A potion for December

A potion for December

Dec 15, 2022 | Business owners tips and advice, The LWO newsletter

A potion for December

by Abrie Bronkhorst

The calendar year is at an end, but the work environment presents many challenges as it is grounded in human relations. Communication remains one of the keys to success in managing the environment and limiting friction, especially over December.
Three areas where friction can easily rear its head, are as follows:
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Year-end function

The festive season is in swing and several businesses are getting ready to end this year with a party. Employers can still hold employees accountable during such functions for any misconduct not normally permitted within the workplace. Regardless of whether the function takes place on the employer’s premises or not, alcohol is often served, which can create challenges for the employer as the consumption of alcohol can lead to misconduct by employees. Employees under the influence can damage working relationships, as well as the employer’s reputation.
For example, employees may drive under the influence after the function, or they may disregard health and safety provisions, which may lead to a claim for an injury on duty. The employer can be held liable for this as the employee attends the function as part of the performance of his/her duties. It is very important that employers take steps to ensure appropriate behavior at functions and inform employees about the following before the function:
  • the level of professionalism expected at the function;
  • that each employee is responsible for keeping his alcohol intake within legal and reasonable limits;
  • that any misconduct by an employee before, during or after the year-end function will lead to disciplinary action against the employee.

Annual leave

Employers should take the following into account when dealing with annual leave:

  • In terms of the Basic Conditions of Employment Act, an employee is entitled to 1 day of paid leave for every 17 days worked. This works out to 1.25 days of paid leave per month, or 15 working days of paid leave per year (if an employee works 5 days per week).
  • The leave cycle is a 12-month period calculated from the date of employment and is renewed annually.
  • Annual leave accumulates and can be carried over to the next leave cycle, but must be taken within six months of the new cycle.
  • Annual leave is paid leave and the employee receives full payment during the leave period. The normal payment date can be modified by a payment agreement for this period.
  • Public holidays do not form part of annual leave and are additional. Please note that 27 December 2022 has been declared a public holiday by the president and must therefore be treated accordingly in terms of compensation and time off.
  • Leave may not be exchanged for compensation. Leave may only be paid out on termination of employment.
Employees should follow a process where a leave form is completed as an application for leave. When an employee applies for leave, the employer has the right to refuse leave due to operational requirements. If an employee’s application for leave has not been approved by the employer and the employee decides to still take the leave, the employer can take disciplinary action against the employee, as the employee is then absent without permission
The employer also has the right to determine a specific period when employees must take the majority of their annual leave to avoid employees taking leave during the business’s busiest times. Take care to communicate this specific period to employees early on to ensure that all employees have enough leave, especially when the business closes for a period. If employees have not accumulated enough leave, unpaid leave must be taken for this period.
We recommend that employers indicate each employee’s available leave, as well as a record of leave taken, on the payslip to avoid any uncertainty. It is important that the employer keeps a record of leave taken as proof should a dispute arise.

Bonusses

A common misperception in the workplace is that employees are entitled to an annual bonus. An employee can only claim a bonus when it is so prescribed by legislation applicable to the specific sector. Bonuses are therefore solely at the employer’s discretion. It is extremely important that the employer confirms this in writing so as not to create an expectation with the employee that bonuses form part of his/her employment conditions.

There are different types of bonuses for which an employee may qualify in the workplace:

  • A thirteenth cheque
This type of bonus is considered a condition of employment. As a result, the employee has the expectation of a thirteenth cheque every year as part of his/her compensation package. If an employer has already granted a year-end bonus to employees for some time, this may also create an expectation among employees to receive bonuses every year as a matter of practice. If the employer wishes to terminate or amend the practice of paying a thirteenth cheque, the employer must consult with the employee and reach an agreement.
The employer may not amend the terms and conditions of employment unilaterally, as this can be regarded as unreasonable and unfair. The employee may refer the matter to the Commission for Conciliation, Mediation and Arbitration.
  • Performance bonus
The performance bonus is awarded at the employer’s discretion following an employee’s individual work performance during a certain period. This bonus can be paid monthly or annually and can be forfeited if the employee’s work performance is not up to standard. It is important that the employer establishes clear standards in terms of quality and quantity that employees must comply with. Employers must also continuously evaluate and assess employees so that any poor job performance can be immediately identified and addressed.
  • Production bonus

The production bonus is awarded at the employer’s discretion following a division or group’s production measured against production goals as set by management.  It is important that the employer establishes and communicates clear targets or objectives to employees. When an employee alleges he/she is entitled to a bonus, the onus rests on the employer to prove the contrary. It is important that an employer continuously evaluates the employee’s work performance, and keep record of these assessments.

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Harassment! The ugly devil in the workplace

Harassment! The ugly devil in the workplace

Dec 15, 2022 | Business owners tips and advice

Harassment! The ugly devil in the workplace

by Abrie Bronkhorst

South Africa’s Constitution guarantees every South African the right to safety and security of the person, as well as the right to fair labour practices. These rights apply to both employers and employees alike and whilst there is a perception that only employees fall victim to harassment and intimidation in the workplace, employers can also be the victim. Workplace harassment and intimidation is one of the most rapidly increasing workplace issues. Employers must be aware of this growing problem and understand the impact not only on employees, but also on the reputation and productivity of the workplace.
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Harassment

Harassment refers to conduct (directly or indirectly) with the intent to harass, annoy or irritate another person, but with no intent to cause physical harm. Examples in the workplace can include:
  • following, watching, pursuing or accosting the victim, or loitering outside of or near the building or place where the victim resides, works, carries on business, studies or happens to be;
  • engaging in unsolicited verbal, electronic or any other communication aimed at the victim whether or not conversation ensues;
  • sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the victim or leaving it where it will be found by, given to  or brought to the attention of the victim;
  • any kind of sexual behaviour;
  • unilateral work changes;
  • unrealistic workplace conditions or performance demands.

Intimidation

Intimidation is the intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm. Examples in the workplace can include:
  • yelling, cursing or swearing;
  • blaming an individual for the mistakes of others;
  • ridiculing through unsubstantiated criticism;
  • attacks on the victim’s self-esteem.

The result of harassment and intimidation

Main affected areas in the workplace include:
  • Loss of productivity due to emotional trauma of victims and distracted employees due to a loss of concentration. A harmonious working environment is vital for productivity.
  • Absenteeism due to fear, stress and emotional trauma. Low self-confidence and humiliation can also lead or contribute to other issues such as alcohol or drug abuse.
  • Misconduct due to the disturbance of workplace relationships. Fear, stress, intolerance, anger and paranoia can lead to other misconduct such as fighting, assault, further intimidation, unauthorised possession of weapons, damages to property, insubordination, negligence, poor work performance, sleeping on duty, etc.

Be proactive as the employer

Every individual has the right to be treated with dignity and respect. Employers, in fact, have an obligation to protect employees from all forms of harassment. It is advisable to implement an internal policy that highlights and prohibits this type of behaviour. The employer can then take disciplinary action against employees who are guilty of this type of behaviour. The employer can also present an awareness session about this prohibited behaviour. Each employee then signs an attendance register as proof that they have attended the session.
It is very important that the employer has a grievance policy and a relevant disciplinary code in place. The aim of the grievance procedure is firstly to create a harmonious working environment by identifying and resolving any dissatisfaction or feelings of injustice from an employee’s side. Secondly, the grievance procedure helps to protect the employer in a case of constructive dismissal, where the work situation had become so intolerable that the employee had no alternative other than to resign. In such a case the commissioner of the Commission for Conciliation, Mediation and Arbitration will always ask whether a grievance procedure was in place. Employers must take any complaints made by employees seriously and thoroughly investigate alleged incidents. Failure to do so may contribute to a referral of constructive dismissal. However, false complaints will be considered gross misconduct.
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.
When trauma occurs in the workplace, it is always a good idea for the employer to consider counselling and even compassionate leave, depending on the circumstances.

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Mistake? 4 common mistakes with fixed term contracts

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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5 success factors with a disciplinary hearing

5 success factors with a disciplinary hearing

Nov 21, 2022 | Articles, Business owners tips and advice

5 success factors with a disciplinary hearing

The success of a healthy employer/employee relationship is based on mutual benefits, respect and trust. However, the employer has the right to exercise control in the workplace by implementing rules, applying progressive discipline, and holding disciplinary hearings when offences are serious. An employer cannot dismiss an employee under any circumstances without first holding a disciplinary hearing. This ensures that the procedure followed is fair, and that there is substantive evidence that may justify the employee’s dismissal. There are five factors, highlighted in this article, which influence the outcome of a disciplinary hearing.

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Success factor #1: Timely scheduling and completion

Disciplinary hearings should be held within a reasonable period from the date of the alleged misconduct or when it first came to the employer’s attention. Any unnecessary delay in scheduling and concluding a disciplinary hearing can be detrimental to the employee, and lead to the assumption that the employer has waived his/her right to take disciplinary action.

Success factor #2: Proper examination of facts

Preparing for a disciplinary hearing is crucial. Employers must ensure that allegations are not malicious and that there is sufficient evidence to substantiate each allegation. Circumstances surrounding the allegations must also be investigated. Should there be the possibility of the presence of the accused affecting the preliminary investigation, or if the nature of the offence so requires, the employee may be suspended (with payment) pending the hearing.

Success factor #3: Weigh the seriousness of the offense

Misconduct in the workplace ranges from minor to very serious. The seriousness of the violation is influenced by the employee’s type of work and responsibility, the (possible) consequences of the violation, and its impact on the employee/employer trust relationship. Where the offence is serious and the possibility of dismissal exists, the employer must conduct a disciplinary hearing to ensure that the procedure followed is fair, and that there is substantive evidence that may lead to the employee’s dismissal.

Success factor #4: Impartial assessment

The chairperson has to be an impartial third party and must make a decision based on the facts and evidence presented during the disciplinary hearing. However, when the employer acts as both complainant and chairperson, he/she can be considered to be biased and the process may be declared unfair. Instead, appoint an external expert to act as the chairperson.

Success factor #5: Follow fair procedure

The majority of cases referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) are due to ‘unfair dismissal’. Generally, arbitration awards granted in favour of the employee are linked directly to an employer who did not follow the correct procedure.

Labour legislation stipulates that a strict procedure must be followed when conducting disciplinary hearings. The employer must be able to prove:

  • That a disciplinary hearing was held.
  • That the employee was notified in writing at least 48 hours (excluding weekends and public holidays) before the hearing in order to prepare.
  • That the documentation contained all the necessary information as required by law (notice to attend the hearing and a procedural application form).
  • That the chairperson was knowledgeable and impartial.
  • That the employee was given every opportunity to prepare for the hearing and defend his/her case.
  • That both aggravating and mitigating circumstances were considered.
  • That the outcome is based on the facts as presented during the hearing.
  • That the sanction was appropriate in accordance with the offense.
  • That the chairperson compiled a written report of the hearing and its outcome.
  • That the employee received the outcome in writing.
South Africa’s labour environment is highly regulated, making it vital and challenging for employers to comply with labour legislation on an ongoing basis. Non-compliance poses serious business risks for employers and may have a huge financial impact.

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Disciplinary investigation – why is it important

Disciplinary investigation – why is it important

Nov 13, 2022 | Articles, Business owners tips and advice

Disciplinary investigation – why is it important

Disciplinary investigation – 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. 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.
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The investigation is a vital part in the disciplinary process.

Employers often do not get the desired outcome at the end of a disciplinary hearing due to insufficient evidence being submitted. A chairperson cannot rely on speculation; the evidence must prove that the employee is directly involved or can be directly linked to the misconduct. The chairperson must consider all the facts and evidence presented during the disciplinary hearing and can only make a finding based on that.

Keep the following in mind when conducting an investigation:

  • It is important to establish when the alleged misconduct took place, where it happened and exactly what happened.
  • Make sure allegations are not malicious and there is sufficient evidence to support every alleged offence.
  • Investigate all surrounding circumstances to allegations and whether there were any witnesses.
  • Assess the circumstances that led to the misconduct.
  • Evaluate if the proof is sufficient to prove the employee’s guilt.
  • Find out if anyone else was involved. Workplace rules must be applied consistently – if two employees were fighting, both must be disciplined.
  • If goods were stolen or property was damaged, determine the value thereof. If the employer is alleging that the company suffered reputational damage, make sure there is sufficient evidence to support this.
  • If possible, try to obtain video footage or pictures of the broken equipment or of the employee committing the misconduct.   
  • Interview the employee to establish what happened and document or record their response to the allegations.
  • Obtain witness statements.
  • Establish whether there are any previous warnings on file and if there are, which warnings are still valid.
  • Any other applicable information which provides full details of the misconduct.

Formulate the charges

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. The charge sheet is very important, and all charges listed must be factually correct. 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.

It is important that employers deal with issues in the workplace as quickly and effectively as possible, whilst taking care to act objectively and consistently. There is no specified period for completion of an internal disciplinary investigation. 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.

What about suspension?

An 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.   Take note that precautionary suspension is with full pay and benefits and that the employee is not being punished.  Employers should take care to always follow the correct procedures, especially when applying discipline in the workplace.

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What about hygiene?

What about hygiene?

Nov 1, 2022 | Articles, Business owners tips and advice

What about hygiene?

The Occupational Health and Safety Act places an explicit obligation on the employer to create and maintain a safe and healthy workplace.  It is undoubtedly in the employer’s interest to consistently apply good hygiene in the workplace.

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Statistics associated with workplace hygiene are as follows:

  • The average desk harbours 400 times more bacteria than a toilet seat. Regular hand washing and sanitising can decrease illness.
  • According to Occupational Care South Africa (OCSA) absenteeism costs the South African economy between R 12- 16 billion annually.

Good hygiene in the workplace contributes to:

  • Continuity of human resources – when an employee takes sick leave, it undoubtedly impacts on the workload of other employees. The employer does not necessarily have spare capacity to address the situation and this puts pressure on the employer’s business activities
  • Saving costs by taking less sick leave – the employee is entitled to paid sick leave when he/she is unable to work due to a medical condition. When absenteeism is reduced, the employer saves money.
  • Heightened productivity by counteracting presenteeism – the term “presenteeism” refers to when employees show up for work while they are ill and this leads to loss of productivity, making mistakes, etc.
  • Improved morale and employee wellness.
  • A positive image in respect of suppliers, customers and investors.
Basic hygiene in the workplace refers to personal hygiene, clean work areas, clean restroom facilities and a clean kitchen. A lack of personal hygiene often leads to friction and negatively impacts the business’s professional image.
Each workplace is unique. Although some businesses need to apply stricter hygiene measures in terms of the service or product they provide, good hygiene in any workplace is to the employer’s benefit.

Be proactive and maintain good hygiene in the workplace:

  • Implement a hygiene policy.
  • Create awareness among employees of the benefits of good hygiene.
  • Cultivate good habits (regular handwashing) and make it easier for employees to practice good hygiene by installing handwashing stations and/or hand sanitisers.
  • Provide a clean restroom that is well stocked with soap, toilet paper and hand towels.
  • Ensure the workplace is cleaned regularly.

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