In terms of the latest Labour Appeal Court Judgment, handed down on 10 December 2020, an employee is required to give an employer written notice to resign, as per the employee’s signed contract of employment. In the absence of a contractual stipulation of a notice period, the Basic Conditions of Employment Act applies.

Taking into account the above, an employer has the right to discipline an employee for misconduct, alternatively have an incapacity hearing (ill health and/or poor performance), within the employee’s notice period.

If, however, the parties agree to waive the notice period and not enforce the required period in which the employee is required to work out the notice, this agreement shall be binding and lawful.

Bernard Reisner

Cape Labour and Industrial Consultants

Many employers invoke precautionary suspension in order to allow them both time and space to properly investigate the wrongdoing and to protect themselves against further wrongdoing.

The employee is approached and advised of the investigation and advised of the allegations. For the precautionary suspension to be permissible it needs to be shown that the suspension was fair and whether there was a fair reason for the suspension. The suspension will be on full pay and thus there would be no prejudice against the employee.

This suspension cannot be for an inordinately long period of time and also should not be seen to be a punishment. The employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension. Furthermore, the suspension imposed on the employee must be a precautionary measure and not a disciplinary one.

The employee will be paid a full salary during the suspension. If the employer has the necessity for a pre-suspension hearing, in terms of the employer’s disciplinary procedure, then that must take place timeously before the employee is suspended on full pay.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The Commission for Conciliation, Mediation and Arbitration (CCMA), a statutory body for aggrieved employees, says it will no longer be able to operate at full capacity as a result of its upcoming R617m budget cut.

The commission’s finances are so dire that it had resolved to stop doing conciliation and would instead go straight to arbitration.

The cut will also affect its ability to help employees being retrenched by employers. This will have a knock-on effect on the unemployment crisis.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

It is with some relief that we have received a Consolidated Direction under Gazette No 43751.  This Consolidated Regulation was brought into law on the 1^st October 2020. These Directions override all previous Directions and to a large degree are easier to understand and to implement.

If there are less than ten employees the business needs only to apply the measures set out in Direction 12.  For employers with over 10 employees, every employer must undertake a risk assessment and must consult with trade unions if there is one or with their Health and Safety Committee established in terms of the OHSA.  This plan will include a list of issues including the list of employees, the opening hours, the identification of the vulnerable employees, minimizing the number of workers at the workplace and the protective measures taken.  If the employer employs more than 50 employees, they must submit a record of the risk assessment to the Health and Safety Committee and to the Department of Employment and Labour within 21 days of the Direction.  It must be remembered the Direction is effective from the 1^st of October and hence employers with over 50 employees must submit the risk assessment to the Department by the 22^nd of October at the latest.

The employer must also disclose to all the workers the content of this Direction and they must require all employees to disclose whether they have health issues, comorbidities or conditions contemplated in the definition of vulnerable employees.

All employees must be told that if they are sick or have symptoms associated with the virus, they must not come to work and they must be given paid sick leave in terms of Section 22 of the Basic Conditions of Employment Act “BCEA”.  As far as practical employers must minimize the number of workers at the workplace using structures such as rotation, staggering work hours, shift systems, remote working and or similar measures.  The inspectors might also need to temporarily close the affected work area for decontamination.  All employers who employ over 50 employees must submit data to the National Institute for Occupational Health about each employee’s vulnerability.  They must also supply details of the screening of employees who are symptomatic and the details of the employees who test positive. Once again, we must reiterate that all employers must have a minimum of 1.5 meters between workers but if not practical then physical barriers have to be placed between the work stations or erected on work stations.  All the PPE must be supplied free of charge.

Every employer must take measures to screen workers and determine whether they suffer from any of the symptoms.  If a worker is showing evidence of the symptoms they must be provided with a surgical mask and arrangements must be made for the worker to be transferred to a health facility. Thereafter they must assess the risk of transmission and disinfect the area.

The employee must be placed on paid sick leave but if the paid sick leave is exhausted they must make an application for the temporary employer relief scheme.  It is noted that this is slightly different to the normal emergency UIF payments.  The employer cannot discriminate against any employee on the grounds of having tested positive. The employer must lodge a claim of compensation in terms of the Compensation for Occupational Injuries and disease activity.  The worker will only be allowed back to work after the diagnosis without viral testing if the worker has completed the mandatory ten days of isolation.  However, the worker can come back to work earlier if the worker has undergone a further medical evaluation confirming fitness to work.  Any other employee who has had minimal exposure to the diagnosed worker may continue working using a cloth mask.  If high risk, the worker must remain in quarantine for 7 days and all other workers must be monitored for the 10 days thereafter.  All employers must supply adequate facilities for washing hands with soap and water and paper towels.  Employers are obliged to ensure that the workplace is well ventilated by natural or mechanical means.  Small businesses with 10 employees or fewer must develop a basic plan for phasing in the return of its employees taking into account comorbidities and age.  Small businesses must provide cloth masks or require an employee to wear some form of cloth covering over their mouth and nose whilst at work.

If an employee refused to perform any work there must be a reasonable justification for this.  The employee is obliged to notify the employer either personally or through a health and safety representative of his or her refusal and the reason for the refusal.  Every employer in turn will consult with the Compliance Officer and the Healthy and Safety Committee and if no committee with the representative.  The employer and the employee should try and resolve the matter internally but if they are unable to resolve it then they must notify an inspector of the issue.  If there is no reasonable explanation by the employee then the employee has to return to work or could face possible action and certainly no salary for the downtime.  If the employee is still of the opinion that he or she should not return to work the employee is obliged to refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA).  The CCMA will sort this matter out as soon as possible.

It is submitted that certain of these disputes could easily be avoided if the parties discuss the employee’s concerns about their health and safety.  It does state that no employer may make any deduction from an employee’s remuneration or permit an employee to make any payment to the employer or any other person, in respect of anything which the employer is obliged to provide in terms of these Directions.  This refers to PPE and not to the refusal to work.  It must also be mentioned that there are various Sectoral and or Industrial Associations that would develop their own guidelines in conjunction with the Department of Health.