It is understandable that business owners feel panicky because of the toll Corona is taking on business income. However, many businesses realise that if they implement wholesale retrenchments they will not only lose valuable skills but will also reduce the buying power of the public. This would then further reduce the business’s ability to earn…
Use your anti-Corona KIT Since the cancer of apartheid South Africa’s workplaces have not been affected by a malady anywhere nearly as bad as Corona. Corona severely threatens not only our physical health but also the economic health of workers, employers and the economy as a whole. We have the choice of panicking and washing…
Employers fairly frequently demote employees. This could be for any of many legitimate and illegitimate reasons including: The boss dislikes the employee The employee has broken a rule The employee’s work performance is unsatisfactory The boss wants to create a vacancy for somebody else Things have gone wrong and the boss needs a scapegoat The…
Employers frequently misuse probation agreements to get rid of employees instantly because: the employee has committed misconduct the employer wants to make space for a friend or cousin of the owner the employee ‘does not fit in’ a manager ‘does not like the employee’s face’ As probation is not a licence to fire, ‘James Bond’…
While all retrenchments are painful and often devastating for employees it is normal for employers to retrench employees after serious losses have been incurred because the employer cannot afford to pay their salaries. It can also happen that those executives responsible for managing the company are disciplined for allowing the financial losses to occur. However,…
The most common criterion used when deciding who to retrench is last-in-first-out. Employers are allowed by law to use the retention of necessary skills as a criterion. However, proving that the application of this criterion was fair is very complex. This has caused many an employer to lose in court. For example, in the case…
Absenteeism is a most problematic form of misconduct because it reduces productivity. Most employers, therefore, require employees who are absent from work due to alleged illness or injury to provide proof, in the form of a medical certificate, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness. It is…
It is a common erroneous belief amongst employers that they protect themselves by employing staff without a letter or contract. In fact, the converse is true. The law does not make signed employment contracts compulsory but the Basic Conditions of Employment Act (BCEA) does require employers to inform employees in writing of their particulars of…
Even when an employer finds an employee guilty of a serious offence this does not automatically entitle the employer to fire the employee. There are numerous possible remedies for misconduct which could include: Dismissal – the most severe corrective action Demotion – provided that the employee is given the choice of dismissal or demotion Suspension…
Employers too often try to remove their older employees from employment in order to ‘make way for new blood’ or because such employees sometimes move more slowly or ‘do not fit in’. However, such employees are protected by the Employment Equity Act (EEA) which prohibits unfair discrimination against an employee on the grounds of age….
All grievances should be treated with great care in order to establish their validity and to ensure that they are given appropriate attention. Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit. However, more often employers go to the opposite extreme and brush…
Where employees disrupt the workplace the operations of the business can be seriously affected. Employees who behave in a disruptive manner might do so for a variety of reasons including: Abuse of alcohol or other substances Incompetence – that is, while the employee is not intentionally disruptive, his/her inability to perform properly disrupts the flow…
The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment-related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury. Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances…
While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. The key question is ‘How can the employer go about proving that…
The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned. Under the PDA both employees and employers are protected. That is, employees are…
In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to: Subpoena witnesses and documents On authorisation, enter and inspect any premises on which any relevant document or other object is to be found On authorisation, remove and inspect any relevant document or other object…
Employers too often make the mistake of retrenching problem employees because they perceive the disciplinary process as being too drawn out and complicated. However, they are not allowed to use retrenchment to get rid of ‘deadwood’, trouble makers, poor performers or other undesirables. Retrenchment only becomes a possible option if the job is truly redundant….
The Basic Conditions of Employment Act (BCEA) entitles most employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to: be remunerated for work done be given vacation leave, sick leave, maternity leave and family responsibility leave be paid for overtime worked lunch breaks weekly…
To have a chance of winning a case at CCMA a party must present proof to the arbitrator. In the days when I arbitrated CCMA matters parties argued their cases before me very vehemently, passionately and in great detail but often brought little or no support for their arguments. They were then most surprised when…
When an employer temporarily requires an employee to vacate its premises and to stop performing his/her duties this is called ‘suspension’. The effect of a suspension is that the employee is not allowed to return to work until the employer instructs that he/she may do so. Such suspensions normally occur: While the employer is investigating…
Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include: The employer dislikes the employee for reasons unrelated to the workplace. The owner wants a more attractive secretary The employee is unwilling to grant her superior sexual favours The employee has clashed with a key executive who has…
In a Labour Court review the party who is unhappy with the award asks the Labour Court to set the award aside on the grounds that the arbitrator, in making the award, ‘misconducted himself/herself’. That is, the review application is not an appeal against the award decision but rather a claim that the arbitrator: Committed…
Section 213 of the Labour Relations Act (LRA) provides that an employee is anyone, other than an independent contractor who works for another person or who assists in conducting the business of an employer. This definition omits only service providers who are external and/or truly autonomous. Section 200A of the LRA states that, unless the…
Where there has been only one employee retrenched, the Labour Relations Act (LRA) allows the CCMA and bargaining councils to arbitrate the retrenchment dispute where conciliation has failed to resolve it. This has made it easier for employees to oppose retrenchments. That is, due to the quicker and simpler processes at the CCMA as compared…
