – People contribute to the uniqueness of every workplace with different personalities, attitudes, background, culture, etc. Labour law sets strict requirements that employers must comply with. These requirements are not negotiable and to consistently comply is a huge challenge, especially when human relations come into play.

It is the employer’s right to exercise control in the workplace by implementing rules and applying discipline. Effective communication promotes positive relationships within the workplace and limits friction that can lead to conflict.

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Conflict in the workplace is a common phenomenon. It typically occurs as follows:

Disagreements between employees themselves, as well as with the employer
Management style of managers
Diverse personalities
Annoying behaviour
Employees feel that certain other employees are “favoured” by management

Be proactive about conflict

The well-known adage “a stitch in time saves nine” definitely applies. Conflict has a huge impact in the working environment and can quickly escalate to bigger disputes that could have been prevented, if the employer handled it correctly. Employers must address the following four components:

Establishing goals:

Set achievable goals for employees. Employees need to know what is expected of them and what standard applies to performance. This can greatly reduce conflict by creating certainty. Continuous evaluation and training is essential to assess work performance. Give recognition to employees who achieve goals and perform well. Positive competition between employees are also healthy.

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The disciplinary code:

Every workplace must have a relevant disciplinary code. The disciplinary code is important to ensure that there are clear rules in the workplace for employees to follow. When these rules are broken, the employer can apply discipline in accordance with the applicable sanctions as listed in the code.

Communication:

Effective communication creates an environment receptive to growth. Employers must consult regularly with employees (individually or in a group), and also keep record of these consultations. This creates a platform for employees to discuss their thoughts, ideas and any specific needs.

Grievance procedure:

It is imperative that the employer establishes internal procedures to give employees the opportunity to bring any unhappiness or unsatisfactory working conditions to the attention of the employer.

The relationship between the employer and employee is based on mutual benefits and respect. An organised and positive working environment directly contributes to productivity.

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Mistake? 4 common mistakes with fixed term contracts

Nov 24, 2022 | Articles, Business owners tips and advice

Mistake? 4 common mistakes with fixed term contracts

In general, it is a mistake not to be informed… The Basic Conditions of Employment Act (“BCEA”) dictates the minimum employment conditions that an employer and employee can agree upon. Take note that labour legislation applies to all employers and employees, irrespective of how the employment relationship is recorded, or the term thereof.

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Four common mistakes regarding fixed term contracts include:

Mistake 1: no written employment contract

One of the biggest mistakes employers make is not to implement written employment contracts, or to settle for a generic employment contract that offers minimal protection when there is a dispute in the workplace. The employee is employed from the moment he/she accepts employment, irrespective of how the relationship is recorded – via an oral or written agreement. A written agreement (employment contract), however, creates clarity by confirming the terms and conditions of employment agreed upon and protects the employer in terms of the employment relationship going forward.

The employment contract can be of immense value to the employer if used effectively. Making a mind shift regarding employment contracts from an “administrative burden” to “risk mitigating tool” can save employers a lot of time and money in the long run.

Mistake 2: disguising permanent employment

Unfortunately, it does happen that employers attempt to evade the statutory obligations in terms of labour legislation altogether, or attempt to evade permanent employment by employing employees on a fixed term basis. This is however a grave mistake and employers must clearly understand that to disguise what is in fact permanent employment in the form of a fixed term contract is illegal.

It is crucial that an employer enters into the correct type of employment contract. Ask yourself: is the position of a permanent/indefinite nature; or is the position of a temporary nature, for a specific time period or for a specific project? Employees employed on a fixed term basis for longer than three months, will be deemed to be permanent employees, unless the longer fixed term period is justifiable in terms of the Labour Relations Act (“LRA”).

Mistake 3: creating an expectation

The employer must be careful not to create an expectation of permanent employment with the employee, which can easily happen when a fixed term employment contract is renewed for a second or third, similar period. The more frequently an employer rolls over a fixed term contract, the more reasonable becomes the employee’s expectation that it will continue to be rolled over in the future, hence creating an expectation of permanent employment. Failing to renew such a contract, can then be seen as an unfair dismissal.

If a fixed term employment contract comes to an end and the employee remains in this position, legislation states that that employee will be regarded as a permanent employee. This means that the contract will be deemed to have been tacitly renewed on the same terms, except that the relationship will now be of a permanent duration.

Mistake 4: different terms and rules

There is a myth that the same legislation, discipline, policies and procedures does not apply in the same way to fixed term employees, as it does to permanent employees. The only difference between a fixed term and a permanent employee, is the term of employment.

Fixed term employees must be treated the same as permanent employees with regards to wages, leave and other benefits. Employees on fixed term contracts must also be given equal access to opportunities to apply for vacancies as well as be entitled to severance pay upon termination of employment where the employee is employed on a fixed term contract exceeding 24 months.

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Whistleblowing and blowing the whistle

Nov 23, 2022 | Articles

Whistleblowing and blowing the whistle

Whistleblowing plays a vital role in both public and private organisations. It is defined as the exposing or divulging of information regarding wrongdoing within an organisation. This refers to information on any activity that is deemed illegal, unethical, or not correct within private, public or third-sector organisations.

The Protection Disclosure Act (“PDA”) came into effect in February 2001 and protects whistleblowers in both the private and public sector. This encourages a philosophy of transparency, to fight illegal activities and to create a culture of good governance

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Whistleblowing and the employment relationship

The employment relationship is essentially built on trust and part of an employee’s legal duties include the fiduciary duty to always act in good faith, be loyal and to have the employer’s best interests at heart. This also includes the employee’s duty to report any dishonest conduct of co-workers. When an employee is not guilty of an offence, but was aware of the misconduct and did not report it to the employer, the employee violated the trust relationship and can the employer take disciplinary action against such an employee.

Typical misconduct in the workplace that can lead to whistleblowing include theft, fraud, moonlighting, alcohol or drug abuse, the divulging or supplying of confidential information and misuse of the employer’s property. We advise employers to implement a whistleblowing policy to encourage employees to divulge illegal, dishonest or irregular conduct of co-workers. Such a policy can also promote a greater sense of accountability in the workplace.

An employer may not discipline, demote, transfer, harass or dismiss an employee without cause where the employee has made a protected disclosure, as this action is likely to relate to the protected disclosure. However, disclosure by an employee of his own illegal activities will not be regarded as a protected disclosure and will disciplinary action be justified in such a case.

It is important that employers inform employees of their fiduciary duty and the position of trust they are employed in. In most cases regarding the breach of confidentiality and trust, dismissal as a sanction is appropriate as it impacts directly on 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.

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