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Resigning immediately puts stop to disciplinary proceedings

Did you know that resigning with immediate effect puts a stop to disciplinary proceedings against an employee?

If an employee resigns with immediate effect, the employer has no jurisdiction to proceed with a disciplinary hearing against the employee. The contracted employment comes to an end with immediate effect and the employer loses the right to discipline and proceed with the disciplinary hearing against the employee.

On the other hand, if an employee resigns with notice, in writing, and works out the notice period, the employer can discipline the employee during the notice period and proceed with a disciplinary hearing.

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
Dereliction Of Duty

Dereliction of Duty is a charge that refers to an intentional or conscious failure of an employee to do his/her duty.

Examples of dereliction of duty include situations where the employee:

  • Abandons an asset of the employer in a place where it is at risk. For instance, a company driver might leave the company vehicle in order to visit a friend despite being well aware that the location is a crime-ridden neighbourhood.

 

  • Ignores the client he/she is supposed to be serving in order to finish off the cashing up or administrative work early.

 

  • Knowingly fails to switch on the safety device of a machine operated by a subordinate or colleague.

 

  • Downloads data from a website that the employee knows is infested with viruses.

 

  • Fails to implement the spyware security procedures because he/she is in a hurry to leave.

 

  • Deserts his/her post as a security officer without an acceptable reason.

 

  • Gives the strongroom keys to an unauthorised person in order to be able to go on a long lunch.

Dereliction of duty cannot simply be used in every case where employees have performed their work poorly or failed to carry out instructions. Such problems can very often result not from intentional or conscious decisions but from lack of skill, faulty equipment, misunderstanding of the instruction or other reasons.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za
The Exit Interview

The exit interview is a voluntary, verbal interview between an employee who’s leaving your company and an HR person if the company has one. If there is no HR person, any other authorised person would conduct the interview. The interview often takes place one to two days before the employee actually leaves.

What is the Purpose of the Exit Interview?

The goal of this interaction is two-fold: firstly, the employee has a chance to vent their feelings about the work experience. Subjects covered may include their boss, colleagues, company procedure, staff interaction, productivity, morale, finances, equipment, job satisfaction and so on.

Simply gathering the information is only part of the exit interview process. The second purpose is to analyse it, and share it with the departing employee’s colleagues.

Are there any benefits to exit interviews?

Not always. Some employees, reluctant to “burn their bridges” are not completely honest for fear of getting a negative reference for a future employer. Instead, they either paint a rosy picture or withhold negative information. This creates a system in which change is critically needed, but no one knows it because everyone’s afraid to point out the obvious.

Also, this interview is rendered ineffective if the departing employee isn’t interested in sharing information and gives brief “yes” or “no” answers.

HOW TO CONDUCT AN EFFECTIVE EXIT INTERVIEW?

The Exit Interview may be conducted through a variety of methods. Some of the methods include: in-person, over the telephone, on paper and via the Internet.

7 Common Exit interview questions you’ll be asked.
  1. Why are you leaving your current position?

 

  1. Do you think you were adequately equipped to do your job well?

 

  1. What was your relationship with your manager like?

 

  1. What was the biggest factor that led you to accept this new job?

 

  1. What did you like most about your job?

 

  1. What did you dislike most about your job?

 

  1. What skills and qualifications do you think we need to look for in your replacement?
4 Tips for a successful Exit Interview
  1. Vent ahead of time, not during the interview

 

  1. Plan and prepare for the session

 

  1. Exit with grace by focusing on the positive.

 

  1. Provide useful facts
National Minimum Wage Bill

National Minimum Wage Bill

1. Can you please explain exactly what the implementation of the Minimum Wage Bill would look like?

 

The implementation of the minimum wage bill has still some way to go. The National Assembly of our parliament has passed this bill, but it still has to go to the National Council of Provinces. There still needs to be some public input into this, and only after the public input has been taken and the National Council of Provinces approve it, will it be sent to the President. I believe that this will take another 3-4 months.

 

2.  What impact do you believe this will have on people who currently earn less than what it stipulates?

 

I strongly believe that implementation of the national minimum wage will create all sorts of problems in the work force. The National Treasury tell us that it will lead to about 750,000 jobs being lost, and I believe it will be a lot more.

3. How do you think companies, who will have to adjust their payroll, will respond to this bill?

 

Many of the companies have already stopped recruiting, and many will undergo an exercise of retrenchment if they can’t afford. The government has said that the businesses will be able to apply for exemption, however, notoriously exemptions are difficult to obtain and are also very difficult to apply for. The exemption process is normally extremely onerous and it is believed that small businesses won’t apply for the exemptions but will merely retrench their staff.

 
Cape Labour and Industrial Consultants
For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za
Breaking one’s fast during the holy month of Ramadan, whilst on shift at work

Several Muslim employees who work in call centres contacted me for labour law advice in regard to breaking one’s fast, whilst on shift at about 18h00. They advised me that weeks prior to Ramadan, the employees engaged with their employers to agree to take a few minutes off work to break their fast in order to consume a small snack. The employees advised me that their employers failed to wish to accommodate them in this regard, due to call centres having to be fully operational 24/7, seven days a week. As a result hereof, they were unable to break their fast at the appropriate time, due to the operational requirements of the business. They told me that they would have to break their fast when an opportunity arose when there were less incoming calls to attend to.

Many employers fail to show religious respect / tolerance for it’s Muslim employees and fail to entertain an amicable resolution, in order for the employees to break their fast timeously.

My recommendation is for those Muslim employees who affected to approach the Equality Court for relief. Alternatively, they could declare a labour dispute at the CCMA and attend a conciliation hearing. If this hearing remains unresolved, they could seek relief at the Labour Court for discrimination on the grounds of religion.

 

For further information you can contact Bernard Reisner:

W.Tel no.:       021 423 3959

Cell:                 082 433 8714

E-mail:             bernard@capelabour.co.za

Website:          www.capelabour.co.za

Psychological Well-Being of an Employee in the Work Place

Psychological Well-Being of an Employee

Symptoms of mental illness negatively affect quality of life and inter-personal relationships in the workplace.

Factors such as unattainable workloads, lack of control, poor leadership, incompetent management and hostile interpersonal interactions at work, all serve to contribute to poor psychological health.

Employers have a responsibility to create conditions at work that are conducive to good psychological health, but unfortunately this is not always a responsibility they are willing to assume.

There is much that we can do to promote our own mental health such as eating a balanced diet, getting adequate sleep, exercising regularly, and learning to manage our thoughts, emotions, behaviours and interactions with others.

Regulating our levels of stress and maintaining a support system and good interpersonal relationships goes a long way to inoculating us against mental illness.

Honing our problem-solving time management and communication skills are also important for building psychological resilience.

As individuals, we clearly have a role to play in doing what we can to look after our psychological health. This requires self-care, self-awareness and knowledge about mental health.

Employers have a crucial responsibility to actively create conditions which promote people’s psychological well-being. Employers need to become more educated and well versed in attending to the psychological well-being of its employees.

For any further Labour Law related queries, please contact Bernard on:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

IMPACT OF DEPRESSION OF AN EMPLOYEE IN THE WORKPLACE

 

Depression has a significant negative impact on productivity and performance in the workplace. Depression affects cognitive functioning such as decision making, concentration, memory and problem-solving abilities.

I concur that the onus is on the employee, in conjunction with the employer, to seek remedies to enable the employee to deal with the treatment of depression, by use of medication (if necessary), therapy and life-style changes.

In general, employers fail to ensure that affected employees are encouraged and supported in seeking treatment, as employers generally do not have the knowledge as to how to deal therewith.

There is a stigma attached to depression and many employees who suffer therefrom fear disclosure of their condition, as it may lead to the termination of their services. The more depression is  de-stigmatised and understood, the greater the chances that the employee will remedy the condition with the support of the employer.

EMPLOYEE RESIGNING FROM EMPLOYER ON NOTICE VERSUS EMPLOYEE RESIGNING FROM EMPLOYER WITH IMMEDIATE EFFECT.

EMPLOYEE RESIGNING FROM EMPLOYER ON NOTICE VERSUS EMPLOYEE RESIGNING FROM EMPLOYER WITH IMMEDIATE EFFECT.

 

When an employee resigns on notice, all rights and obligations under the employment contract continue until the expiry date of the notice period. If the employee dismisses the employer during the notice period, the contract terminates preceding the conclusion of the notice period. The employer should first issue the employee with a written suspension letter and notice to attend a disciplinary hearing.  A disciplinary hearing is to be scheduled and the chairperson is to issue his/her written findings and recommendation. Thereafter, the employer is to endorse same.

 

If the employee first resigns, in writing, on notice then resigns again “with immediate effect” during the notice period, the employer lacks authority to discipline the employee after the second resignation. In essence, where the resignation is with immediate effect, the employer losses the right to discipline the employee, also with immediate effect.

 

OTHER COMMON LAW RULES RELATING TO RESIGNATION

 

  1. Once communicated, a notice of termination cannot be withdrawn unless agreed.

 

  1. Termination on notice is a unilateral act- it does not require acceptance by the employer.

 

  1. If the employee having given notice does not work out in notice, the employer is not obliged to pay the employee on the principle of no work no pay.

 

  1. If the notice is given late (or short), that notice is in breach of contract entitling the employer to either hold the employee to what is left of the contract or to cancel it summarily and sue for damages.

 

  1. If notice is given late (or short) and the employer elects to hold the employee to the contract, the contract terminates when the full period of notice expires. In other words if a month’s notice is required on or before the first day of the month, notice on the second day of the month will mean that the contract ends at the end of next month.

For more labour law related enquiries, please feel free to contact Bernard on the following:

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za

Employing foreigners in South Africa

Employing foreigners in South Africa

 

The employment of foreigners in South Africa is regulated by the Immigration Act 13 of 2002, as amended (“the Immigration Act”). The Immigration Act provides for the ability of foreigners to work in South Africa. The Immigration Act is supplemented by the Immigration Regulations which underwent significant changes in May 2014, specifically in relation to work visas.

 

The Employment Services Act 4 of 2014 (“ESA”), which came into effect in August 2015, further regulates the employment of foreigners. One of the specific aims of ESA is to facilitate the employment of foreign nationals. The ESA accords jurisdiction to the Labour Court to deal with issues relating to the employment of foreigners and also confirms the sanctions for non-compliance as set out in the Immigration Act.

In addition the Labour Relations Act 66 of 1995, as amended (“the LRA”) is applicable regardless of the legal status of the employee. The LRA governs disputes relating to unfair dismissal and unfair practices in employment and regulates the resolution of these disputes.

The Immigration Act and Regulations

Section 38 of the Immigration Act provides that no person shall employ:

an illegal foreigner;

a foreigner whose status does not authorise him or her to be employed by such person; or

a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.

In terms of section 38(2) of the Immigration Act, a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs.

 

Furthermore, section 49(3) of the Immigration Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence.

The Labour Relations Act

It is important to note that foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the Labour Relations Act 66 of 1995, as amended (“the LRA”).

The law does not declare that a contract of employment concluded without the required permit is void nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of “employing” a foreign national in violation of the law. All of the liability is therefore attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. It is the illegal employment of a foreigner that is prohibited.

Therefore a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit is still an ‘employee’ for the purposes of the LRA. This means that the employee would have recourse to compensation in the case of an unfair dismissal, through the CCMA. Such employees would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act.

 

Referral of labour dispute on the grounds of unfair discrimination to the correct forum.

Referral of labour dispute on the grounds of unfair discrimination to the correct forum.

An unfair discrimination case falls within the jurisdiction of the CCMA for both conciliation and arbitration. Bargaining councils do not have jurisdiction. However for the CCMA to retain jurisdiction the applicant must earn below the monthly threshold of R17 119.42.

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za
Website: www.capelabour.co.za

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