We have been bombarded from firms large and small, across the country, as to whether they need to pay their staff when there is a black-out. The question is obviously loaded and clearly the desired answer is not always forthcoming.

The electrical outages have created havoc in the employment arena. Obviously the losses incurred by small and large businesses will be documented in the future but these losses in fact are compounded by the ongoing salary and wage bills for unproductive workers. The Labour Law has not had to deal with events of this nature and innovative Trade Unions and Employers are striking agreements in order to alleviate some of the losses incurred by both the workers and management. These agreements have been innovative in the sense that they are trying to ensure that management have a minimum payment to make as workers are not expected to be at the workplace without payment. Agreements struck are recorded in writing and signed by the parties. Invariably these agreements are entered into between management and unions and not individual workers but there is nothing stopping small businesses meeting with their staff on a one to one basis and trying to fashion agreements covering outages. Many of these agreements put minimum times that the workers would have to be paid if they did report for duty and these agreements ensure that workers are able to leave the premises if the outages expect to be in excess of 2 hours.

Obviously the management of Eskom would be well advised to ensure that communication of future outages is properly structured. A clear example of this would be a factory being advised that a particular day would affect them and they could advise their staff not to come in on that day and not incur the travelling expenses and wage bill. The inability of Eskom at this stage to properly structure their own administration has led to a lot of heartache and greater losses than is absolutely necessary.

There appears to be a rumour amongst small business owners that if their staff are unable to perform their duties because of power outages then they need not be paid. This is wrong and in fact is criminal. Staff who are present at work are entitled to be paid regardless of whether the electricity is on or off. There are certain Bargaining Councils which have structures within their agreements that allow management to give one shift notice of the fact that they will not need their workers for the next shift. However, if this agreement is not in force then an agreement between management and workers should be entered into and reduced to writing and signed by both parties.

There are various types of collective agreements and although the Labour Relations Act does not distinguish between different types of agreements, the agreements are obviously different in accordance with the circumstances they wish to govern. In essence an agreement governing the down time because of electrical outages would obviously refer to wages and conditions of employment and would refer to a particular period of time. These agreements are very different to recognition agreements between employers and Trade Unions and are in fact known as substantive agreements because they deal with terms and conditions of employment such as salaries during a particular period. It is recommended that all employers get together with their staff whether they employ one person or a thousand. They need to discuss and finalise an agreement which governs their particular set of circumstances when they are faced with a power cut. In order to avoid possible Dismissals for Operational Requirements the staff must be able to take part in a process where they can structure the staffing requirements over this power shortage period to ensure that everyone is able to have a fair approach to the resolution of conflicting needs and wants.

The parties can agree after negotiations that a shift system would be introduced allowing staff to go off shift in the electrical blackout. These agreements can have an expiry date on them so that the parties can come back to the table to negotiate variations, changes and new agreements. Obviously if a Trade Union is active at the workplace the first port of call would be to engage with the shop stewards who would ensure that union organisers are brought into the discussions. Should a union sign a collective agreement with management then all the members of that union would be bound by that agreement.

The agreement struck should contain clauses to ensure that if there is a dispute in terms of the agreement or a dispute with regard to the interpretation of the agreement then that would be approached on a structural basis. Any disagreement would be referred to Arbitration either privately or through the Commission for Conciliation Mediation and Arbitration and structured dispute resolution clause within the agreement would have certain time limits attached to it. It is furthermore recommended that agreements of this nature would outlaw industrial action such as strikes and lock outs and resolutions would be governed by adjudication by a third party. To have industrial turmoil coupled with the electrical outages would be counter productive.

Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za

In the field of employment law, the general rule applies that before any decision is made, the employee must be heard. The Latin phrase, audi alteram partum, means both sides must be heard. When in doubt, it is always better to have a disciplinary hearing or at least a discussion before a decision is made.

There is however an exception to this rule. When, in certain circumstances, a decision is made without affording the other person affected, an opportunity, it normally does not necessarily make the decision invalid if the opportunity is afforded at a later stage.

In other words, the employer can cure the deficient hearing through appeal or a new hearing or through a hearing in the first instance. There must be no disregard for the fundamental principles of justice and that it can be corrected.

In certain urgent or emergency situations, a decision can be made, thereafter a disciplinary hearing should be heard to either validate the decision or to reverse it. Obviously, if there is no urgency, the Courts have often said that natural justice has to be observed beforehand.

In an interesting Court Case, Semenya & Others v CCMA, Labour Appeal Court said that the opportunity to state the case after the dismissal was acceptable. Facts of the hearing were pointed out to the employer who then decided to have a proper hearing to revisit the decision. The employee refused such an opportunity and she did so at her own peril. Although the employee said that this offer was merely lip service, the Court found that an offer of a fair hearing chaired by an independent chairman of the employee’s choice, would not have been rejected. This case has been recorded in many other judgments and although it is a risky set of circumstances, a mistake such as an inadequate hearing or no hearing at all, can be rectified. Obviously the disciplinary hearing to be held after the decision to dismiss, has to chaired by someone who had nothing to do with the original decision and who was completely independent.

Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za

In an article by Sarah Womack in the Telegraph, it appears that England has exactly the same problem we have in the South African Labour Legislation. According to the Equal Opportunities Commission, there are numerous instances where employers have chosen other reasons to try and dismiss employees who report that they are pregnant.
In this day and age, most employers are fully aware that to dismiss simply for being pregnant is illegal in terms of all the Labour Legislation.

In a period of six years, there were 1000 pregnancy-related unfair dismissal claims registered in England and Wales. Although we haven’t kept statistics in South Africa, it appears that we have much higher numbers. In England, the average compensation award for the women dismissed was approximately 6 months salary but in South Africa, one must note that in terms of Section 187 of the Labour Relations Act No. 6 of 1995 the dismissal of an employee because of pregnancy, intended pregnancy or any reason related to pregnancy is deemed to be automatically unfair and the onus shifts to the employer to prove why the dismissal was fair. The Courts have taken this so seriously the Legislation has specifically stated that the claim could be for anything up to 2 years salary. As of late, we have noticed our Courts coming down very hard on employers who have discriminated against pregnant employees.

Unfortunately, pregnant women have on occasion hidden behind this pregnancy when there have been other reasons for the dismissal and this has created enormous problems for 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

A vexed question of law often has been – who can chair a disciplinary hearing?

Obviously, any person who has been involved in the investigation has knowledge of the facts and of the “charges”, is disqualified from being the Chairperson. The cornerstone of competence of the Chairperson is one of dependence and any sort of bias might be interpreted in favour of the employee and the Chairperson should recuse him or herself. The Chairperson should not have been involved in the allegations, the dispute, the investigation or any of the facts leading up to the disciplinary hearing.

Furthermore, the chairperson should be chosen in terms of the Disciplinary Code of the business and if there is no Disciplinary Code, it should be someone who could be deemed to be impartial. There is nothing wrong in appointing an outsider, especially one who is qualified in Industrial Relations or Labour Law. Remember, if the procedure or findings are challenged by the employee concerned, then that chairperson might have to appear at the Arbitration to justify the procedure and/or recommendations. The chairperson should be warned that this appearance at the CCMA or Bargaining Council flows on from his or her acceptance of such a brief. Over and above this, the recommendations given by the chairperson should be done in writing and such recommendations should be furnished to both the employee and the company. These recommendations will be subject to close scrutiny and if the dismissal or otherwise is challenged, then these recommendations become part of the bundle of documents used at Arbitrations.

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

Refusal to Accept Reasonable Alternative Offer

In terms of Section 189 of the Labour Relations Act, the Employer is obliged to try and find alternative positions for the people who are occupying positions that will in due course become redundant. If there is a reasonable and similar position to the one held by the employee affected, and this position is offered at a similar salary, then the refusal to accept same will negate the necessity to pay a severance payment to that employee.

The refusal must be justifiable and reasonable in order to lay claim once again to the severance payment. The Labour Court has come forward on a few occasions to state that there is no necessity to pay any severance payment (even the one week’s pay per completed year of service) if in fact the offer of alternative employment was fair and reasonable in all the circumstances. Please note that even a transfer from one region to another could be deemed to be a fair and reasonable offer.

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

After an employee has left your employ he/she normally has 30 days in which to refer the matter either to the Commission for Conciliation, Mediation and Arbitration or the relevant Bargaining Council. Obviously, this referral could be done after 30 days but then the employee has to apply to the Commission to ask them to condone the late referral. This Application is known as a Condonation Application and must be done in writing and a copy must be sent to the employer. Normally a copy of this condonation application is sent with the referral and you, as the employer, need to carefully read this application for condonation if you are unhappy with any part of it, it is incumbent upon you to oppose this condonation application. The opposition to the condonation application must be done in writing and by way of an Affidavit and sent to the Commission with a copy being sent to the ex-employee. This opposition to the condonation application must be made within 14 days after receipt and should contain reasons as to why the merits of the employee’s case are not good. Should anyone receive such an application with a condonation application it would be worthwhile to take advice as invariably we are successful in destroying the entire application by the opposition to the condonation.

It should be noted that as Employers, they are largely responsible for presenting their own Arbitrations. Invariably, we as lawyers are allowed to come to the Arbitrations and to represent our clients. However, on some occasions, when this is not done, the Arbitrator makes a decision on the evidence that is presented before him or her. This decision is not appealable and is final and binding. On very few occasions, the Employer, if unhappy, can take the matter on review to the Labour Court. It should be noted that review is not an appeal and the only “bite at the cherry” is allowed at the Arbitration. It does not help to say that you have witnesses that could prove certain events. The witness must be present. It must be remembered that the Arbitration is the last venue. It is also important for the employer to understand that invariably they bear the onus, i.e. they must start giving their evidence first and the evidence must be full and clear. It must also be understood that this evidence should cover and oppose every eventuality that the employee might state, even if that eventuality is a lie. Employees invariably have Union representation who will certainly test the employer’s case from every angle. It is recommended that each and every employer obtain legal advice before entering into an Arbitration no matter how trivial the case might be.

For further information or 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