About Unfair Discrimination at Work

No person may unfairly discriminate, either directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

For more information or assistance related to unfair discrimination at work please contact a Labour Consultant at Cape Labour using the details above.

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Employment Equity Act

Every employee, therefore, has the right to join – or not to join a union, and if the employee does join a union, to participate in its lawful activities.
This right extends to ‘every employee’, including applicants for employment. It follows that no employer may forbid an employee to join a trade union on any ground, even if members of a trade union are incompatible with the employee’s status or function as an employee.

For further information on any labour related matters, you can contact
Bernard Reisner:

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

If an employer is dishonest in the workplace, it can cause a breakdown in the trust relationship between the employee and the employer. However, it is essential that the employer convene a disciplinary hearing to prove that the employee’s dishonesty caused a breakdown in the trust relationship.

It is not good enough for employers to simply say there has been a breach of trust. The employer has to lead evidence to prove the breakdown. If not, the employer may run the risk that it may loose the case at the CCMA or appropriate Bargaining Council, even though the employee was dishonest.

For further information on any labour related matters, you can contact Bernard Reisner:

W.Tel no 021 423 3959
Fax 021 423 2105
Cell 082 433 8714
E-mail bernard@capelabour.co.za
Website www.capelabour.co.za

An employer who suspects an employee is guilty of misconduct can hold a disciplinary hearing to establish whether or not the employee is guilty and, if he is, to decide on an appropriate penalty. However, sometimes it takes time to properly investigate the incident. If the issues are serious, employers may want to suspend the employee pending the outcome of the disciplinary hearing.

There are minimum standards to ensure fair dealing between employer and employee.

First, the employer must have a justifiable reason to believe the employee is engaged in serious misconduct.

Second, there must be an objectively justifiable reason to deny the employee access to the workplace based on the integrity of a pending investigation or another relevant factor that would place the investigation or the interests of affected parties in jeopardy, i.e if there is a reason to believe the employee will interfere with witnesses or endanger their safety or wellbeing.

Third, the employee must be given an opportunity to state a case before the employee makes a final decision to suspend. This does not have to be a formal hearing.

For further information on any labour related matters, you can contact Bernard Reisner:

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

We have seen many cases recently where sexual harassment of one staff member by another has led to a successful claim against the employer. This concept obviously can go one step further in that the physical, emotional and psychological safety of your staff is often the responsibility of the employer.

It becomes the employer’s responsibility if the staff point out imminent danger. We see in the current press that ambulance staff have agreed to keep on serving despite armed robberies. It might be in the interest of the employer to hire extra security staff and allow the ambulance drivers to have access to armed response.

Even more dangerous is the security company scenario where their staff have been hired to avoid danger. If the danger is caused by the security staff themselves, this could in turn lead to a claim against the employer even if it can be shown that the security staff did not act within their mandate or if harm was done outside their working hours. As we step into a new realm of damages claims against employers, it is suggested that contracts be entered into to try and avoid these hazards including better and updated insurance.

For further information on any labour related matters, you can contact Bernard Reisner:

W.Tel no 021 423 3959
Fax 021 423 2105
Cell 082 433 8714
E-mail bernard@capelabour.co.za
Website www.capelabour.co.za

When it comes to absenteeism and desertion, one of the principal obligations of an employee to a contract of employment is to render his / her services to the employer, from the agreed date and for the duration of the contract. This obligation requires that the employee present himself/herself at his / her place of work during the times specified in the contract.

Any unauthorized absence (no medical certificate or acceptable reason provided) from work during the specified working hours, if continuous, and depending on the circumstances of the absence, will constitute either absenteeism or desertion. The elements which will influence whether a period of absence from the workplace will constitute absenteeism or desertion are:

• The length of and reason for the absence, and
• The intention of the employee (by considering the circumstances surrounding the absence):

– Was an attempt made to contact management?
– Was alternate employment sought?
– What did fellow employees feel was his/ her intention?
– What did his / her family say to questions on the whereabouts of that employee?

Difference between Absenteeism and Desertion:

(a) Absenteeism

With absenteeism, the intention of the employee is to at some stage return to his/ her place employment. The seriousness of absenteeism will depend primarily on two factors:

• The length AND reason for the absence, and
• The nature of the job being done by the employee (translated into the actual or potential effect which this absence could / did have on the business.)

As a general rule, the longer the period of absence, the more serious is such an absence.
Where the effect of an employee’s absence from work was such that it either resulted in the organisation suffering undue losses or could jeopardise the jobs of other employee’s, then dismissal would be appropriate. Where the absence is such that it amounts to an inconvenience to the organisation, but is not “life –threatening” to the organisation, then dismissal would not be an appropriate sanction. A more appropriate sanction would be written or final written warning, depending on the facts surrounding a particular dismissal.

(b) Desertion

Desertion refers to the situation where an employee leaves his / her place of employment, without permission, with the intention of not returning. General principle an employee could be charged with desertion if he / she was absent from work, without notice, for more than four working days, and management could show that his/ her intention was not to return to work, assuming that a number of precautionary steps had been taken.
(i) The employer must make reasonable attempts to find out what has happened to
the employee. This would include, where practical, sending someone to the
employee’s house to enquire after his/ her whereabouts.

• Alternatively, a registered letter is sent to the employee’s address, where
he/she is informed that his/her conduct amounts to desertion. He / she is
requested to report to the employer on a certain day at a designated time
to attend a disciplinary hearing concerning his/ her conduct.

(ii) The employer should hold a hearing to give the employee an opportunity to
explain his/ her behaviour. The employee would then be disciplined based
on the outcome of the hearing.

(c) The seriousness of desertion

As a summary, when it comes to absenteeism and desertion from the workplace, as a general rule the longer the period of time, the more serious the offence will be.

For further information on any SA labour law related matters, you can contact Bernard Reisner:

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

The employer is obliged to comply with the labour law requirements of substantive and procedural fairness first before it may be in a position to lawfully recover monies from you that are not regulated by statute.

Salary Deductions:

Section 34 of the Basic Conditions of Employment Act No 75 of 1997 provides that:

• An employer may not make any deductions from an employee’s remuneration unless:

a) Subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement.
b) The deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

• A deduction in terms of subsection (1) (a) may be made to reimburse an employer for loss or damaged only if:

a) The loss or damaged occurred in the course of employment and was due to the fault of the employee
b) The employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made
c) The total amount of the debt does not exceed 25 percent of the employee’s remuneration in money.

For further information on any labour related matters, you can contact
Bernard Reisner :

W.Tel no 021 423 3959
Fax 021 423 2105
Cell 082 433 8714
E-mail bernard@capelabour.co.za
Website www.capelabour.co.za

What is a training layoff?

A training layoff is a temporary suspension of work of a worker or group of workers that is used for training purposes; workers remain employed during the training layoff period and are paid a training allowance; participation in the training layoff scheme is voluntary and is an alternative to retrenchment; training is flexible but linked to the skills needs of the employer; the scheme is aimed at positioning workers and employers to take advantage of the next economic upturn and to save jobs and enterprises where possible.

Who qualifies for a Training Layoff?

Workers earning up to R180 000.00 per year and who are facing possible retrenchment; businesses that are in distress due to the economic crisis and that may benefit from the short term relief and be able to re-absorb the affected workers at the conclusion of the training layoff.

What is the CCMA’s role in the Training Layoff Scheme?

All requests to participate in the Training Layoff Scheme must be made via the CCMA; The CCMA recommends participation in the Scheme and facilitates the conclusion of a Training Layoff Agreement; The CCMA monitors and reports on Training Layoff Agreements to the Department of Labour; SETA’s facilitate the provision of Training.

How do i access the Training Layoff Scheme?

Complete a request to participate in the Training Layoff Scheme form and submit to the CCMA. If you and the other party have reached a written agreement on a training layoff, include it with the request. The Training Layoff Scheme may become an option during the facilitation or conciliation process, whereby the facilitator will assist the parties to reach an agreement on participation in the scheme.

For further information on any labour related matters, you can contact Bernard Reisner:

W.Tel no 021 423 3959
Fax 021 423 2105
Cell 082 433 8714
E-mail bernard@capelabour.co.za
Website www.capelabour.co.za

It is a myth that an employer may not amend the terms and conditions of employment. We have many queries from our clients asking us whether medical aid, car allowances, travel allowances, etc. can be changed.

These changes can take place if the employer can show that there is a good reason for the change and if the employer can also show that there has been a properly constituted discussion with regard to these changes. In essence, the employer’s conduct in effecting the change must show that the employer’s discretion is fairly exercised. If the discretion is exercised unfairly then the employee has the unfair labour practice right and may refer the matter to the Commission for Conciliation Mediation and Arbitration (CCMA), if however the employer has consulted and has explained why the change is necessary then the employee’s only right is to bargain for the increase and if unhappy may withhold his/her labour only. There is no right to go to the CCMA over the provision of benefits.

In order to understand this properly employers must understand that the benefit can be tampered with and indeed lowered for good reason if the proper discussion had ensued beforehand.

Since November 1996, when our new Labour Relations Act was brought into being, we saw the start of the Commission for Conciliation Mediation and Arbitration (CCMA) and since then we have seen complaints going to this Commission at the rate of 500 per day. The majority of these complaints have been about single unfair dismissals and the largest sector affected by this, has been the retail sector. In many cases, the employer cannot be represented by a lawyer and even in some cases where they could be represented by a lawyer, such representation would be far too expensive.

It is therefore necessary for each and every business owner (employer) to understand how the Arbitrations work and how to properly defend themselves at the CCMA and Bargaining Councils. Every employer must understand that the CCMA conducts a dispute resolution on a two-stage basis, i.e. the first hearing is conciliation where a commissioner tries to mediate between the two arguing parties, but if these mediation fails, the matter goes on to arbitration. At the arbitration, the Commissioner (Arbitrator) makes a final decision and this decision could adversely affect the business. There is no appeal against this decision and only in very limited circumstances, a review. In terms of Labour Legislation, the Arbitrators have enormous powers and they have in certain circumstances, the ability to reinstate staff into their old positions and even give them awards, sometimes equal to 12 months’ salary (or any lesser amount the Arbitrator might deem fair). If in fact the employer has dismissed for a good reason and has followed the proper process effecting the dismissal, then there is no reason why the employer should lose at the arbitration level at the CCMA. The employer merely has to understand the process and have a small understanding of the rules of the process and effectively bring proper evidence to the CCMA. In certain circumstances, there might be technical problems and then it would be worthwhile going to a lawyer for advice and even representation.

However, the majority of cases are reasonably straightforward and simple and the employer has the ability to represent him or herself. It is necessary to ensure that prior to the arbitration, to ascertain exactly what the nature of the dispute is about. This can be done at the conciliation stage. It is also necessary to ensure that all the paperwork that has led to the dismissal is properly copied and distributed to the witness, the employee (or his or her representative), the arbitrator and one for you. Once you have four copies of all the paperwork, including documents such as warnings, notification to attend disciplinary hearing, minutes of disciplinary hearing and findings of disciplinary hearing, this will make the arbitrator’s job far easier in finding that the dismissal was both procedurally and substantively fair. 2. /

It is also necessary to ensure that all the witnesses you use at the disciplinary hearing are present at the arbitration as you cannot be heard to say that you will bring the witness at a later stage or only if necessary. An employer must remember that you have to show the arbitrator that there was a good reason to bring the employee to a disciplinary hearing and that you followed a very fair process at that disciplinary hearing. It might even be necessary for you to bring the chairperson of that disciplinary hearing to the arbitration.

You can do no harm by getting some advice prior to your going to the CCMA for the Arbitration. Invariably, a two-minute discussion with a labour lawyer or an official at the Department of Labour can give you some tips as to how you would approach that particular case. These tips need not cost you anything and will certainly save you a lot of trouble at the CCMA.

It is also useful to check with the CCMA on a regular basis whether the case has been given a case number and if so, whether there has been allotted a time and date for a hearing. There is a Case Management number, a Call Centre, at 0861-161616 which should help you to ascertain where about in the system your case is. If you are not present for your case, this could lead to a negative award against the employer.

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