An interesting piece of research was done for the British Medical Journal where it was stated that employers and occupational health staff should recognize the risk when a major down-sizing had taken place. In other studies where 18% of local government personnel were retrenched it was found that there was an enormous increase of cardio vascular disease, and in fact it posed a severe risk to health.

It was quite clear to the employers that there needed to be an enormous input from the Human Resources Departments to build up staff morale and to reassure those remaining staff that their positions were intact and the job would be able to be done.

Our thoughts on Retrenchment:

As Labour Lawyers we have increasing noticed an enormous down turn in productivity after a retrenchment programme and this has to be addressed with immediate effect after the last consultation has taken place. We have devised input from ourselves to help build up the staff morale after the retrenchment programme.

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

An interesting article appeared in our Press recently stating that chronic health conditions are often not as bad as the attendance record of those who are merely malingerers. Sick leave is done on a three-year cycle and in fact an enormous amount of this sick leave is often taken for no reason whatsoever. It should be noted that the legislation recommends a sick certificate for 2 days or more but not for the single day taken from time to time. There is a trend for employers to put into employment contracts the requirement of a sick certificate if a Monday or a Friday is taken off or the day before or after a public holiday. Furthermore, if a trend is noticed it is recommended that employers point this trend out to the employee concerned and follow up with warning letters and with the recommendation of a possible investigation into the condition. The mere warning often corrects the situation and these trends are reversed.

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

W.Tel no.: 021-4233959
Fax: 021-4232105
Cell: 0824338714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

It is extraordinary that even in this day and age, once an employee has concluded a settlement agreement with the employer and the employee afterwards is advised that was not adequate, the matter is still referred to the CCMA or to the Bargaining Council Arbitrations. Unfortunately, on many occasions, the CCMA entertains such a dispute although it is not within their power to do so. Any sort of agreement, no matter how strange or unfair ousts the jurisdiction of the CCMA. It is only competent for the Labour Court to decide whether the agreement has been adhered to or whether it has been unfairly induced. This stretches the oral agreements if there are witnesses to same.

We have seen many occasions at the CCMA where at Arbitration level, the Commissioner has purported to try and entertain a claim of this nature. Once the argument is raised, this is thrown out. Even if the employer has reneged on the agreement and has refused to pay or it has been agreed upon, this does not give the CCMA jurisdiction. It must still be referred to the Labour Court for judgement.

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

An interesting and innovative application was made by Mr Olivier who tried to interdict (stop) MTN Management Services from going ahead with a Disciplinary Hearing. Olivier said that the matter was urgent and asked the Labour Court to stop the hearing because of various circumstances. The Labour Court looked into the problem and said that the circumstances were not special or the applicant could not show that he had suffered any injustices yet and therefore the Labour Court said he had not made out a case for this interim relief. The hearing went ahead.

Disciplinary Hearings have become more and more complicated and management are reminded that if an employee requests outside legal representation at the disciplinary hearing, this must be carefully considered at the hearing before a decision is made, either to allow or disallow the legal representation. Furthermore, a request for further particulars to the letters to attend the Disciplinary Hearing must be carefully taken into account and answered if possible. Any refusal by management to supply the requested particulars, should be debated at the disciplinary hearing before the Chairperson so that the Chairperson can make a reasoned decision as to whether the particulars are required to continue with the disciplinary hearing. If the particulars are required, then the Chairperson should postpone the disciplinary hearing to allow the employee time to consider the documents and particulars that have already been requested.

For further information on the Employment Equity Act 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

Grievance procedure is one of those all important procedures and documents which must be given to all employees at induction. If the company does not have a grievance procedure, it is suggested that same be distributed to the employees asking for their comments and to thereafter finalise a document. This procedure creates an outlet for any complaints that might have arisen and helps the company avoid allegations at a later date such as discrimination or victimisation.

Furthermore, a grievance procedure would enhance industrial peace at the workplace in that it gives a dispute a specific outlet and creates a path allowing any employee to channel his or her angle or disquiet. Over and above all this, should an employee choose not to invoke the grievance procedure but merely resign and thereafter claim constructive dismissal, this would very much hold against that individual and, in most circumstances, would mean that a claim for constructive dismissal is not tenable.

For further information on the Employment Equity Act 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

Download Grievance Form Template

We often receive complaints from employers that their employees have left without notice or have committed some sort of unfairness and they want to refer the matter, either to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council. We always advise employers to rather take internal disciplinary action and if necessary dismiss, but referring the matter to the CCMA or a Bargaining Council is not acceptable.

In an interesting case, the National Entitled Workers’ Union vs CCMA and others, the President of the Union resigned with very little notice and for no good reason. The Union referred the matter to the CCMA who refused to entertain the referral on the basis that the employee’s resignation did not fall under the definition of an unfair labour practice. Thereafter the Union applied to the Labour Court for the ruling of the CCMA to be reviewed. The Union sought an order declaring that the Labour Relations Act was wrong because it didn’t give employers a remedy against unfair labour practises perpetrated against them by the employee. The Labour Court again dismissed the Application for Review on the basis that the concept of unfair labour practise does not include an unfair labour practise committed by an employee against an employer.

The Court specifically stated that employers don’t need any protection against unfair resignation by employees.

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

This promises to be the biggest public sector strike we have ever seen in the country. There was one in 2004, but not that widespread. In essence, government has offered 6% and the Union is holding out for approximately 12%. Although many of the sectors are essential services, such as nurses and policemen, they have threatened to strike as well. This will create an enormous problem especially the essential services of the city. We also will probably see teachers going out on strike and chaos at some schools.

CONSTITUTIONAL COURT JUDGMENTS
(RUSTENBERG PLATINUM MINES):

This case has been argued in the Constitutional Court and we are awaiting the outcome. The initial Supreme Court of Appeal stated that employers have a right to choose their own sanctions for disciplinary offences at the workplace. The case put managerial prerogative back into disciplinary hearings and certainly, as an attorney, many of the decisions made by the CCMA and the various Bargaining Councils. It is argued that the CCMA was not judicial and that it did not have the normal judicial powers. We await the Court’s decision with bated breath.

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

An exit interview is also referred to as a termination interview, separation interview or post-exit questionnaire. An exit interview is usually conducted under termination circumstances such as resignation.

An exit interview is a way in which the employer gathers valuable information as to why the employee leaves the company.

It is the employee’s choice whether or not to participate in an exit interview.

Reasons why an employee should participate in an exit interview:
– By providing constructive feedback to the employer, an employee
will secure a positive reference and the employer may rectify its shortcomings to its benefit.

Reasons why an employee should not participate in an exit interview:
– If an employee is disgruntled and speaks his/ her mind in a
derogatory manner, it will cause more harm than good. In essence,
this will be counterproductive to the process.

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