News

AVOID EMPLOYMENT EQUITY SANCTIONS

on Tuesday, 27 September 2016. Posted in News

The Employment Equity Act 55 of 1998 together with the Employment Equity Amendment Act 47 of 2013 seeks to necessitate a robust constitutional objective: Every workplace should be broadly representative of the people of South Africa. The Act aims to achieve this by implementing affirmative action measures, promoting equal opportunity, ensuring fair treatment and eliminating unfair discrimination. The legislation contains provisions of which designated employers must comply with in order to avoid heavy fines and sanctions.

Are you a designated employer?

A designated employer, according to the Act, is an employer who employs more than 50 employees, or an employer who employs less than 50 employees but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of schedule 4 of the Act.

How do I comply?

Legislative provisions require that a designated employer must consult with their employees and respective trade unions in order to identify employment barriers and the degree of underrepresentation in respect of policies, practices, procedures and work force. The designated employer must then conduct an analysis which precedes the preparation of an employment equity plan.  The initial development of an equity plan must be submitted in a report to the Director General of the Department of Labour on the 1st of October, and subsequent reports must be submitted once a year by the 1st of October. The Act requires that a designated employer must assign a manager to monitor and implement the plan.

Non-Compliance

In the event of non-compliance or deviation the concerned managers will be held accountable and action can be taken against him or her for non-compliance. Additionally, the designated employer is not relieved of their obligations in terms of the Act.

If a labour inspector finds that there has been failure to comply with the legislative provisions, he/she may issue a compliance order, which subsequently must be displayed in an area accessible for all employees to read (embarrassing!!).

Non-compliance with a compliance order will result in the order being made an order of labour court.


The following table sets out the amended fines will be imposed for non-compliance with the Act.

equity  

In order to get off the starting blocks for EEA compliance, the first step is to arrange for your employment practices to be aligned with the Act. This includes recruitment procedures, advertising, selection criteria, appointment processes, job classification, remuneration, employment benefits, training, promotions, demotion, disciplinary measures and dismissals.

If you, as an employer, sense that your workplace practices and policies fall short of your legislative obligations, you should act now. October is almost upon you!

How social is your Social Media Policy?

on Monday, 05 September 2016. Posted in News

The use of social media platforms by employees in the workplace has become a growing concern for employers and business owners. Social media can be a great advantage to businesses when it comes to advertising, customer retention, brand image and competitive strategies. However, if its’ use is not correctly policed in the workplace, the risks can severely affect the businesses image, reputation and goodwill.

The employment relationship is based on trust, and when that trust is broken through defamation, hate speech or a breach of the employment contract, it can amount to a fair and lawful dismissal.

It is therefore trite that a business should be proactive and have an effective and coherent Social Media Policy in place in order to prevent social media liabilities.

The benefits of having a Social Media Policy in place lowers costly legal expenses and mitigates the companies liability against the employee. The Social Media Policy should be implemented together with training, monitoring and updating.

Managers should take a responsible and transparent approach to adopting a Social Media Policy, and consider the following :

  • Are employees educated about the social media related laws such as the Consumer Protection Act, Labour Relations Act, Code of Good Practice, Electronic Communications Act, The Constitution and Copyright and Trademark Act?
  • Does the company have a social media strategy?
  • What social media platforms are accessible in the workplace?
  • What is considered as ethical, respectful and confidential information?
  • Does the company have legal monitoring rules in place?
  • What disciplinary measures would be appropriate to the nature of the publication?
  • Does the company have safe avenues for employees to air their concerns and grievances?
  • Should the company have a designated spokesperson?
  • What would be considered as fair use?

As a business owner or employer, the effects of social media misuse on the companies good will can have far reaching effects after the fact, and sometimes the company can even be held vicariously liable. A dismissal may be lawful and fair, but it is not always the appropriate response.

When it comes to social media, your best weapon is to be proactive, and not reactive. Get a Social Media Policy in place today!     

                                                                                         Written by Erika Potgieter

Constructive dismissals and workplace pressures

on Friday, 19 August 2016. Posted in News

The primary responsibility of the employer is to provide work and the primary responsibility of the employee is to make his/her services available to the employer. But what happens when the employee finds that the deadlines are too onerous, the instructions are excessive, performance is hindered, there is too much conflict in the workplace, and the working hours are too long? Employers’ tend to jump straight down the line of warnings and dismissals, or they will wait for the employee to ‘fire themselves’

A constructive dismissals is whereby the employee resigns because the employer has made continued employment intolerable, therefor the employee has terminated the contract involuntarily.

In order to pursue this matter through the CCMA, the employee must prove
1. That he/she has resigned
2. The resignation was a consequence of intolerable employment
3. The employers conduct was the root cause of the intolerable employment.
4. The employee would have continued employment but for the intolerable circumstances.

Examples may be harassment, hostile conduct, assault, unfair disciplinary procedures, unilaterally changing of the terms of employment, excessively difficult work situations, unfair demotion.

The employer must ensure that there are internal remedies available at the employee’s disposal, such as human resources avenues, lodging grievances and communicating with supervisors or managers, to ensure that should an employee be faced with intolerable working conditions they have an opportunity to resolve them.

However, if an employee resigns and then revokes the resignation, this will not constitute constructive dismissal because it will be seen as the employee accepting the conditions as tolerable.

Remember that not all workplace pressures should be resolved with resignation, because the employer is entitled to presume the employee can withstand the requirements of the job.

Rather take practical steps to manage work related stress and dissatisfaction:

1) Allow open avenues for employees to speak to superiors
2) Keep a good record of your employees’ job descriptions in order to clarify their roles when needed.
3) Provide support or training pertaining to the grievance.
4) Make sure your employees know that the employer must be made aware of any illness or worsening conditions.
5) Have clear policies in place with regard to harassment and grievances,

Workplace pressures and stress are not always avoidable, but some are manageable. Success is the product of how well you can play the hand you have been dealt with!   

                                                                                         Written by: Erika Potgieter

Hospitality Sector Minimum Wage 2015 / 2016

on Friday, 15 July 2016. Posted in News

With effect from 1st July 2015 the minimum wage for workers within this sector increase as below:

For employers with 10 or less employees the monthly wage is R2 760.59 and the hourly rate R14.15

For employers with more than 10 employees the monthly wage is R3 076.98 and the hourly rate R15.77

This is an increase of 6.1% - calculated as CPI + 1.5% in line with the Sectoral Agreement.

Dagga in the workplace

on Thursday, 02 April 2015. Posted in News

Dagga. A no-no in the work place!

We are generally familiar with the problem of alcohol abuse in the workplace, but more and more often I am dealing with employees being under the influence of dagga or other mind-altering drugs. From an employer perspective there are two elements to deal with – solutions to or the prevention of the substance use and secondly disciplinary action for the breach of rules.

Apart from social responsibility with regard to assisting with rehabilitation and prevention there are financial reasons to address the substance abuse. The costs of substance abuse are high for employers. In addition to absenteeism and lower job productivity and performance, substance abuse also potentially leads to injuries and illnesses. Reducing employee substance abuse can improve productivity and reduce workplace injuries.

The first step is to have in place a Substance Abuse Policy which will outline your company stance on the matter. I would also suggest a policy on searching. These will enable you to address the matter consistently and fairly.

Your policy should outline the details on tolerance, restrictions, rehabilitation and testing (remember that an Employee needs to consent to testing and also this needs to be conducted by a suitably qualified person).

In terms of taking action against an employee who is under the influence of drugs, abuse of dagga, alcohol or other drugs in the workplace, this normally amounts to a serious breach of workplace rules with dismissal as a possible sanction.

You should be aware that an employee who suffers from an alcohol and/or drug problem might also be suffering from a health problem and should consider offering counseling, treatment or rehabilitation as an alternative before or in addition to disciplinary action.

For further advice on this matter please contact Jean Allen HR Consulting

POLYGRAPH TESTING IN THE WORKPLACE

on Tuesday, 17 March 2015. Posted in News

Recently I have been asked about the use of Lie Detector or Polygraph Testing in the workplace. A contentious and controversial topic, with no legislation to control the use of the test!

So how do we best use polygraph testing? There are some rules relating to the tests that need to be adhered to in order for them to be considered reliable, fair and useful in the CCMA .

An employee must consent to the test in writing and it must be informed consent
The employer should agree with the Polygraphists on the questions to be asked. They should be clear, unambiguous and not be vague.
Undergoing the test must be voluntary, the reason for and the type of questions should be explained.
The employee may have an interpreter present and/or an examiner that can communicate in the home language.
You may use a polygraph to investigate specific incidents where there has been loss or damage to the Company, property etc and there is reasonable suspicion that the employee was involved in the incident.
The results should only be made known to an authorised person, such as the person requesting the test or who authorised the test.
The polygraphist should testify at the disciplinary hearing and arbitration proceedings as an expert witness on how the test was performed, their qualifications, the type of questions and the test used.
And the results must be supported by other independent evidence.

In summary, you cannot rely on Polygraph evidence alone in the disciplinary process. The polygraph does not prove that someone is actually dishonest or lying, nor does it prove that someone is guilty. It is merely an indication of deception. The use of a polygraph result on its own is not sufficient to prove that the dismissal was fair.

The risk of conducting a Polygraph without corroborating evidence was demonstrated at a recent hearing I chaired. There was no evidence that tied the suspect to the misconduct, other than that he had failed a polygraph. With no supporting evidence the employee was found not guilty.

The potential outcome is that the relationship is potentially damaged; there is a breakdown in trust. You believe him guilty but are unable to prove it. If the employee is innocent he may feel maligned and you lose loyalty. If he is guilty there is a feeling of being invincible and having beaten the system – often very damaging to your business.

New Year New Legislation

on Wednesday, 11 February 2015. Posted in News

The long-awaited amendments to the Labour Relations Act, as incorporated in the Labour Relations Amendment Act, No. 6 of 2014, came effect on the 1st of January 2015. The Amendment Act may have a significant impact on how you structure and run your businesses.

A key intention of The LRAA is to ensure that vulnerable groups of employees receive adequate protection. Some of the most important amendments introduced by the LRAA relates to employees employed through a Temporary Employment Service ("TES") – also known as labour brokers, Fixed Term Employees and Part Time workers. These employees will enjoy far greater protection than previously. The amendments are primarily intended to limit the use of these employees to true short term contracts (three months or less or to replace another employee who is temporarily absent). There are other areas of the LRA which have been amended but let's briefly look at effect on your Fixed Term Contracts and Part Time workers

Fixed Term Contracts
Employers will not be able to employ its employees on a fixed-term basis for longer than three months unless it can be shown that a longer fixed-term period is justifiable due to the nature of the work or due to an alternative justifiable reason. Justifiable reasons could include one or more of ten specified reasons listed in the LRAA which include

  • Seasonal or cyclical operations;
  • Temporary increases in work volumes – less than 12 months;
  • Specific project of a defined/limited duration;
  • Replacement/substitution of an employee on a temporary leave of absence;
  • Temporary employment for training/work experience;
  • Non-citizen with a limited work permit;
  • A position that requires external funding for a limited period.
  • Official public works/public job creation scheme.
  • A superannuated individual (i.e. has reached normal retirement age).

Onus on employer to prove that any other reason may be justifiable.
Any offer, renewal or extension must be in writing and must set out the reasons for the fixed-term.

Fixed-term employees employed for longer than three months are to be treated on the whole not less favourably than permanent employees and are also to be guaranteed the same opportunities as permanent employees in terms of vacancies.

Employees who are employed for a fixed-term period longer than three months, in the absence of a justifiable reason, will be deemed to be a permanent employee.

Part Time employees
Employers are to ensure that part-time employees are treated on the whole not less favourably in comparison to full-time employees and that those part-time employees are provided with the same access to training and skills opportunities that are available to full-time employees.
As with fixed-term employees, part-time employees must also be provided with the same opportunities regarding workplace vacancies. A part-time employee will be considered comparable to a full-time employee if the employees are employed in terms of the same type of employment relationship that involves the same or similar kind of work at the same workplace

The message is clear, ensure you have up to date contracts – Permanent and Fixed term, that you conduct an audit of you temporary staff and contract staff and can justify the use of them and that you are satisfied that your FTC and Part Time staff are on the whole treated as favourable as permanent staff.

If in doubt call me!

Farm Workers Minimun Wage

on Thursday, 12 February 2015. Posted in News

February saw the announcement of an upward adjustment to the minimum wage of farmworkers with effect from 1 March 2015.

In terms of the new adjustments farmworkers will earn a minimum wage of
R2 606.78 per month;
R601.61 per week;
R120.32 daily
R13.37 per hour.

Don’t let Ho Ho Ho turn into Ho Ho Oh No

on Tuesday, 04 November 2014. Posted in News

As we wind down (or rev up) to the end of the year, many companies host functions to celebrate the year's achievements and to thank staff. These events often involve alcohol and it is useful to have guidelines in place to ensure the celebrations are not spoilt.

There if the misconception that should the event be held off site any incidents or poor behaviour is not your responsibility. But remember you have a duty to protect your employee's safety and your reputation and so this obligation applies even if the event is held off site. You, need to be able to show that you have made reasonable attempts to manage employees' conduct around alcohol consumption. Individuals who drink too much during a company event can do things to jeopardise their health, safety, their careers and your reputation.

Communicate with you teams. If you have an Alcohol Policy in place remind all staff of this policy, let them know whether the rules will be relaxed for this event and if so what the expectations are.

You may also want to consider some practical steps. Will you be arranging transport? Instruct the bar to stop serving alcoholic drinks to employees who are becoming intoxicated or unruly. Ensure that managers clearly understand what is considered acceptable and that they know to step in should any situation get out of control.

Another aspect of year end functions is time off work. If you are holding a day time function are employees expected to return to their place of work afterwards, if it is in the evening are they able to leave work earlier than normal? All of these matters are worth clarifying to avoid any abuse or misunderstanding. Explain that the absence rules still apply so if there is absence the following day, the usual reporting procedure is required, it will need to be explained by certification or may be treated as unauthorised.

Most important of all enjoy celebrating your achievements of 2014.

Back to Basics

on Sunday, 24 August 2014. Posted in News

As many of you know and I frequently remind you all it is essential to have your basic HR structures in place. Not only for compliance and to protect you but also to make your life easier!

Let's look at compliance first.

Did you know that it is a requirement of the Basic Conditions of Employment Act (BCEA) that each staff member has a Contract of Employment and a Job Description?

If you employ staff you need to register with and pay fees to the Occupational Accidents and Compensation Fund.

You are required to register and make the relevant payment to the Unemployment Insurance Fund (UIF). You have a legal obligation to register with this fund and contribute on behalf of your employees. All employees who work for more than 24 hours per month must contribute to the UIF. Employees pay 1% of their salaries and their employees another 1% every month. It's your responsibility as the employer to deduct your employee's contribution from his or salary and pay it to the Fund together with your 1%.

In addition to compliance it is essential for ease of management and peace of mind to have in place your basic HR Policies in place. As a minimum I would recommend an Absence Policy, Disciplinary & Grievance Policy, and a Substance Abuse Policy.

Your contracts and policy documents will help you with the questions below

"Albert hasn't come to work for three days, what procedure should I follow?"
"Mary is on maternity leave – we discovered lots of mistakes in her absence, can I dismiss her?"
"Sam, wants me to pay him out for him remaining 10 days' annual leave, instead of taking these days, can I allow this?"
"Can I grant Ndomiso family responsibility leave if her cousin has died?"
"Edward is not performing well during his probation period – how do I dismiss him?"

Further areas to consider:

Are your managers trained in the policies and implementing them consistently?
Are your employee records / staff files all up to date?
Do you record absenteeism and do you know how to contact staff in their absence?
Are you recording counseling sessions?
Do you have more than 50 employees? If you do, are you aware of your Employment Equity reporting requirement?
Do you have a Skills Development Plan?

Although I encourage you all to be on top of current legislation and best practice, I know you have your "day job" to do, so please call me and I will help with HR Compliance including contracts, policies, as well as those tricky HR related questions and much more.

AWOL

on Wednesday, 20 August 2014. Posted in News

I have had a number of calls recently about employees who do appear to be genuinely ill but who have not followed the correct reporting procedure for their absence. Many of you are frustrated that the employee has let you down, causing problems with covering their work and setting a precedent for other staff who chose not to attend work.

You are still able to take disciplinary action – you are not disputing that the employee was ill, but you are taking action against their failure to communicate with you about their absence. Please ensure that staff are fully aware of the procedure for reporting any absence to the company. Do they know when they need to phone and who they need to phone? Do staff know the requirements for providing Doctors certificates. Is it clear to them that it is their responsibility of to contact you and not for you to contact them? Do you have a policy about reporting absence?

Steps to take.
Although it is the employee's responsibility to inform you of any unscheduled absence, should they not attend work and you not hear from them it is advisable for you to call that employee to find out more about the situation. Ask fellow staff whether they know where the employee is or if they have any information about his absence. At the very least send an SMS instructing the staff member to contact you or return to work by a specific date and time to explain their actions. Keep a record of any attempt to contact your staff member as you may need to rely on that later.


Call me if you need assistance drafting an Attendance Management Policy.

Fixed Term Contract

on Wednesday, 20 August 2014. Posted in News

There remains confusion about the use of Fixed Term Contracts. Many organisations believe they can still be used as a trial period for employees. This is not an appropriate use of them – your contracts of employment should include a probation period and it is this probation period that comes into play if an employee is not performing in first three months of their employment. A Fixed Term contract needs to relate to a specific purpose – it is an agreement between an employer and employee that a particular job will be for a set time period or until a certain event occurs or a defined project is completed. There needs to be a genuine reason for the fixed term contract and a clear agreement of when the contract will start and end.

RETRENCHMENT

on Wednesday, 20 August 2014. Posted in News

Some employees see retrenchment as a way of removing a difficult or poor performing employee from their business. Be careful! The correct route to follow in this instance is the process of managing that employee, whether it be through capability or disciplinary. Relatively straightforward if you have been keeping records of counselling meetings and started a disciplinary process. Less so if you have let the behaviour go unaddressed. A genuine retrenchment is based on a genuine economic, structural or technological reason.

Earnings Threshold and Hospitality Sector Minimum Wage 2014

on Tuesday, 15 July 2014. Posted in News

Earnings Threshold 2013

Department of Labour has increased the annual earnings threshold; the new earnings threshold officially came into effect from the 1st of July. Here's what you need to know about the change...

The new earnings threshold for 2014 / 2015 is R205 433.30 annually or R17,129 monthly. 

This threshold operates to exclude employees earning above the threshold from certain BCEA entitlements and protections. Employees earning above this are excluded from working time protections such as maximum working hours, meal intervals, limits on how much overtime they are permitted to work, enhanced rates of pay for overtime work and work on Sundays, minimum rest intervals, shift allowances and access to transport for night work.

Please review yours contracts to ensure you comply or call me to discuss.

Increase to minimum wage within Hospitality sector 2014

The Hospitality Sector's new minimum wage has been adjusted upward with effect from 1 July 2014. The new wage adjustments will be applicable until 30 June 2015.

  • For employers with 10 or less employees the monthly wage is R2601.88 and the hourly rate R13.34
  • For employers with more than 10 employees the monthly wage is R2,900.08 and the hourly rate R14.87

This is an increase of 7.7%.

Has the Employee Absconded

on Thursday, 24 April 2014. Posted in News

We all know that employee who fails to return to work after payday or a Shutdown or period of sick leave. Many clients contact me and ask whether, as an employee has been absent for 3 days or more without authorisation and without communicating, they can dismiss for absconding. Sadly, despite what is drafted in contracts or policies we cannot assume that this employee has absconded – he may be ill, or absent for circumstances beyond his control. You, the employee is required to establish as best you can that the employee has abandoned is job and has no intention to return to work.

The onus is on you, the employee to make all reasonable attempts to establish the whereabouts of the employee and instruct him to return to work.

How best to manage this:

Stop paying the employee – the rule of no work no pay applies. If the employee is intending to return to work he will normally contact you to query his pay.
Call the employee and ask him where he is and what his intentions are. If you reach a voice mail instruct the employee to return to work at a specific date and time. Note the date and time of the call and what was said.
Send an SMS with an instruction to return to work on a specific date and time.
Ask colleagues whether they know of the whereabouts of the employee. Note any comments.
Should you have no response from the above send a letter to the address on file. This letter will be an instruction to return to work on a specified date and time and advice that failure to do so will lead to disciplinary action. Keep proof of delivery whether this is registered mail, or signatures from the person and a witness who delivered the letter.
If the employee fails to attend on the date and time specified then you will be required to send a notice of disciplinary hearing – advising the employee that failing to attend will result in the hearing being held in his absence.
Finally, following a hearing, issue a letter of dismissal and advise the employee of his right to refer the matter to the CCMA

If your employee communicates with you or returns to work prior to you dismissing him then this absence is treated as unauthorised absence and not as absconding. You would address this through your normal disciplinary process.

Should that employee return after the dismissal you are required to give him an opportunity to be heard and give his reason for the extended absence. A valid and reasonable justification may lead to you revoking your decision to dismiss.

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