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LETTERS TO BT LABOUR GUIDES
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| Sunday, April 19 1998 |
| Dear Labour Guides Dear Labour Guides, I recently got engaged to a woman who is an internal auditor for the firm for which I work. The firm then dismissed her saying that there was a conflict of interest as she was supposed to do an audit on an account upon which I was working. Prior to our engagement the company knew of our involvement and condoned the relationship. Are they allowed to do this? |
| Grant Ray-Howett of Labour Guides replies: As with any dismissal, there has to be a fair reason as well as a fair procedure. In terms of decided case law a employee can be dismissed due to the employee’s conduct leading to a breakdown in the trust relationship. A conflict of interest may create such a breakdown. However the employer would then have the onus of proving that there was a conflict of interest and that the conflict of interest has corrupted the relationship of trust between the employer and employee. In other words the employer in this case would have to prove that your relationship with your fiancé undermined the relationship of trust that existed between your fiancée and the company. The company could also argue that the relationship between you and your fiancé poses a threat to the business due to the fact that she could be less rigorous in terms of her audit of the project that you where involved in because of her relationship with you and thus dismiss her due to operational requirements. However the employers rights to protect itself against economic threats and or it’s interests in preserving the trust relationship has to be balanced against one’s rights to freedom of association, privacy and liberty. In addition, the fact that the company condoned the relationship in the past could be interpreted in such a way so as to imply that the company did not see your relationship as a threat. Also the fact that she was dismissed and you were not may also be construed as discrimination and if they could not justify the differential treatment, this could be an automatically unfair dismissal. However, your best bet in terms of claiming an unfair dismissal would probably lie in challenging procedural fairness. When dismissing for misconduct, a disciplinary hearing in which the employee is allowed to state their case must be held. If the reason for dismissal is operational reasons the employer should have consulted with the employee about the possibility of dismissal and about the various alternatives to the dismissal. The employer must have investigated the alternatives to dismissal. From the facts which you have given, one of the alternatives that could have been considered is taking you off the project or taking your fiancé off the project. |
| Sunday, April 19 1998 |
| Dear Labour Guides I was involved in a dispute with one of employees during which things became heated and my employee became rude. Is this insubordination and is insubordination a dismissable offence? |
| Grant Ray-Howett of The Labour Consultancy replies: Insubordination has been defined by the industrial court as wilful disobedience of a lawful and reasonable order. Being rude or even cheeky does not constitute insubordination. Gross insubordination has been held to be a dismissable offence, however I doubt that one would be justified in dismissing an employee due to insubordination on the first occasion, unless it resulted in a threat to the safety of others or damage to property or business. However if an employee’s attitude does affect the running of the business, then one may dismiss due to operational requirements. |
| Sunday, March 8 1998 |
| Dear Labour Guides My spouse is expecting a baby in December. To how many days' maternity leave are I entitled? |
| Grant Ray-Howett of The Labour Consultancy replies: Firstly, you are not entitled to maternity leave, your spouse is. What you are entitled to, however is family responsibility leave. The Basic Conditions of Employment Act specify that you are entitled to three days paid leave in the event of: the birth of the employees child, if the employees child is sick or there is a death in the family. This section applies only to the employee who works more than four days a week. However a collective agreement may vary the number of days and the circumstances under which this type of leave is given. A collective agreement is an agreement reached between labour, represented by a registered trade union and employers, represented by a registered employer's organisation or bargaining council. The purpose of such agreements is to regulate the conditions of employment and to establish dispute resolution mechanisms. According to section 23 of the Labour Relations Act, a collective agreement only binds the parties to that agreement. However under certain conditions, an agreement reached by a union may bind non union members. This applies when the union represents the majority of the employees in the work place. However, if no collective agreement is in place, the relevant statutory provisions apply. |
| Wed, 10 December 1997 |
| Dear Labour Guides When I want to dismiss an employee that has been caught stealing or has assaulted a fellow employee, can I dismiss them on the spot? |
| Grant Ray-Howett of The Labour Consultancy replies: The short answer is no. Don’t do what 99 percent of South African employers do and that is to dismiss him or her on the spot and call the cops to arrest them. This mistake has often come back to haunt the employer from behind the prison cell. Despite the fact that theft or assault is a good enough reason to dismiss an employee, what employees often forget is that certain procedures must first be followed before dismissing an employee. The employee must be given a fair disciplinary hearing. This means that he or she must have the charges against them explained to them and preferably given to them in writing prior to the hearing. They must also be given a chance to prepare for the hearing, which one can do by notifying them in writing that a hearing is to take place on such and such a day and such and such a time, they must be given some time to prepare for the hearing. It must also be explained to them that they are allowed a fellow employee or union member to represent them at the hearing and that they can call witnesses. One way to avoid having the problem of having a employee who is causing problems on the premises while awaiting the hearing is to suspend the employee, with or with out pay and request them to come back to attend the hearing. Should you want to press criminal charges, suspend the employee fist and wait until they get out on bail and then inform them that they must appear at a disciplinary hearing. At the hearing the employee must have the charges explained to him and he must be allowed to respond to those charges. This means that he is allowed to call witnesses and challenge your witnesses. Also it is very important that one must appear neutral prior to the rendering of a decision. However following this procedure will not prevent the employee from referring the matter to the CCMA, it just means that you won’t have to pay out compensation for an unfair dismissal for want of proper procedure. |
| Wed, 26 of November 1997 |
| Could you explain what the distinction between full time employees and part-time/ casual employees and between time based and task based contracts? |
| Grant Ray-Howett of The Labour Consultancy replies: Dealing with the distinction between full time and part time employees first. In terms of the Labour Relations Act as well as the proposed Basic Conditions of Employment Bill, this distinction has become effectively become redundant. This follows from the extremely wide definition of employees given in those acts, which is: any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and any person who in any manner assists in carrying on or conducting the business of an employer. Thus even the gardener who comes once every two weeks is considered and employee and has the same rights as someone who works for you everyday. Where a difference might come in is in terms of sick and leave pay due. This varies according to number of days worked, which would obviously differ between full and part time employees. The only difference between a time and task based contracts is the time at which the contact terminates. In the case of the time-based contact, the contact is specified to run for x amount of time and terminates when x amount of time lapses. In the case of a task-based contact, the contact terminates on the completion of a task. |
| Saturday, 6 September 1997 |
| Dear Labour Guides Labour Guides has received a number of enquiries with regard to independent contractors. |
| Rael Solomon of The Labour Consultancy replies: In many instances the employers was the “independent contractor” situation as a ploy to avoid their responsibilities. See Kenneth Creamer’s article in Labour Guides for a detailed explanation. Many readers raise the question of overtime, leave pay & bonuses. These questions are normally raised by employees and not contractors whose conditions of work should be specified in their contracts. If an employee is unhappy about his particular situation, he may contact the CCMA (Gauteng 377 6600) for advice. |
| Saturday, 6 September 1997 |
| Dear Labour Guides I was employed as an outside contractor for the past three years to maintain the electric equipment in a plastics factory. I spent nearly everyday maintaining the equipment. The company has now decided to employ their own in-house electrician and have cancelled my contract. I offered to work for them full time but they have employed someone else. What can I do? |
| Rael Solomon of The Labour Consultancy replies: The Labour Relations Act does not provide protection to independent contractors whose relationship was so defined from the beginning of their association with a company. The company is entitled to cancel their contract with you provided such cancellation is in terms of the contract. |
| Saturday, 6 September 1997 |
| Dear Labour Guides Subject: Probationary periods within academic institutions. I would like to know what the implications are (if any) as to the probationary period of most academic institutions whereby the support services are required to serve the same probationary period as academics namely, one year. Furthermore, what are the procedural requirements for permanent appointment in both the academic as well as the support service category. |
| Rael Solomon of The Labour Consultancy replies: All employers are protected in terms of the Act with the exception of:
If a dispute arises the matter should be referred to the CCMA for mediation. Academics whose employment is probationary, but not on a fixed time contract, may also form the same impression of permanent employment with all the implications to their protection in terms of the Act. |
| Saturday, 6 September 1997 |
| Dear Labour Guides I have an uncomplicated case which has been dragging one for more than a year now without it being brought to a close. Firstly let me ask if this is the correct place to put my complaint or should I contact the CCMA I have contracted a Legal representative and the Department of Labour regarding my complaint, with each of them advising me to continue but is may cost me a large sum of money as the Company in concern is a large International Company. |
| Rael Solomon of The Labour Consultancy replies: It does not cost you anything to refer your dispute to the C.C.M.A. The Act does, however, require that the matter be referred within 30 days of the dispute arising. Condonation may be granted in special circumstances. |
| Saturday, 6 September 1997 |
| Dear Labour Guides I am emigrating and have informed my domestic servant, who has been with me for 15 years, of my intended departure. Are there any rules about what I have to pay her? |
| Rael Solomon of The Labour Consultancy replies: In terms of the Act you will be required to pay your domestic, as with any other employee, a severance package as you have terminated employment for your “own operational requirements”. The minimum package is one weeks remuneration for each year of service. You must give her one months notice, for which you may pay her at your discretion or she may work it. She is not entitled to U.I.F (Blue Card). Please also ensure that she is paid outstanding holiday pay and a letter of reference. |
| Friday, 27 June 1997 |
| Dear Labour Guides Can you please tell me: if an employee was unfairly dismissed in August 1996, and the hearing is only scheduled for June 1997, which labour act will apply? |
| Rael Solomon of The Labour Consultancy replies: The new Labour Relations Act 66 of 1995 only came into effect on November 11, 1996. If an employee was dismissed prior to this time and the case was referred to the old Industrial Court, it will be heard under the Acts ruling at that time. |
| Friday, 23 May 1997 |
| Dear Labour Guides I was employed as a paralegal to run the Estates Department for a firm of attorneys. After working for three years, one morning I was told that the firm was considering closing down the department as it was not profitable. That same afternoon, I was given one months pay in lieu of notice, 3 weeks pay for my three years of service, outstanding leave pay and told to go. A few weeks later I found that the department was still in operation but the work was being done at home by someone else for the firm. |
| Rael Solomon of The Labour Consultancy replies: Clause 189 of the Labour Relations Act requires that an employer who is considering dismissing an employee for operationed requirements (retrenchment) should consult with the employee in an attempt to reach consensus on measurers to avoid the dismissal or to mitigate the circumstances of the dismissal. Your dismissal appears not to has been procedurally correct and a case could also be made that you should have been offered the opportunity to do the department's work from your house. If discussion with your employers have no effect you should register a dispute with the C.C.M.A. at 20 Anderson Street, Johannesburg (Tel: 377 6600). |
| Friday, 9 May 1997 |
| Dear Labour Guides I have worked for a company in the computer industry for over twenty years. The company is closing two of its divisions and some of the staff were offered attractive retrenchment packages. In my case the company organised me an excellent position with another company and now feel that they are not obliged to pay the retrenchment package to me.
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| Rael Solomon of The Labour Consultancy replies: The fact that you have secured a good position with another company in no way relieves your present employer of their responsibilities in terms of the New Labour Relations Act and in particular section 189. 1. The employer is required to consult with all interested parties and should not make any arbitrary decisions; 2. The employees should be dismissed according to criteria that, if not agreed, are fair and objective. There are many other clauses in the L.R.A. which protect an employee's interests in the situation you have described and it is essential that you obtain professional advice. Employers should be consistent in their actions and it would be patently unfair for the employer to require you to give up the security of long service merely because you have found a new position. In any event ALL retrenched employees should receive retrenchment packages calculated in a similar way and based on the same general |
| Friday, 2 May 1997 |
| Dear Labour Guides I was the Johannesburg freelance agent for a Management Services Company with head offices in Cape Town. As part of the Company's service they provided me with leads supplied from their national contacts and advertising programmes. After two months as an agent with the company they suggested I open offices for them in Johannesburg. I was to be the manager of their Johannesburg branch. I employed telesales operators on a commission basis but they paid the rent, supplied the office equipment and paid for office consumerables, telephone calls, and incidental expenses. I agreed to work on a commission only basis. After seven months, the attitude of the Managing Director changed. The head office drastically reduced the number of leads they were sending to Johannesburg, told me not to replace any telesales people WHO LEFT and started making my life impossible. When I complained I was told on numerous occasions that "if I didn't like it, I could go". Without warning, after 8 months I was told to close the office permanently and go back to being a freelance agent. I closed the office, sent back hired equipment and dismantled fixtures and left. Some 3 weeks later I found that they had re-opened the office and were advertising for Telesales operators. |
| Rael Solomon of The Labour Consultancy replies: From the information given it is clear that you were unfairly dismissed and/or retrenched in a manner which was also procedurally incorrect. The actions of your employer in making the workplace intolerable is known as "constructive dismissal." The pretext of closing down the office was only a smoke-screen, hence the action was unfair.
The New Labour Relations Act. The employer is required to consult with his employee and to attempt to reach consensus on appropriate measures - some of which are:
The procedure adopted by the employer in the above matter appears to have been arbitrary. The procedures and requirements of the Act were not followed. The actions are further exacerbated by the way the offices were closed to get the employee off the premises, and then immediately re-opened after the employee had left. This matter should be referred to the C.C.M.A. for conciliation and, if this should fail to arbitration. In view of the employer's manipulative actions and unfair behaviour you should claim one years earnings in compensation. As your income was based on a percentage of the branch's income you will be required to quantify your earnings and show how you have arrived at a figure for your prospective earnings during the period following your constructive dismissal / retrenchment. It is absolutely essential that you seek professional assistance as the claim will be complicated by the nature of the dismissal and the quantifying of earnings. You must make it as easy as possible for an arbitrator to establish the quantum of compensation to be paid to you in the event that your claim is successful.
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| Friday, 25 April 1997 |
| Dear Labour Guides When employing a live in domestic worker, what type of contract is involved and what are the implications? |
| Rael Solomon of The Labour Consultancy replies: Business Times has suggested contracts of employment for domestic workers, copies of which can be downloaded from BT Online. Note: We don't recommend drawing up a contract with your domestic worker without getting professional advice. It is like drawing up your own will from a standard document, the repercussions of which can be devastating. At this stage you don't have to have a written contract. The concept of domestic workers being employed in terms of a written contract has only recently attracted attention. As with all contracts the conditions of proposed employment and the job description must be very clearly defined, including codes of behaviour expected. The domestic servant to be employed must be carefully interviewed and all references checked. We recommend a one month period of probation before entering into a permanent contract. There is no minimum salary for domestic workers. We suggest that you offer a salary which the domestic worker is clearly given to understand is a package. This package contains an element of overtime which the employee would be normally be expected to work. You are also supplying board and lodging which has a value of for example R100,00. Special overtime should be paid at a rate of 1.5 times the hourly rate as calculated from her monthly salary.
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| Wednesday, 23 April 1997 |
| Dear Labour Guides I interviewed a candidate for a secretarial position within our company and she stated that she was literate in MS-WORD. We put her on three months probation. Three weeks into employment the manager found that she did not possess the functional computer knowledge as stated by her during the interview. She then told her manager that she could not be dismissed because she was pregnant, which was not on issue, but used by her as a threat. We tried to train her and suggested she take a week's paid leave to update her computer skills. We find that she is not responding to help and counselling and is quite rude in her dealings with management. We wish to dismiss her immediately. How do we stand in this situation? |
| Rael Solomon of The Labour Consultancy replies: We discussed this question with Mr John Botha, Labour Relations Manager of Quest Personnel who commented as follows: Although there is an obligation on the candidate not to misrepresent information during selection, there is a responsibility on the employer to follow all reasonable steps in screening candidates and in this case it would not have been unreasonable to impose a practical PC test on MS-WORD. Without objective measurement standards, the perceptions of the manager and the candidate pertaining to the words "competent in MS-WORD" would vary considerably. The manager would have to assess the extent of incapacity and consider reasonable steps of instruction, assistance or training - only if none of these options are reasonable could the manager consider termination and then only after allowing the candidate an opportunity to sate her case and to be assisted by a colleague if she so wishes. The pregnancy has nothing to do with the competencies required in the job and should the candidate continue to misrepresent facts and in so doing create dissension, disciplinary action would ensue. Management must be satisfied that they have tried to determine the reasons for incompetence and to identify areas of deficiency. Assistance and training has not appeared to have helped in bridging the competency gap. A meeting could be called to discuss an alternative to termination for incapacity and, if none, to give statutory notice of termination. |
| Tuesday, 22 April 1997 |
| Dear Labour Guides I am an invalid and require the services of a trained nurse. Due to the personal nature of the nurse's duties, I would like to employ a male nurse. A daily newspaper refused to accept my advert on the grounds that, in terms of the LRA, it is discriminatory to nominate the sex of prospective employees. I do not want the inconvenience of sifting through hundreds of applications that I cannot accept. Please advise. |
| Rael Solomon of The Labour Consultancy replies: The newspaper was wrong to refuse your advert. In terms of the LRA, Schedule 7 Part B (Unfair Labour Practises) states:
There has been criticism of the new Act, much of it due to fact that particular clauses are read in isolation, not taking into account other relevant clauses that have a direct bearing on the matter under review. |
| Dear Labour Guides I am a domestic servant with 5 years service and earn R400 per month plus board and lodging. From Monday to Saturday I work from 7am to 7pm. I also work every Sunday until 10am. When I complained about the low salary and long hours, I was told to leave immediately. My employer gave me one month's salary and my leave pay. Is this fair? |
| Rael Solomon of The Labour Consultancy replies: Your dismissal appears to be unfair. In terms of the LRA, every employee has the right not to be dismissed unfairly. Employers are certainly not allowed to dismiss employees because they raise grievances. Dismissal is allowed for:
You will be asked to fill in a LRA7.11 form. Your complaint will be registered and you must give a copy to your employer by registered post. The CCMA will advise you of a date for a conciliation meeting which normally takes place at the CCMA's offices within 30 days of registration. If conciliation does not work, you are entitled to request arbitration. It is essential to register your dispute within 30 days of being dismissed. |