When an employee’s alleged misconduct in the workplace comes to the employer’s attention, it is necessary to investigate.  This ensures that the employer makes an informed decision based on the facts.  The purpose of the investigation is to establish if there is enough evidence to prove the alleged misconduct, and if there are sufficient grounds for a dismissal.  However, employees are entitled to an expeditious finalisation of disciplinary proceedings.

Disciplinary hearings:  balance is key

Balance is key between conducting a thorough investigation in pursuit of relevant facts, and finalising the disciplinary process in a timely manner and avoiding unreasonable delays.  Failure to do so may result in both substantive and procedural unfairness towards an employee.  Preferably, an investigation must be without any delay and not unnecessarily dragged out. An investigation depends on the nature and complexity of the case, the amount of evidence, and the availability of witnesses and other evidence.

Don’t rush disciplinary hearings

Employers should be careful of rushing the proceedings to schedule and conduct a disciplinary hearing, as it can lead to:

• Incorrectly or poorly drafted charges – the charge sheet is very important, and all charges listed must be factually correct. Once all the information is obtained and the employer is satisfied that there is sufficient evidence to charge the employee with, it is time to formulate the charges.  Ensure that each charged misconduct contains enough detail of the actual offence, including the time, place and a brief description. An employee must be able to prepare for the disciplinary hearing based on these charges.
• Witnesses required to prove the misconduct being unavailable or insufficiently prepared to give evidence.

• Insufficient evidence presented at the hearing – take note that the chairperson can only make a finding based on the facts and evidence presented during the disciplinary hearing and cannot rely on speculation or make inferences in the absence of sufficient facts and evidence relating to the misconduct.

Avoid unreasonable delays

Unreasonable delays in the process should be avoided and whilst investigations into misconduct must be thorough, the employee’s right to have the matter finalised in a timely manner, must be borne in mind.  The Labour Court considers the following factors (to be applied holistically) in determining whether a delay in disciplinary hearings renders the process unfair:

• The delay in finalising the proceedings must be unreasonable. The longer a delay, the more likely it is to be found to be unreasonable;
• The employer must provide a reasonable explanation for the delay. An inexcusable delay will lead to a finding that the process was unfair;
• Any steps taken by an employee, or the failure to take steps during the disciplinary process, to assert the right of the employee to a fair and speedy process;
• Whether or not the delay caused material prejudice to the employee by considering the impact of the delay on the employee’s ability to present a proper case;
• The nature of the offence.

Suspension

If the employee’s conduct is of a very serious nature, the employer is entitled to suspend an employee on a precautionary basis pending an investigation, especially if there is a possibility that the employee can interfere with the investigation in any way, disrupt the employer’s operations, or intimidate possible witnesses.  Take note that precautionary suspension is with full pay and benefits and that the employee is not being punished.

Take note

Discipline is a vital aspect to ensure a workplace functions effectively.  An employer cannot dismiss an employee under any circumstances, even with valid reason, without first holding a disciplinary hearing. This will ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.

It is a common occurrence for employers to alter the reason for termination on an employee’s UI-19 certificate in order for them to qualify to claim Unemployment Insurance Fund (UIF) benefits, but is it legal?

The UI-19 certificate is a crucial requirement for any unemployed person to enable them to claim benefits from the UIF. The reason for termination on the certificate assists the fund to identify and categorise an employee’s right to claim benefits. However, more and more employers are being requested (and complying) to change the reason for termination on former employees’ UI-19 certificates. The reasons for these requests are mainly due to the employees being refused to claim from the fund as the termination reason on their UI-19 certificates disqualifies them from claiming benefits.

Disqualification

Employees are generally disqualified to claim benefits from the fund if they have resigned, retired, are dismissed due to abscondment, or if they have been barred from claiming benefits in terms of the Unemployment Insurance Act 63 of 2001 (UIA). When employees are refused, they turn to employers to change the reason on the certificate to enable them to claim benefits.

Case study – UI-19 certificate changes

Changing the reason for termination on the UI-19 certificate has been discussed in the recent case of Swanepoel v KPMG Services (Pty) Ltd (J494/19) [2021] ZALCJHB 457 whereby the Applicant sought an order compelling the Respondent to change the reason for his termination from ‘involuntary resignation’ to ‘retrenchment’, in order for him to claim UIF benefits.

The court ruled as follows:

[13] There are two hurdles confronting the applicant. Firstly, the jurisdiction of the Labour Court is regulated by Section 66 of the UIA which provides that: ‘Unless this Act provides otherwise, the Labour Court has jurisdiction in respect of all matters in terms of this Act, except in respect of an offence in terms of this Act’.

While Section 64 of UIA provides that:

‘(1) No person may-

• knowingly make a statement or cause a statement to be made which is materially false or which results in an incorrect payment of benefits in an application for benefits in terms of this Act;
• wilfully make any false entry on a contributor’s record card or any other book, record or document relating to either a contributor’s employment history or to a contributor’s claim for benefits; or
• contravene, or refuse or fail to fully comply with any provision of this Act or of any regulation or notice issued in terms of this Act.

(2) Any person who contravenes Subsection (l)(a), (b) or (c) is guilty of an offence.

[14] Given my finding that the applicant’s contract of employment terminated on mutual basis in terms of the settlement agreement, the recordal of ‘involuntary resignation’ in the UI-19 form obviously constitutes a false entry in terms of Section 64(1)(b) and a criminal offence in terms of section 64(2) of UIA. As mentioned above, this Court lacks jurisdiction to deal with criminal offences in terms UIA. 

Fine and/or imprisonment

As seen from the court’s ruling, such false entries made by employers will not only constitute an offence in terms of the UIA but will also constitute a criminal offence. Section 65 of the UIA states that “Any person convicted of an offence in terms of this Act is liable to a fine or imprisonment, or to both a fine and imprisonment.”

Employers should thus be wary of the risks involved when changing the reason for termination in order to assist an employee to claim UIF benefits, as any such actions could lead to severe consequences.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.

Business is conducted in a challenging environment where every workplace is unique. Employees form an integral part of the work environment and are diverse in terms of personality, frames of reference, value systems, culture, motivation, and so on.  Misconduct in the workplace is a common phenomenon and can have a negative influence on any business if it is not proactively managed and handled in line with labour legislation.

Ask the question

When it is necessary to take disciplinary action against an employee, the first and probably most important question to be asked, is whether the employer has implemented a disciplinary code or policy related to the employee’s misconduct. Without evidence of this, disciplinary action taken against such an employee may be considered unfair by the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court.

Section 3(1) of schedule 8 of the Labour Relations Act, which deals with dismissal, stipulates that all employers should have a disciplinary code that sets out the standard of behaviour expected of employees. This section further states that the standard of behaviour must be clearly set out in a way that is easily understandable and accessible to all employees.

Applying discipline

A complete disciplinary code sets out the various offenses with appropriate sanctions. Keep the following in mind:

• Discipline in the workplace aims to adjust and improve behaviour through correction, consultations, and warnings, rather than punishing or dismissing an employee. Dismissal should always be the last option.

• There are different types of misconduct in the workplace ranging from less serious violations to very serious violations, which are influenced by the employee’s type of work and responsibility, the (possible) consequences of the misconduct, as well as the impact of the misconduct on the employee-employer relationship of trust.

• Rules in the workplace apply to all employees and the employer must consistently apply discipline in line with the disciplinary code’s provisions. Although the code serves as a guideline, it may not be lightly deviated from and a heavier or lighter sanction can only be applied in exceptional cases.

Case study

In the case of Mushi v Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine, an employee was dismissed after being found guilty of misconduct. The employer’s disciplinary code stipulated that the sanction for this type of misconduct is the issuing of a final written warning. However, the employer dismissed the employee.

The Labour Appeal Court found that even though the employer’s disciplinary code was a guideline, its purpose is to create a degree of certainty and consistency in the application of discipline in the workplace. The court further argued that any deviation from a disciplinary code may not take place without good reason and that there must be a justifiable and fair reason why an imposed sanction differs from the prescribed sanction in terms of the disciplinary code.

Implementing rules:  have proof

Rules are implemented through the disciplinary code, policies, and procedures. It is essential that the employer must be able to prove that employees are aware of the workplace’s rules (with appropriate sanctions) before the employer can consider any disciplinary action against an employee for violations.

To avoid a situation where an employee can claim that he/she was not aware of the employer’s rule(s), the disciplinary code and any policies or procedures must be in writing and the employer must have physical proof that these rules were communicated to all employees. The employer can do the following:

• Implement an existing or new disciplinary code through a consultation with all employees. The employees may be required to complete an attendance register to confirm that the disciplinary code has been explained to them and that they are aware of its content.

• Bring a new policy or procedure to the attention of employees by sending the policy or procedure to employees via email. The e-mail will then serve as written proof that employees have been informed and are aware of its content.

The vast majority of cases referred to the CCMA are following “unfair dismissal”, of which the majority of these cases are related to misconduct that led to dismissal. Generally, arbitration orders granted in the employee’s favour are directly linked to the employer failing to follow the correct procedure. The CCMA can grant orders of up to 12 months of an employee’s salary against the employer. It is important that employers correctly understand and apply the principles of discipline in order to avoid unnecessary CCMA headaches.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.

Labour legislation strictly regulates any deductions made from an employee’s remuneration, and employers must guard against deducting any money without following the correct procedure.  Various types of deductions can be made ranging from statutory deductions (unemployment insurance, income tax, a court or arbitration order), additional deductions specific to the business industry, and other general deductions (loss of or damage to property, loans, provident or pension fund, union fees and the like).

WARNINGS, DEDUCTIONS AND DOUBLE JEOPARDY

Can an employer recover damages from an employee due to negligence and issue the employee with a warning for the same misconduct, or will this constitute double jeopardy?  Yes, the employer may do so.

Where damages or losses are caused by an employee, the employer is entitled to recover damages based on a civil claim in terms of the common law and the misconduct can be dealt with by way of disciplinary actions as established by the business’ disciplinary code.  The employer must include the sanctions for misconduct in the disciplinary code, and if an offence does occur, the employer must act accordingly. The appropriate sanction for an offence is typically some sort of warning, or in very serious cases, dismissal (but only once a disciplinary hearing has been held).

The employer’s right to recover damages or losses from the employee, as well as issuing the appropriate warning to the employee for the same misconduct, was confirmed by the judgement of Solidarity obo Mohammed / Air Traffic and Navigation Services Ltd [2011] JOL 27921 (CCMA).

DEDUCTIONS FOR DAMAGE RECOVERY

Section 34 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997), or the BCEA, states that deductions are only permitted if the employee has given his or her consent, or if the deduction is authorised through a collective agreement, statutory provision (legally prescribed deduction), court order or arbitration award.

Subject to due process being followed, the employer is authorised to deduct a certain amount from the employee’s remuneration to recover damage to the employer’s property. The BCEA stipulates the following requirements before the employer can make such a deduction:

• The employee must consent in writing to the deduction and the amount must be specified.
• The loss or damage must have occurred in the course of employment, and as a result of the employee’s intent or negligence.
• The procedure the employer follows must be fair and the employee must be given a reasonable opportunity to state his or her case, including why the deduction should not be made.
• The employer may only deduct a maximum of 25% of the employee’s remuneration at a time.
• The total amount the employer deducts may not exceed the amount of the actual loss or damage the employer suffered.

AVOID THIS MISTAKE

Employers often make the mistake of simply informing the employee of the damage to be recovered without first having followed the correct process. Another mistake is to deduct more than 25% of the employee’s remuneration in one go, with or without permission.

This can result in the employee approaching the Commission for Conciliation, Mediation and Arbitration (CCMA) by declaring an unfair labour practice dispute.

South African labour legislation, including the Labour Relations Act, 66 of 1995, and the Basic Conditions of Employment Act, 75 of 1997, place no obligation on the employer to host a year-end function, or for example a Christmas party.

Although a year-end function can help to relieve tension and strengthen employee relations, it is important to regulate employees’ behavior and actions during the party to ensure compliance with legislation and the business’ policy.

WHAT ARE THE EMPLOYER’S  “PARTY” OBLIGATIONS?

The employer has definite obligations when it comes to work functions and can be held responsible for employees’ actions if these actions take place within the scope of their duties.  Specific aspects to consider include:

• Potential damage to the employer’s reputation.
• Potential damage to internal working relationships.
• Risk of employees driving under the influence of alcohol or exceeding the legal blood alcohol limit.
• Employer’s health and safety obligations regarding harassment (both of a sexual or non-sexual nature).

Employers should confirm and implement measures for work functions in advance, even if they have a “zero tolerance” alcohol policy in place. If alcohol is served at the function, it is important that the employer can demonstrate that they have made an attempt to manage employees’ behavior regarding alcohol consumption. 

PRACTICAL TIPS FOR EMPLOYERS

Here are some practical tips for employers to ensure that drink and misbehavior do not take over the party:

• Make alcohol breathalyzers available to employees to test whether they are within the legal limit before they drive home.
• Provide the details of a taxi service or even arrange transport home if possible for employees attending the party.
• Ensure that adequate food, non-alcoholic beverages and plenty of water are available.
• Avoid any drinking games.
• Ensure that responsible drivers clearly understand drug abuse and alcohol policies and that they know when to step in should any situation get out of control.
• Clearly communicate the start and end times of the function.
• Warn employees that they are responsible for their actions after the function and that if they join an after party, they must act responsibly and ensure that they can get home safely.
• Watch out for discrimination and harassment. If harassment or any other inappropriate behaviour is observed, intervene immediately. Do this politely and firmly, but do not under any circumstances ignore such behaviour.
• Plan for dealing with emergencies, injuries or medical problems that may arise during the event. (If the function is organised and sponsored by the employer, and attendance is either mandatory or strongly encouraged, it is more likely that injuries sustained during the event can be considered an injury on duty.)

The workplace is a diverse environment that encompasses a wide range of cultures, religions, beliefs, values, political views, frames of reference, work ethics, and opinions. To prevent workplace accidents, it is important to be aware of hazards and follow safety rules. Employers should establish clear boundaries from the beginning of the employment relationship to avoid any uncertainties going forward. When taking disciplinary action or holding consultations, employers must ensure that they follow the correct procedures to ensure compliance with legislation and company policy.

Case study:

What is vicarious liability?

Legal principle: