Embrace remote work

Embrace remote work

Embrace remote work

The evolution of the workplace has seen a significant shift in recent years, especially with the increasing acceptance of remote work. Initially born out of necessity during global crises such as the COVID-19 pandemic, working from home has transformed from a temporary solution to a permanent feature in many companies in South Africa. From an employer’s perspective, this shift not only challenged traditional business models, but also unlocked an abundance of opportunities and benefits for both employers and employees.

Advantages of remote work

  • Productivity: One of the most significant advantages observed by employers with remote work is an increase in productivity. Contrary to initial apprehensions that employees might be less productive outside a traditional office setting, many companies have reported the opposite. With fewer office distractions and reduced commute times, employees are often able to focus better and complete tasks more efficiently.

 

  • Cost savings: Transitioning to remote work can also lead to substantial cost savings for businesses. Reductions in office space requirements translate directly into decreased overhead expenses such as rent, utilities, and office supplies. Similarly, employees benefit by saving on commuting costs, parking fees, and daily meal expenses. For instance, many companies have adopted permanent remote or hybrid models, anticipating savings from reduced office space needs. These savings can then be redirected into other strategic areas such as technology upgrades, employee training, and development, or even increasing profitability.

 

  • Employee satisfaction and retention: Offering remote work can significantly enhance employee satisfaction and retention. It allows employees to maintain a better work-life balance, reducing stress and burnout. Employers have noted that remote work policies have become a key factor in attracting and retaining top talent. Moreover, flexible working conditions are particularly attractive to the millennial and Gen Z workforce, who prioritise flexibility and personal well-being over more traditional workplace benefits.

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Navigating challenges

Despite these benefits, remote work does present certain challenges from an employer’s perspective.

 

  • Communication and collaboration: Ensuring communication and collaboration in a remote setting requires the right technology and a shift in management practices. Employers must invest in secure and efficient communication tools and platforms to facilitate seamless teamwork. Additionally, maintaining company culture and employee engagement without physical interaction demands an innovative approach, such as virtual team-building activities and regular check-ins.

 

  • Leadership skills: It is essential to equip managers with the skills needed to effectively lead remote teams. They must excel in managing team dynamics and performance, even in the absence of traditional, in-person interactions. This requires placing a greater emphasis on results over procedures and cultivating a culture of trust and accountability.
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Moving forward

As we move forward, the future of work appears to be hybrid – a blend of remote and in-office arrangements. This model promises to combine the best of both worlds, providing flexibility while retaining the benefits of physical office space for collaboration and social interaction. For employers, the key to successful integration of remote work lies in adapting leadership styles, investing in technology, and maintaining ongoing communication with employees.

 

While the transition to a remote or hybrid work environment poses challenges, the advantages, from increased productivity and cost savings to enhanced employee satisfaction, are compelling. Employers who embrace and adapt to these changes are likely to thrive in the evolving business landscape, marking a significant shift in how work is perceived and conducted in the modern era.

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Farm workers’ right to family responsibility leave

Farm workers’ right to family responsibility leave

Farm workers’ right to family responsibility leave

South African labour legislation provides employees with a multitude of different entitlements to leave including annual leave, sick leave, family responsibility leave, maternity leave, parental leave, adoption leave, commissioning parental leave and study leave. However, there still seems to be many employees that confuse family responsibility leave with other forms of leave, as well as when they are entitled to take family responsibility leave.

 

Employers in the agricultural sector regularly have queries regarding farmworkers who insist on combining family responsibility leave with other forms of leave, e.g. taking either family responsibility leave and/or sick leave to attend to their children’s routine clinic or hospital check-ups.

Mythbusters #1 & #2:

1.  A farmworker is not entitled to paid family responsibility leave to take a child for a routine check-up visit to a clinic.

2.  A farmworker cannot utilise his/her own sick leave to take a child for a routine check-up visit to a clinic.

Family responsibility leave

Family responsibility leave is a leave entitlement contained in labour law that allows an employee to attend to certain specified familial responsibilities, such as if the employee’s child, or adopted child, is ill. Whereas sick leave allows the employee him-/herself time off from work to recover from an incapacity which renders them temporarily incapable, or medically unfit for work, due to illness or injury.

Mythbuster #3:

3.  A farmworker is not entitled to take family responsibility leave with the birth of their children.

 

Approximately four years after the law has changed, this popular misconception still exists. Previously the law made provision for an employee who was the spouse, or life partner of a person giving birth to a child, to take three days’ family responsibility leave. However, the law has since changed to allow for the inclusion of other forms of leave. As from the 1 January 2020 farmworkers (other than their spouses/life partners who are on maternity-, adoption- or commissioning parental leave) are no longer entitled to the three days’ family responsibility leave for the birth of their child but are now entitled to unpaid parental leave.

 

Currently the Basic Conditions of Employment Act (as amended), more commonly known as the BCEA, read together with the Sectoral Determination number 13 (applicable to the agricultural sector), is the main legislative authority on the law surrounding family responsibility leave for farmworkers.

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Requirements to qualify for family responsibility leave

In essence the law currently provides that farmworkers are entitled to three days’ paid family responsibility leave per annual cycle, provided that they have been employed for a period of longer than four months and work at least four days per week for the employer.

 

Family responsibility leave may be taken in full or in days, as it is needed. In the event of a farmworker requesting family responsibility leave, the employer may require reasonable proof, such as a medical or death certificate.

 

Employers are only required to grant farmworkers paid family responsibility leave, if they have sufficient family responsibility leave left, and only in the following instances:

 

  • When the farmworker’s child is ill; or
  • In the event that anyone of the farmworker’s below-mentioned family relatives should pass away:
    • the farmworker’s spouse/life partner,
    • the farmworker’s child/adopted child,
    • the farmworker’s parent/adopted parent,
    • the farmworker’s sibling,
    • the farmworker’s grandparent,
    • the farmworker’s grandchild.

Setting a precedent

The employer does have the discretion to allow for more time off, or to allow a farmworker to take other forms leave such as annual or special leave, which could be paid or unpaid leave, if the farmworker’s family responsibility leave entitlement has been exhausted. However, if the employer does grant additional paid leave in these instances, it can be viewed as an additional benefit to the farmworker, and which might also set a precedent in the workplace and therefore the employer should take care to act consistently in granting similar benefits towards all employees.

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    By clearing up these misconceptions, we can promote a better understanding of the rights and entitlements of farmworkers in South Africa, ensuring that both employers and employees in the agriculture industry receive fair treatment and support to balance their work and family responsibilities.

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    Importance of presenting evidence correctly

    Importance of presenting evidence correctly

    Importance of presenting evidence correctly

    During disciplinary and arbitration proceedings, the employer has a responsibility to present evidence to the chairperson or commissioner to prove its case.  Evidence is defined as: “the available body of facts or information indicating whether a belief or proposition is true or valid”. It is thus the proof of the employer’s argument and not just the argument itself.

    Employer’s responsibility

    It has however recently been noted that employers tend to neglect this responsibility of adducing evidence to acquire, compile and prepare evidence for the disciplinary hearing or arbitration.

     

    This consequently negates the chairperson’s ability in conducting the hearing seeing as he will need to hear evidence from both sides to make an objective decision regarding the matter. This neglect will also negatively affect the employer’s case should the matter be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

    Case law #1

    In the case of NUMSA obo Mnisi and First National Battery (2007) 16 NBCCI, employees were accused of stealing batteries from their workplace. During their disciplinary hearing, a tape recording was introduced as evidence in the latter stages of the hearing. The tape recording contained a confession by one employee that implicated the others. Despite objections by the union, the tape was admitted, leading to the dismissal of the applicants.

     

    At arbitration, the employer failed to produce direct evidence linking the applicants to theft, relying solely on testimony from disciplinary officials. Shockingly the crucial tape recording allegedly went missing and instead of calling the employee who made the recording to testify, the employer decided to only introduce a written statement from the employee as evidence. The commissioner stressed the employer’s responsibility to prove fairness in dismissals, emphasising the careful evaluation of evidence in arbitration. With no direct evidence and the missing tape, the commissioner found the dismissal unjustified. Furthermore, the admission of the tape without allowing cross-examination of the aforementioned, was deemed unfair.

    Case law #2

    In another case, Moloko v Ntsoane and Others (JR 1568/02) [2004] ZALC 35, unauthenticated video footage together with a written unsworn statement was introduced as evidence against an employee in disciplinary proceedings. The employee was later found guilty and subsequently dismissed. In both the hearing and the arbitration proceedings, the only evidence from the complainant was an unsworn statement, which in the opinion of the court amounted to hearsay evidence, seeing that the statement was never affirmed by the maker thereof. Coupled this with the unauthenticated video footage, the court found the dismissal of the employee substantively and procedurally unfair.

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    Key points to take note of:

    • Appoint a qualified person to chair disciplinary hearings who is knowledgeable in both labour law as well as the law of evidence;
    • Evidence presented at hearings need to meet the requirements in terms of the law of evidence in order to be admissible;
    • Accused employees should be given the chance to cross examine or dispute evidence presented by the employer;
    • If inadmissible evidence is considered when dismissing an employee, the dismissal would be unfair.
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    It is clear that if an employer does not introduce or present evidence correctly at disciplinary hearings or arbitrations, serious consequences may follow such as the employee’s dismissal being declared unfair. The employee may further be awarded compensation, or even be reinstated.

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    Disputes regarding deductions

    Disputes regarding deductions

    Disputes regarding deductions

    Section 34 of the Basic Conditions of Employment Act (BCEA) outlines the prerequisites that must be satisfied before any deductions can be made from an employee’s remuneration.

    What are the consequences of deducting money from the employee’s remuneration without his/her consent?

    The employee has the right to raise a dispute internally regarding the alleged unlawful deduction.  If such a dispute is raised internally, it must be dealt with, and feedback must be provided to the employee.  If the dispute is not resolved, the employee has the right to refer the dispute to an external dispute resolution.

    Which external dispute resolution has the right to deal with a dispute regarding alleged unlawful deductions?

    Section 77 of the BCEA provides that the Labour Court has exclusive jurisdiction over all disputes arising from the Act.  Therefore, in terms of Section 77, the Labour Court has jurisdiction to deal with disputes relating to unlawful deductions.

     

    This principle was confirmed in the matter of O’Reilly v CCMA and Others JR 2395 19, where the Court held that “there is no provision in the BCEA that says that the CCMA has jurisdiction to determine a claim regarding an alleged breach of Section 34(1) of the BCEA”.

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    Does the CCMA have jurisdiction?

    No, the Commission for Conciliation, Mediation and Arbitration (CCMA) does not have jurisdiction to adjudicate a dispute for unlawful deductions.  If a matter is referred to the CCMA where the employee is disputing the deductions made, a point in limine can be raised in which arguments are to be lead that the CCMA lacks jurisdiction and that the matter can only be entertained by the Labour Court.

     

    The CCMA will only have jurisdiction to adjudicate matters that relates to monies owed to an Applicant in terms of Section 73A, which includes salaries, bonuses, amounts due in terms of the National Minimum Wage Act (NMWA), and any amounts that the employer is obligated to pay in terms of the BCEA, but excludes deduction disputes.

    Tips to keep in mind:

    • Employers may lawfully deduct specific amounts from an employee’s salary with their written consent and if required or permitted in terms of a law, collective agreement, court order or arbitration award.
    • The amount deducted from an employee’s salary may not exceed one-quarter of the employee’s remuneration in money (per payment).
    • The CCMA lacks jurisdiction to adjudicate disputes regarding Section 34 of the BCEA relating to deductions made, and the dispute should be referred to the Labour Court instead.
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    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. 

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    What is a policy?

    A policy informs employees of the rule/s in respect of a certain topic. The employer puts these rules in place in order to ensure the smooth and efficient running of his/her business operations. Policies are not underwritten by labour legislation, but define the employer’s own rules, which must be reasonable, for the workplace. We strongly advise employers to implement the following policies in the workplace:

    Code of conduct

    A code of conduct states the employer’s own rules specific to his/her business and industry. These rules should refer to, for example, general rules in the workplace, hygiene, salary advances, safety regulations, use of company property, clothing, etc.

    Smoking policy

    A smoking policy firstly states whether smoking is allowed and secondly if so, the designated areas and specific times allocated for smoking. In the policy the employer can state the times allocated during the day that employees are allowed to smoke, as well as the duration of these breaks, e.g. 10h00, 12h00 and 14h00 for 10 minutes each.
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    Sick leave policy

    Leave matters are regulated by Labour Legislation and refer to annual, sick, family responsibility and maternity leave. It is a good idea to incorporate this into leave policies, but take care that the policy is not less favourable than the applicable legislation which should be adhered to. The aim of a sick leave policy is to regulate the amount of sick leave employees are legally entitled to, as well as the reasonable requirements set by the employer for sick leave to be approved. This can include timeous notice of intended sick leave to the relevant person (management), when a sick note must be presented and the disclosure of the period that the employee will be unfit for duty. This gives the employer time to make other arrangements to ensure sustainable productivity.

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    Progressive discipline

    Progressive discipline

    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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