Can employees escape the consequences of their actions by resigning with immediate effect? There has been uncertainty about an employer’s right to proceed with disciplinary action after an employee’s resignation ‘with immediate effect’ but a judgement of the Labour Court in Cape Town has brought about much needed clarity.
When the CCMA makes an award for the reinstatement of an employee who has been unfairly dismissed or suspended, it seldom goes down well. But what happens if the employer ignores the award?
Employers must exercise their disciplinary powers in a consistent manner. The primary reason for requiring employers to act consistently when instituting disciplinary action or meting out disciplinary sanctions, is to ensure that they do not act arbitrarily. In other words, like cases must be treated alike.
South Africans were expecting that a national minimum wage (NMW) would be implemented on 1 May 2018. This did not happen, but the NMW is still likely to be implemented during the course of this year. We can also expect some other changes to labour legislation. How will this affect employers and employees?
The minimum wage rates in the hospitality sector have been increased with effect from 1 July 2018. The minimum rates are still below the National Minimum Wage (NMW) which is expected to be implemented during the course of 2018. How will employers be affected?
Question: Is a statement of intent by an employee to resign enough to terminate employment?
An employee could claim additional compensation if a suspension is regarded as being unfair. In a well-publicised case, the CCMA awarded an employee five months’ remuneration in addition to the normal pay that the employee received while on suspension.
May an employer deviate from disciplinary procedures in misconduct cases?
The potential impact of the drought on the employment relationship should not be underestimated. It may affect the employee’s right to remuneration if it becomes impossible for employees to work, but it may also lead to problems with employee attendance if employees have to queue for water.
An employee resigns with immediate effect after receiving notice of a disciplinary hearing. May the employer proceed with disciplinary action?
The minimum wages in the Domestic Worker Sector will increase with effect from 1 January 2018.
Some businesses need water in order to function. The prevailing drought in the Western Cape has led to unpredictable interruptions due to the implementation of water rationing measures. Interruptions to water supply can also be due to a variety of other reasons. Contingency plans may be inadequate, which may result in employees not being able to work
Does setting sales targets make it easier to dismiss an employee for poor work performance?
Are Uber drivers independent contractors or employees?
Cosatu gave notice to Nedlac of their intention to embark on protest action on Wednesday, 27 September 2017. The main thrust of this action relates to so-called state capture.
Special care must be taken before dismissing an employee due to disability. What guidelines should one follow if there’s doubt?
May an employer make deductions for damage or loss caused by employee?
The Labour Relations Act protects employees against unfair dismissal. However, our law makes allowance for a contract of employment coming to an end without it amounting to a dismissal.
Question: May face to face conversations be recorded without consent?
As from 1 July 2017, the new minimum wage rates for the hospitality industry sector are increased.
The distinction between incapacity due to ill health (‘medical incapacity’) and disability is from both a practical and legal perspective one of the most difficult situations for an employer to manage.
In certain exceptional circumstances it is acceptable for an employer to rely on written statements only in a disciplinary hearing.
Question: May a chairperson in a disciplinary hearing rely only on written statements?
How should employers respond to the call for nationwide protest action on 7 April?
There could be several reasons for employers ending up having ‘illegal’ foreigners in their employ. The illegal employment of a foreigner is expressly prohibited by the Immigration Act. What does an employer do if a work permit is due to expire, or has already expired?
Considering that the previous increase came into effect on 1 March 2016, one may be forgiven for assuming that the implementation date of the new minimum wage rates in the Wholesale and Retail Sector would be 1 March 2017. But the effective date of the increase this year is 1 February 2017.
Arbitrators will look at the following factors when deciding whether or not a dismissal for ill health was fair.
The minimum wages in the Domestic Worker Sector will increase with effect from 1 December 2016.
Much has been said of “the right to remain silent”. It may be raised by a defendant in criminal law, but does it mean anything in the employment relationship?
Question: Is a contractual notice period of use to the parties in an employment relationship?
The issue of ‘plea bargaining’ arises where there are several perpetrators involved in a disciplinary transgression. The employer needs one or more co-perpetrators to give evidence at the disciplinary hearing. Can one agree to a lesser sanction in return for his testimony against the alleged accomplices?
This coming festive season we will have three public holidays in succession. First there is Christmas Day which falls on a Sunday. This is followed by the Day of Good Will on Monday, the 26th of December. In addition, we will now also be having a public holiday on 27 December 2016.
Wilful and persistent refusal to carry out an instruction often results in summary dismissal. It becomes trickier if the employee has a good reason not to follow the instruction. So, what is a good reason to refuse to work?
Question: Does annual leave accrue during maternity leave?
May employees on probation be dismissed for lesser forms of misconduct?
As from 1 July 2016, the minimum wage rates in the hospitality sector are increased
Earning extra money outside of working hours (also referred to as ‘moonlighting’) may sound like a good idea. But what if the employer objects?
Where employees don’t do what is expected of them, the employer is often faced with a practical dilemma: Do I treat this as misconduct or incapacity?
May an employer use a fixed term contract as a substitute for probation?
How high may the employer set the bar when it comes to discipline in the workplace– may a zero tolerance approach be implemented?
Question: Are employees entitled to be paid for tea and other breaks that occur in the working day?
The assumption is often made that people who do volunteer work are not employees. But are volunteers protected by labour legislation?
May an employee who goes for regular medical check-ups with the doctor claim it as paid sick leave?
1 March 2016 is the effective date for an increase in the minimum wage rates in the Wholesale and Retail Sector.
Social media has become a powerful communication tool, but using it can have far-reaching consequences. Can employees be dismissed for expressing their personal opinions outside the workplace and outside of working hours?
Drafting a proper disciplinary notice can be frustrating. Many employers would simply pass the responsibility to external advisors. Yet, provided a few fundamentals are taken care of, there is no reason why managers could not do it themselves and leave only the most complicated cases for external parties to assist with.
As a rule employers should give newly-appointed employees some time to settle in before deciding on their suitability for the job. But would it be fair to expect an employee appointed to a high level job to ‘hit the ground running’?
Must a fixed-term contract with an employee have an end date?
Time spent travelling between clients and the workplace during the working day would normally be regarded as working time. But what about time spent travelling to work, or time spent at the workplace before commencing with normal daily tasks?
Question: Are tea intervals paid or unpaid?
Question: If an employee is absent without leave or good reason, may an employer reduce the employee’s annual leave entitlement?
Question: Does annual leave accrue during maternity leave?
Question: An employee makes many mistakes, but it is not clear whether she is unwilling or unable to do the job. Do I treat it as misconduct or incapacity?
Question: Is it advisable for an employer to have an internal appeal procedure?
Question: Would the following clause in the employment contract be valid: “Your hours of work can be changed, provided you are given 12 hours notice of such change”?
Do employers still have to deduct emolument orders from employee salaries?
Until recently, our labour legislation has made no reference to part-time employment. What has gone almost unnoticed is the specific introduction of the protection of employees that are employed on a part-time basis in contrast to fixed term contracting that has received a lot of publicity recently.
There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched.
The workplace is not a democracy. One of the implied terms of the contract of employment is that of subordination – the employee has to submit to the authority of the employer provided this is exercised lawfully and reasonably.
How will an organisation’s upcoming skills development submission impact on its future BBBEE ratings and what steps can be taken to maximise their scores in this element?
Does a job applicant need to disclose her pregnancy status to an employer? May an employer take disciplinary action against an employee who, at the time of appointment, failed to disclose her pregnancy? Or lied about it? May an employee who is on maternity leave be dismissed for genuine reasons relating to performance, disciplinary action or redundancy?
One of the most important changes to the Labour Relations Act , which came into effect on 1 January 2015, is the added protection afforded to employees on fixed term contracts. While some employers and employees are not directly affected, the impact will be far reaching and employers are encouraged to review their current contracts and practices to ensure compliance.
Is it always necessary to go through onerous disciplinary or incapacity procedures before terminating an employee’s service? The short answer is no. Unfair dismissal protection only applies when an employee is dismissed.
The recent power outages have again raised the question as to whether employees can insist on payment of their salaries or wages for the duration of such outages.
Imagine a situation where an employer does not have job vacancy, but agrees to accommodate a person as a favour. The person is employed with the clear understanding that if things do not work out, the contract may be terminated without the employee having recourse to the remedies afforded by the Labour Relations Act. Can this be done?
Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions?
Do medical certificates issued by traditional healers have to be accepted by employers? While there does not appear to be an obligation to do so at present, indications are that it will be soon become a reality.
Can lapsed warnings be taken into account when an employee faces disciplinary action?
The Employment Equity Amendment Act of 2013 has finally come into effect on 1 August 2014. Not only large employers are effected and some provisions apply to all employers, irrespective of their size. The Department Labour is likely to be very active in assessing employers’ compliance in the months to come.
The earnings threshold will increase to R 205 433.30 per year with effect from 1 July 2014. This has favourable implications for employees that previously earned in excess of the threshold, but will fall under the threshold as from 1 July 2014.
How does an employee’s absence due to illness affect overtime pay?
Dealing with alcohol and drug abuse in the workplace is not easy. At the one extreme you might have a driver who drinks heavily on a particular occasion while on duty, and then drives and crashes a company vehicle while under the influence of alcohol. At the other extreme, you might have a clerk who occasionally smells of alcohol at the workplace, but approaches the employer of his own free will for assistance with alcohol dependency. While these situations clearly require different approaches, there could be a number of situations in between that each requires a slightly different approach.
When employers want to terminate a fixed-term contract before the expiry date, it would seem to make sense that this could be done as long as they pay the employee for the balance of the term. However, a recent Labour Court case involving the Office of the Presidency has highlighted the fact that premature termination of employment may amount to an unfair dismissal.
With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (often referred to as the “youth wage subsidy”). It appears to be a very simple process, essentially administered by SARS.
The date by which employers have to submit their Workplace Skills Plan (WSP) and the Annual Training Report (ATR) to their SETA’s is fast approaching. It has been brought forward to 30 April 2014 (having previously been 30 June of each year).
Question: Can annual leave be forfeited?
With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (ETI), often referred to as the “youth wage subsidy”. It appears to be a very simple process, essentially administered by SARS.
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What if a fellow employee does something that causes the employer harm – is there an obligation on his/her collegues to report this to the employer?
Just before she has to attend a disciplinary hearing, your employee submits a medical certificate stating that she is unable to attend the hearing because of some undisclosed illness. What should you do?
In the previous article we discussed recent developments is case law relating to disputes about ‘benefits’. We pointed out that such disputes that would previously have been referred to the Labour Court because it related to remuneration, may now be referred to the CCMA on the basis that the employer has exercised its discretion unfairly. But there is another potential obstacle that needs to be considered – this is the argument that the CCMA does not have the jurisdiction to arbitrate on so-called ‘disputes of interest’.
Employers have been avoiding liability for unfair labour practice claims relating to “benefits” for some time. It has been argued, often successfully, that the CCMA lacks jurisdiction where a dispute about benefits relates to remuneration. This and other barriers have since been eroded significantly.
Employees are not necessarily the only ones to blame for the abuse of sick leave in South African workplaces. It is a known fact that some doctors earn an easy fee by issuing medical certificates without examining the employee. Most employers assume that they simply have to accept medical certificates at face value.
It sometimes makes sense for companies to allow certain employees to continue working after the agreed or normal retirement age. The question is this: How does one go about terminating employment during that period?
May an employee withdraw a notice of termination and must the employer accept the withdrawal? And is there a distinction between desertion and resignation without proper notice?
A study showed that 80% of employees were dissatisfied with the performance appraisal system. Many managers also find it an extremely stressful process, so why not just do away with performance appraisals?
Question: Does an employee have a right to an annual bonus?
It is a misconception that companies can only be reimbursed for training provided by external SETA-registered institutions. Companies can in fact also be reimbursed for structured internal, day to day training as well as Learnerships offered.
The Bill seeks to rectify anomalies and clarify uncertainties that have arisen out from the interpretation of the EEA in the past decade. We will also see the expansion of the powers of the Labour Inspectorate and the jurisdiction of the CCMA.
Recent newspaper reports imply that the Labour Appeal Court has now decided that employers have to accept ‘sick’ certificates from sangomas. This is not the case.
The DTI recently published a number of proposed amendments to the Broad Based Black Economic Empowerment Act for comment, which if implemented will have a significant impact on organisations, making it more onerous to retain or improve their ratings.
Question: Is an employee on a fixed term contract only entitled to proportionate sick leave?
In a society with diverse religious beliefs employers are challenged not only to be tolerant, but also to accommodate that diversity in the workplace. To what extent must religious beliefs and practices of employees be accommodated?
Generally an employee may not be dismissed for refusing to sign a contract of employment. But are there circumstances where the employer can take stronger action short of dismissal?
Question: If an employee is absent due to illness for a brief period (no more than 2 days), may the employer insist on a medical certificate?
Finally we have clarity about the nature of the forthcoming amendments to the LRA and BCEA.
Question: May an employer change a policy without the agreement of employees?
When a trade union approaches an employer with the news that its employees have joined the union, one can understand that some employers might experience a sense of betrayal. But is it as bad as it seems?
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May an employer pay its employees a flat rate (e.g. including pay for overtime worked, work on Sundays and public holidays, sick leave, family responsibility leave)?