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Nov 27, 2023 | The LWO newsletter

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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

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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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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Why should you have an evacuation plan

Why should you have an evacuation plan

Dec 15, 2022 | Latest in the industry, The LWO newsletter

Why should you have an evacuation plan

by OH&S – Leo van der Walt

An evacuation plan for any organisation – whether large or small and wherever its operations are situated – forms part of the overall emergency planning that responsible management should have in place. Such plans ensure that every employee will know what to do in emergencies, and also that they will know how to assist others who need help.
Many aspects of emergency plans and evacuation procedures are regulated in terms of the requirements set by the Occupational Health and Safety Act No 85 of 1993 (OHASA) as well as bylaws and industry regulations. However, in addition to the legal responsibility, it makes sense to ensure that you plan for the worst – even while managing your business in such a way that the likelihood of emergencies is limited. Natural disasters can strike anywhere. Major events like accidents or dangerous substances escaping or being spilled through no fault of your own, can happen. They could occur purely due to your geographical situation or an unusual disaster. Although these are fortunately rare events, it still remains important to be prepared to keep people safe at all times.
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Not all emergencies will require evacuation procedures, but when such action is indicated and an alarm is sounded, evacuations are vital to ensure that the potential risk to life and health of all concerned (employees as well as visitors, clients, suppliers, service providers etc.) is limited. Even though a ‘safety drill’ or ‘evacuation plan drill’ may be time-consuming and irritating to some, especially when you are busy with urgent business, it is important to remember that emergencies do not wait for convenient times to occur – they come at any time of the day or night. Emergencies are, by definition, unexpected and unforeseen.

The difference between emergency plans and evacuation plans is mainly the following:

  • Emergency plans are broader and include not only immediate physical threats, but wider issues relating to the organisation’s operations and the ways that the business will deal with those major threats.
  • An emergency plan covers the overall policy and procedures in the event of any number of emergencies such as a fire, structural damage, threats (including bomb threats or other threats), or natural disasters.
  • An evacuation plan is the specific plan or set of instructions on how to evacuate a building and/or an area.
Effective evacuation procedures are planned to ensure smooth and safe action and are intended to ensure that normal operations can continue as quickly as possible after ensuring the safety of people, buildings and equipment. One of the main aims of an effective plan is that it helps to avoid panic, while protecting people and property.

The ‘unforeseen’ part of emergencies can be mitigated by having evacuation plans that have the following characteristics:

  • They are well planned by an interdisciplinary team that can give inputs about a range of potential dangers, as well as about possible solutions to specific problems.
  • They enjoy the full support of owners and top management.
  • Accountability and responsibilities for action during an evacuation is clear, and it is also made clear that their instructions have to be followed.  The person directing or leading people out of a building is possibly – and even likely – not to be the top manager.
  • They address all relevant legal requirements and regulations.
  • They are regularly tested via drills – and all employees (from the most senior to the most junior) and other people present at the time of the drill(s) are required to participate. 
  • They are detailed enough to cover all possible events.
  • They include all relevant important details:  evacuation floor plans, clear and simple evacuation procedures and clear indications and clothing or other indications to mark responsible personnel.
  • They also take care of the ‘small’ things. Plans account for anything that ‘could’ happen and ways to ensure that, for instance, evacuation routes are kept clear of furniture and other obstacles that could impede progress.  They ensure that plans will work in the dark.  They also ensure that, among others, people with physical disabilities or the elderly or small children can be helped. They also include consideration to actions such as specific machinery and vehicles to be switched off, or emergency alternatives for key operations requiring human interaction, etc. The latter could, for instance become very important in farming operations.
  • The location of relevant siren switches, as well as keys and safety equipment is widely known, not only to a few individuals.  It cannot always be accurately predicted who will be present at the time of an emergency. Therefore 24-hour awareness and alert individuals and deputies can make the difference between chaos and ordered procedures being followed.
  • They are regularly updated to account for any changes in working procedures, renovations/changes to buildings etc.
  • Relevant materials (including sirens or other sounding equipment), implements and exit doors are regularly tested and these tests are formally noted and signed off as part of specific individuals’ accountabilities. Employees are informed in advance about relevant tests (e.g. testing sirens) to avoid panic.
  • The importance of evacuation plans is made clear to new employees. They are alerted about relevant procedures as part of their introduction to their new workplace.
  • They are supported with relevant signage that takes into consideration e.g. evacuation at night or alternative routes, should ‘normal’ evacuation routes be blocked.  Text should be clear, short and easy to read.
  • They are clearly communicated to all staff as well as service providers such as security organisations, building contractors and others.
  • Implementation of evacuation plans are included in health and safety plans.  Equipment such as firefighting equipment and first-aid kits should be situated in areas where it makes sense in the case of evacuations.
  • All responsible staff are appropriately trained.
  • Any changes in the procedures are clearly communicated to the entire workforce and regular service providers.  Reminders about safety and evacuation in case of emergencies appear from time to time in relevant communication (using among other e-mails, newsletters, meeting agendas).
  • Responsibility for the implementation of an evacuation plan is transferred during holiday periods, weekends or other absence(s) of those primarily responsible for leadership during evacuations. The names of deputised staff is communicated to all staff – especially receptionists, safety, security and maintenance staff.
  • Drills take place regularly – ideally at least twice a year. Designated routes for evacuation should be permanently and clearly marked.
Very often the individuals responsible for occupational health and safety will also be tasked with responsibility for evacuation procedures. Where relevant, it may be useful to ask professional occupational health and safety advisors to assist by reviewing the process of creating evacuation plans. They could also advise you on the inclusion of relevant actions, implements, materials and signage. For instance, simply by providing input in terms of the visibility of signage or the contents of first-aid kits, expert advisors could ensure that your evacuation plans are as good as they can get for your specific buildings and other structures as well as the people you employ. An organisation such as Beehive OH&S could also advise you on the best way to include evacuation procedures in your overall health and safety planning.

Contact Leo van der Walt of Beehive OH&S and his staff to discuss your specific requirements at 072 594 5989, info@beehiveohs.co.za  or www.beehiveohs.co.za.

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Short time and loadshedding

Short time and loadshedding

Dec 15, 2022 | Latest in the industry, The LWO newsletter

Short time and loadshedding

by Anneline Scriven

In the current economic climate, many employers are concerned about staying operationally viable. Consequently, various reasons can compel an employer to implement short time. What is important though, is that the employer’s reason is valid, and the correct procedure is followed. Short time is not regulated in terms of the Basic Conditions of Employment Act (BCEA), which means that the employer and employee should come to an agreement. We advise employers to be proactive and include a short time clause in the employment contract, as conditions that lead to implementing short time are often unforeseen – this can save the employer a lot of time and money.
During short time employees will work fewer hours and be compensated accordingly for hours worked, subject to a payment of a minimum of four hours in terms of Section 9A of the BCEA. When short time is worked, the work available must be evenly distributed among all employees as far as possible.
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Circumstances to consider

The employer can implement short time during instances that are out of his or her control when production cannot continue – e.g. continued power failures such as loadshedding, weather conditions that negatively affect the day-to-day operations of the business, a slackness of trade, shortage of raw materials, a general breakdown of plant or machinery caused by an accident, or any other unforeseen emergency. The employer can also implement short time as an alternative to retrenchment.

Follow the correct procedure

Working hours form part of the employment contract’s terms and conditions and the employer cannot make any changes unilaterally. This will constitute unfair labour practices and the employee can then refer a dispute to the Commission for Conciliation, Mediation and Arbitration. So, in order to implement short time, there must be an agreement in place between the employer and employee where the employee has given written permission and consent to do so. If there is no prior agreement in place between the employer and employee with regards to implementing short time, the parties must consult about the change in working hours. The consultation process is very important and the employer must be sure to consult with all parties involved. This means that if there is a trade union involved in the workplace, they must be included in the consultation process.

When implementing short time, make sure to discuss the following:

  • The reason for implementing short time;
  • When will short time be implemented;
  • For how long will short time be implemented;
  • How many employees will be affected/which divisions will be affected;
  • What form of short time will be implemented (for example, will there be a reduction in working hours, or will there be a reduction in the number of days an employee works per week);
  • How will the employee’s remuneration be adjusted.
Short time should not be implemented indefinitely but rather for a short period whereafter the employer’s position is re-evaluated. One of the advantages of short time, is that no dismissals take place and employees can return to working their normal working hours as soon as the employer’s circumstances stabilise and are successfully resolved, ending the short time period.
If short time was implemented as an alternative to retrenchment and after the re-evaluation the employer’s position did not change, the employer may need to consider retrenchment subject to following the correct procedure.
The Department of Employment and Labour requires employers to keep a detailed logbook of the hours worked by employees. The recording of these hours can be done manually or electronically by using a clocking system.

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