Importance and implementation of a disciplinary code and written policies

Importance and implementation of a disciplinary code and written policies

Importance and implementation of a disciplinary code and written policies

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.

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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.

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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.

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Warnings and deductions

Warnings and deductions

Warnings and deductions

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).

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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.
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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.

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The right to party

The right to party

The right to party

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. 

 

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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.

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Vicarious liability

Vicarious liability

Vicarious liability

Vicarious liability is indirect liability for the actions of another person, such as an employee.

Case study:

Mrs X, a receptionist at a busy medical practice, was juggling a high volume of phone calls and patient inquiries. One morning, a caller reached out with concerns about her persistent headache and fatigue. Mrs X listened attentively, empathising with the caller’s discomfort. However, instead of transferring the call to a nurse or doctor as per protocol, she decided to offer some advice herself. Later that day the caller came into the practice with her condition only worse after proceeding with the unauthorised advice she unknowingly followed, believing that she had spoken to a medical practitioner the morning who offered advice. Our caller has now suffered and plans to sue the practice for medical negligence she believes took place.
An act of kindness on the one hand or a potential medical malpractice lawsuit on the other by your employee who acted outside her mandated scope of work.
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What is vicarious liability?

Vicarious liability is indirect liability for the actions of another person, such as an employee. There is a very fine line when it comes to vicarious liability, and it holds an enormous risk to the employer. An employer is vicariously liable for the acts or omissions of its employees committed during the course and scope of their employment.

Legal principle:

The general rule is that an employer will be held vicariously liable for the wrongful acts of an employee if the act in question was committed within the course and scope of the employee’s employment or whilst the employee was engaged in any act subsidiary to it.
When applying this legal principle to your day-to-day operations, it is important for all employers to ensure that employees are entrusted with only as much power as is strictly necessary to ensure that operations run smoothly. In order to reduce any risk of an employee acting outside of their mandated scope of employment (and subsequent vicarious liability for the employer), an unambiguous mandate with clear-cut lines which should not be crossed must be implemented and enforced by the employer to ensure that all employees are performing work within the confines of their mandate.
It might even be wise for employers to consult their insurance consultants or brokers, aiming to confirm they possess suitable coverage to reduce the potential risks linked to prolonged instances of employee misconduct. These situations could lead to legal responsibility towards external parties.
The legal principles for vicarious liability have been extended beyond the traditional principle of “in the course and scope of their employment”, to include other criteria when establishing liability, such as the creation by the employer of risk of harm. Keeping this perspective in consideration, employers ought to pursue comprehensive measures to guarantee the mitigation of the business’s risk concerning vicarious liability.

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Verso, ASPF and the LWO

Verso, ASPF and the LWO

Verso, ASPF and the LWO

Article supplied by Verso

Verso, ASPF and the LWO: The Verso Group of Companies, established in 2000, has a national footprint and is comprised of several 100% owned companies operating within the financial services sector. The Verso Group has experienced exceptional growth since inception and is an established and trusted brand in the employee benefits industry.
Verso was built on honesty, transparency, integrity, trust and innovation and these foundational principles resonate in everything that the Verso Group does.

The Verso Group includes the following entities and services:

  • Verso Employee Benefits Consulting (Pty) Ltd – Employee benefits consulting and group risk products
  • Verso Benefits Administrator (Pty) Ltd – Retirement fund administration
  • Verso Health (Pty) Ltd – Brokers of medical aid, gap cover, employee wellness and health insurance products
  • Verso Wealth (Pty) Ltd – Financial management; retirement planning; personal risk management; estate planning; investment planning; individual risk cover – death, disability dread disease
  • Verso Trustee Services (Pty) Ltd – Death benefit investigations, retirement fund secretariat, legal and technical services to retirement funds, pension funds adjudicator complaints management, communication services for retirement funds and fiduciary services
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Verso, ASPF and the LWO:

Since 1991 the Agricultural Sector Provident Fund (ASPF) has been improving the lives of farm workers and farmers by providing flexible risk and provident fund solutions, with a growing membership of more than 20 000 members.
The ASPF specialises in risk and provident fund products in the niche, agricultural environment and associated industries. The ASPF knows that no farm, agricultural structure or associated industry is the same and therefore delivering a unique, versatile product is essential to the market. The ASPF products are flexible and can satisfy a variety of needs, while still being uncomplicated to ease administration and limit costs.
The ASPF is supported and managed by a Board of Trustees originating from, Agri SA, TLU SA and the LWO, together with professional independent trustees.
The ASPF Board of Trustees has appointed Verso Financial Services (Pty) Ltd as the fund’s benefits administrator with effect from 1 October 2022. Verso is proud to have secured this appointment and has already showcased efficient, professional and competent administration services to the fund.

The LWO is a proud partner of the ASPF:

Verso has partnered with the LWO to unlock mutual synergies which could also benefit the ASPF and its participating employers and members, thereby strengthening the service offering of the ASPF. Verso is excited to provide wider services to LWO members, which will enhance the partnership.

For products, advice and services you can trust, please contact Suzaan Hamman (Principal Consultant) at Verso at 021 943500 or email her at LWO@Verso.co.za.

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Origin, overview and purpose of the unemployment fund

Origin, overview and purpose of the unemployment fund

Origin, overview and purpose of the unemployment fund

Article supplied by Narike Kachelhoffer, Evimeria Accounting and Labour Assist

The unemployment fund came into existence on 1 April 2002. The fund is regulated by the Unemployment Insurance Act 2001 and the Unemployment Insurance Contributions Act 2002.
The fund provides temporary financial assistance for workers who, for specific reasons, can no longer earn an income in the economy from employment. The different scenarios in which a worker can claim unemployment insurance are controversial and are measured by the period that the worker did make a known contribution to the fund. Apart from the scenarios in which a worker can claim, there are also scenarios where the worker cannot claim, such as resignation.
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The application of the unemployment fund:

Although there are many controversial reasons why employers and employees do not always see eye to eye when it comes to the fund, one thing is certain – no employer may choose not to deduct it and no worker is exempt from making a contribution, given that in both cases the worker works more than 24 hours per month, earns a basic salary, is not an immigrant on contract, or is employed as a student. It is therefore a compulsory deduction, which must be declared and paid over to the unemployment fund.

The legal contribution obligation towards the unemployment fund:

The unemployment fund contribution is calculated at 1% of the worker’s earnings and 1% contribution from the employer on the worker’s earnings. So a 2% contribution calculated on earnings and which is very fair seen in the light that the payout that workers can receive is more than the contribution made.

The employer and the unemployment fund:

Apart from the obligation to deduct your workers’ 1% contribution from their earnings, this must be declared and paid over to the fund together with the business’s statutory declarations. The South African Income Tax Service is only a payment option in respect of the fund. This is not a declaration to the fund. Therefore, the declarations of contributions by the employer must be maintained monthly through the Unemployment Fund’s platform at www.uif.co.za.

The declarations regarding earnings in businesses (EMP501) are not a declaration and the declarations must still be made to the fund itself. Owners of businesses can be heavily fined if they neglect, or fail to make, the necessary deductions, declarations and payments to the fund.

The worker and the unemployment fund:

It’s not all workers employed by businesses who have to make a mandatory contribution. The following cases are exempt from the mandatory contributions:
  • Students employed by businesses in relation to their studies (students who are employed and study completely independently are seen as normal workers)
  • Workers who earn commission and no basic salary
  • Workers on learning programs supported by the business
  • Immigrant workers employed on contract
  • Government agency employees e.g. municipal workers
  • Workers who work less than 24 hours per month

Claiming from the unemployment fund:

Workers can claim from the fund in the following cases:

  • Students employed by businesses in relation to their studies (students who are employed and study completely independently are seen as normal workers)
  • Workers who earn commission and no basic salary
  • Workers on learning programs supported by the business
  • Immigrant workers employed on contract
  • Government agency employees e.g. municipal workers
  • Workers who work less than 24 hours per month

There is also a death benefit available to the survivors of a deceased worker who made contributions to the fund.

When can the worker not claim against the fund?
  • Resignation
  • Worker who deserts (when an employee is absent from the workplace without the intention of returning to work) associated with case studies
  • If no contribution to the fund was deducted or made during the period of employment
  • Temporary suspension pending a hearing

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