1. If an employee resigns, he/she is required to work out either the contractual notice period or the minimum notice periods set out in the Basic Conditions of Employment Act (BCEA.)

2. The employer may elect to pay an employee in lieu of notice. The parties may also agree in writing that the employee will not be paid for not working out the notice period if, for example, the employee wants to leave earlier than the end of that period.

3. Sometimes employees resigning with immediate effect. Although resignation is a unilateral act that requires no acceptance by the employer to be effective, summary resignation, and the refusal to work out a notice period, is a breach of contract or a breach of the provisions of the BCEA.

4. The employer may elect either to accept the breach and cancel the employment agreement and, if applicable, claim damages arising from the breach of contract, or hold the employee to the contract (or BCEA provisions) and require the employee to work out the notice period.

5. If a disciplinary hearing had been scheduled prior to a resignation on notice, the employer can still proceed with the hearing because the employee remains employed, and subject to discipline, until termination of the notice period but the employer and employee can agree in writing that the pending disciplinary hearing will be cancelled.

6. If an employee is resigning with immediate effect, in the face of a pending disciplinary hearing, and the employer elects to hold him/her to the contractual or statutory notice period, the employer will be entitled to proceed with a pending disciplinary hearing and an employee who refuses to attend such a hearing, does so at their peril.

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 common occurrence that employees present fraudulent, false medical certificates to an employer to justify their absence from work and to be paid for a sick day.

Your rights as an employer

An employer is always entitled to question the validity of a medical certificate, especially if it appears to be dubious.

The employer must find evidence that the medical certificate issued is false. The direct approach would be to contact the person indicated on the certificate by phone or a personal visit to confirm whether the person is a medical practitioner and issued the certificate. It could be that the employee bought the false medical certificate from someone who is not a doctor at all, or an originally genuine certificate could have been altered unlawfully.

Once an employer has enough proof, substantiated by witnesses, the employer can suspend the employee and issue a notice to attend a disciplinary hearing on the grounds of submitting a fraudulent, false medical certificate to the employer.

To prove guilt in a disciplinary hearing the employer must show:
• that the medical certificate was false
• that the employee knew it was false
• that the employee submitted the false medical certificate to mislead the employer.

Where an employee is found guilty of submitting a fraudulent medical certificate, summary dismissal is warranted.

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

Where derogatory and racial language is used in the workplace, the employer bears the onus to prove that the language used was objectively derogatory.

Collecting evidence

However, the employer will bear the onus to prove that the employee uttered the derogatory word/s.  Employers must lead sufficient evidence that the words were indeed used, and moreover, that the words are objectively offensive. This may be done by calling the victim of the insult to a disciplinary hearing and giving him/her as well as the accused an opportunity to state their version of events.

The disciplinary hearing

The chairperson of the disciplinary hearing needs to make a written finding and recommendation whether the circumstances are such that a continued employment relationship would be intolerable. The chairperson is also to take cognizance as to whether the employee has shown remorse and apologised for his/her conduct. You can read more on disciplinary hearings here.

The Judgement

Racism in the workplace is unacceptable, derogatory, unjustifiable and would generally warrant a sanction of dismissal.

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

Vicarious liability is the holding of a person or entity responsible for damages or harm caused by someone else.

Most employers are unaware that they can be held liable for the actions of their employees. Vicarious liability is where someone is held responsible for the actions or omissions of another.

When does vicarious liability apply?

The requirements for the vicarious liability of an employer are threefold:

• An employment relationship
• The commission of a delict (wrongful act), and
• The delict must have been committed within the scope (sometimes course and scope of employment).

When is an employer vicariously liable?

An employer is vicariously liable for the wrongful conduct, albeit an act of sexual harassment or any other discriminatory conduct, towards an employee, which was committed in the course and scope of his/her employment or while engaged in any activity incidental thereto.

If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

What are the steps an employer can take to void vicarious liability?

The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct. So what practical steps can employers take to void vicarious liability for the acts of their employees? The most important thing that the employers can do is to ensure that they have taken all reasonable steps to prevent such acts or omissions from occurring. For example, maintaining an up-to-date equal opportunities policy and providing anti-discrimination training to staff serve to demonstrate to demonstrate an active commitment on the part of the employer towards combating discriminatory practices in the workplace. This would then reduce the likelihood of an employer being held vicariously liable for any discriminatory acts committed by its employees.

If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practical to ensure that the employee would not act in contravention of this Act.

The employer needs to take action with regards to the sexual harassment complaint.

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

The Basic Conditions of Employment Act (BCEA) stipulates that an employment contract can only be terminated on notice of not less than:

• One week , if the employee works for six months or less;
• Two weeks, if the employee works for more than six months, but not more than one year, and
• Four weeks if the employee-
• Works for one year or more; or
• Is a farm worker or domestic worker who works for more than six months

Does the employee pay?

It happens often these days that the employees end their employment contracts within 24 hours.  This leaves the employer stranded without and employee to do the work the employer need and the employee is in breach of contract.

How legal is it for an employee to walk out with 24 hours’ notice?

The answer is that it is totally illegal. Nowhere in the BCEA does it say an employee can terminated his employment contract on 24 hours’ notice. So the employer must handle this as a breach of contract.

Payment on termination is regulated by the Basic Conditions of Employment Act, 1997 (No.75 of 1997) Chapter 5: Termination of employment. This section does not apply to employees who work less than 24 hours per month.

Notice of termination of a contract of employment given by an employer must not be given during any period of leave to which the employee is entitled in terms of chapter 3. Notice may not run concurrently with any period of leave to which the employee is entitled in terms of Chapter three, except sick leave.

Therefore, an employer may not give notice during any leave period, including sick leave, normal leave, family responsibility leave or maternity leave.

A notice period may also not run during normal, family responsibility or maternity leave, regardless whether the employee resigned or not. However, notice may run concurrently with sick leave, if the employee gave notice (resignation). If the employee therefore becomes sick during the notice period, after he resigned, the notice period will continue running.

If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and the employee agree otherwise.

What does this mean for the employer?

In order to protect itself from this, the employer must cover itself in its employment contracts. It would be advisable to include a clause that says, if an employee terminates the contract without giving the proper notice, the employer will deduct an amount equal to the period of notice the employee did not give from the final payment due to him. By including this in the employment contracts, it becomes part of the agreement between employer and the employee. It also becomes a condition of employment, which means the employee is legally bound to follow this, and if he does not, the employer can deduct the amount.
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

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

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?

3. What was your relationship with your manager like?

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

5. What did you like most about your job?

6. What did you dislike most about your job?

7. 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

2. Plan and prepare for the session

3. Exit with grace by focusing on the positive.

4. Provide useful facts

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