Proactive HR

What do you mean by “proactive HR”?

For many employers, HR is largely reactive. Responding to events within the organisation as they arise – grievances, high levels of absenteeism, collective action, operational performance issues. By the time issues escalate to this level it requires significant management attention to resolve.

The concept of proactive HR looks to identify and deal with HR issues before they become problematic and use up senior management time. 

We do this in a number of ways:

  1. We use a series of tools to identify “problem” areas before they escalate. This includes analysing data to identify employees who are disillusioned, not engaged or potential trouble-makers. We then, together with local management, proactively manage these employees before bigger issues arise. In our experience, HR ends up looking fantastic through this process because it allows them to:
    – Clearly show senior management where they are adding value;
    – Impress local management with their ability to see into the organisation (and keep them on their toes); and
    – Improve local management performance by identifying and coaching those local managers who were aware of an issue, but were not sufficiently skilled or proactive to manage their team themselves;
  2. Through daily experience with employee arbitrations, we know that employers tend to win matters consistently when they have the right documentation in place, have gone through a proper process with employees and are fair in their dealings with employees. The second pillar of proactive HR is therefore to get the basics right. This can be done at reasonable cost by just following a few easy steps and in the long run results in significantly lower senior management involvement, time and cost.
  3. The majority of collective employee disengagement, frustration and conflict stems from poor or no communication in the organisation. This is often a more difficult area to get the right balance. We use a number of tools to improve HR communication. This makes HR more visible to all and helps to identify bigger issues before they become problems.

If you would like to know more about proactive HR and how HRTorQue can help, please feel free to contact us at [email protected].

ConCourt Ruling

An Employee is not entitled to make representations prior to a suspension.

On 19 February 2019, the Concourt ruled in Long v South African Breweries that it is not a requirement for an employer to allow an employee to make representations prior to a suspension where the suspension is precautionary and not punitive. In reaching this conclusion, the ConCourt considered the fairness of the suspension and whether the employee is prejudiced in doing so.

Basics of Managing Misconduct, Incapacity and Poor Performance

Course in Zulu

Following feedback from clients, HRTorQue is running a series of workshops in Zulu on managing misconduct, incapacity and poor performance. For more information please contact us on [email protected]. While the course material is in English, the workshop will be held in Zulu and aimed at improving an understanding of the key areas.

The workshop is open to all Zulu-speaking individuals who are involved at a basic level in managing staff and need to identify areas of misconduct, poor performance, and incapacity. The workshop is most suitable to individuals at a supervisory level who can speak English but would gain a better and fuller understanding of the requirements if facilitated in Zulu.

If you would like us to set up specific course for your teams, whether in Zulu or Sotho, we can look to arrange this.

Changes to the Labour Relations Act

The Labour Relations Amendment Act, 2018 was amended in November 2018 to include provision to:

  • Increase the period the Minister has to extend a collective agreement to non-parties from 60 to 90 days and the agreement shall only be extended if parties are sufficiently represented within the scope of the council;
  • Provide criteria for the Minister before the Minister is compelled to extend the collective agreement;
  • Provide for the renewal and extension of funding agreements;
  • Provide for picketing by collective agreement or by determination by the Commission in terms of picketing regulations;
  • Provide for the classification of a ratified or determined minimum service, where minimum service refers to the minimum number of employees in a specific essential service who may not strike;
  • Extend the meaning of ballot to include any voting by members that is recorded in secret with regard to registered trade unions and employer’s organisations;
  • Make way for the establishment of an advisory arbitration panel to deal with long and violent strike action in the interest of labour stability.

It will be interesting to see whether the amendments will improve the position of smaller businesses. In the past many unrepresented businesses have been forced to apply collective bargaining arrangements which have at times entrenched the positions of larger businesses better able to afford the collective conditions.

Paid Paternity Leave – Misleading

Together with the NMW Bill, three other bills were also signed into law on the same day in November 2018. These are the Labour Laws Amendment Bill, amendments to the Basic Conditions of Employment Act, and the Labour Relations Amendment Bill.

The most important aspect of the Labour Law Amendment Bill is that it allows for all parents, including fathers, same-sex couples, adoptive and surrogate parents, to access leave as follows:

  • An employee, who is a parent of a child, is entitled to ten consecutive days of parental leave;
  • An employee, who is an adoptive parent of a child below the age of two, is entitled to:
    • Adoption leave of at least ten consecutive weeks; or
    • At least ten consecutive days of parental leave
  • An employee, who is a commissioning parent in a surrogacy agreement, is entitled to:
    • Commissioning parental leave of ten consecutive weeks; or
    • At least ten consecutive days of parental leave.

The Labour Laws Amendment Act, 2018 also amends the Basic Conditions of Employment Act, 1997 to insert new definitions and make provision for parental, adoption and commissioning parental leave to employees.

It should be noted that a collective agreement may not reduce an employee’s entitlement to parental, adoption or commissioning parental leave.

In addition to this, the Unemployment Insurance Act, 2001, was also amended to make provision for the right to claim parental and commissioning parental benefits from the Unemployment Insurance Fund.

Practical Application:

While the legislation is clear on what was intended in relation to parental leave in practice the reporting by national newspapers has lead to a difficult situation for employers.

It was widely reported that employees would be entitled to paid paternity leave. We can assume reporters did understand the distinction that the “paid” element would be through claiming UIF, as opposed to employers having to foot the bill. Nevertheless, this has created an expectation of payment which cannot be met until the Department of Labour claims processes and the Unemployment Insurance Amendment Act and BCEA are amended to allow applicants to actually claim for this leave. In the interim, we recommend employers communicate internally their approach to paternity leave and look to amend their internal policies when practical to do so.

Alcohol in the Workplace

The year is coming to an end and with this comes the celebrations and functions that are either held at the employer’s premises or off site. Either way the question often arises as to what, if any, the employer’s obligations are when providing alcohol at these functions.

In terms of the OHS Act General Safety Regulation 2A. Intoxication.

  1. An employer or a user, as the case may be, shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
  2. No person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.

Employee ‘intoxication’ is a major concern and you will note that the OHS Act has placed upon employers the duty of prohibiting persons to enter or remain at a workplace who appear to be under the influence of intoxicating liquor or drugs.

These restrictions, together with COIDA and the implications of a possible injury on duty, have legal implications for employers and you should ensure that not only is it vital that these provisions be communicated to all employees, but that you keep a record of these communications. Employers should be in a position to demonstrate that they have made an effort to try and manage employees’ conduct around alcohol consumption, or preventing them from driving when over the legal limit or in an intoxicated state during these functions.

At social functions on the employer’s premises, the employer should ensure that employees have ‘signed off duty’ prior to commencement of the function. This will avoid any possible claims of ‘injuries on duty’, and consider the following steps to reduce possible liability:

  • Advise employees regarding the desired behaviour during work functions. This could include the employer limiting the number of drinks for the duration of the function.
  • Providing access to breathalyser tests.
  • Place a disclaimer in the area or pub.

Whilst year-end functions should be occasions to unwind and relax with colleagues outside of the normal working environment, both employers and employees still have certain responsibilities around their conduct, and would be expected to consider that both interests are not negatively affected.

Unfair Discrimination – What is the Burden of Proof?

Author: Tanya Mulligan (Cowan Harper Madikizela Attorneys

In the recent reportable case of Sasol Chemical Operations (Pty) Ltd v CCMA and others (29 August 2018) ZALCJHB 2680/16, the Labour Court evaluated the evidentiary burden placed on employees who contend that they have been subjected to unfair discrimination during their employment. The employee referred a dispute to the CCMA wherein he alleged that his remuneration was disproportionate to the Grade in which he was employed by Sasol. The employee, in his referral form, made no mention of either an equal pay dispute or discrimination based on race and merely requested that his remuneration be corrected in line with his Grade.

The Arbitration
During the arbitration proceedings, it transpired that the employee earned substantially less than a white co-employee, who held the same position and performed the same duties. In view of the evidence led the Commissioner considered the dispute to be an equal pay dispute, culminating in a claim of unfair discrimination based on race. Sasol in justifying the pay differentiation argued that the “white” employee had more experience.

Although the Commissioner accepted that the “white” employee had 7 to 8 years’ experience as opposed to the other employee who only had 3 years’ experience, he held that there was no justification for the differentiation in salary. The Commissioner then found that Sasol had unfairly discriminated against the employee and ordered Sasol to adjust the employee’s salary to be the same as that of his white colleague.

The Appeal
Sasol appealed the award in accordance with section 10(8) of the Employment Equity Act 55 of 1998, as amended (“the EEA”) and contended that the employee did not discharge the evidentiary burden contained in section 11 of the EEA. Section 11(1) of the EEA states “if unfair discrimination is alleged on a ground listed in section 6(1), the employer against who the allegation is made must provide, on a balance of probabilities that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair or is otherwise justifiable”.

The question before the Labour Court was accordingly whether a bare contention of unfair discrimination by an employee triggered the employer’s onus to establish a defence or whether the employee had to present a prima facie case of discrimination.

The Labour Court, in interpreting the meaning of “alleged” as contained in section 11 of the EEA, referred to Labour Relations Law: A Comprehensive Guide (6ed 2015), wherein the authors opined as follows:- “The term “alleged” has not been consistently interpreted by the courts. It must be presumed to mean something less than making out a prima facie case, as would be required in the ordinary course with the burden of proof is not reversed. However, the weight of authority indicates that it means more than an unsupported contention or mere accusation”. The Labour Court accordingly found that a mere allegation of unfair discrimination is not enough to discharge the burden and it does therefore not shift the onus to the employer.

In this case, a claim for unfair discrimination based on race was not advanced and the employee failed to establish any link between the difference in pay and his race. To that end, the Labour Court referred to Rustenburg Platinum Mine v Bester (2018) 39 ILJ 1503 where the Constitutional Court held that the Labour Appeal Court misdirected itself by upholding a case not advanced by the employee. As the Commissioner, in this case, relied on an “unarticulated complaint”, the award by the CCMA was set aside and replaced with one that Sasol did not unfairly discriminate against the employee.

In order to discharge the burden of proof, employees are accordingly required to articulate and substantiate more than a bare allegation. It is also clear that Commissioners of the CCMA should be wary of unnecessarily embarking on an interventionist approach, with the aim of substantiating a bare allegation, as this may indicate a reasonable apprehension of bias.

Relevance of Prior Warnings When Considering a Sanction

Author: Nosisa Sibanda

Warnings are usually expressed to remain “live” for a specified period, typically 6 or 12 months. But what is the position if an employee receives a warning, and then goes on to commit a second, very similar, act of misconduct soon after the warning has expired? Can the employer take the spent warning into account when deciding to dismiss?

The answer depends on whether the second act of misconduct is serious enough to justify a specific sanction on its own.

Section 8 of the Labour Relations Act (LRA) Code of Good Practice, requires an employer to apply progressive discipline in the workplace. The purpose of issuing warnings to an employee is to try and correct his/her behaviour. Warnings are not intended as punishment.

The order and validity of warnings depend on the nature and seriousness of the misconduct committed by the employee. Furthermore, an employer should keep record of all warnings issued to its employees. This includes warnings that are still in effect or which have expired.

Expired warnings may not be used as progressive steps leading to a dismissal but may be used as aggravating factors if the employee has been found guilty of committing misconduct and an appropriate sanction needs to be determined. The fact that a prior warning has lapsed, does not mean that the prior misconduct cannot be taken into account when deciding on the appropriate sanction for the matter at hand.

Why are people dishonest?

Editor: Alan Hosking is the Publisher of HR Future magazine, He is a recognised authority on leadership skills for the future and teaches business leaders and managers of all generations how to lead with integrity, purpose and agility. In 2018, he was named by US-based web site as one of the “Top 25 Future of Work Influencers to Follow on Twitter”.

As more people are being exposed for lying, cheating, stealing and being generally dishonest at all levels of society, it is worth our while to explore the reasons for dishonesty.

There was a time when lies were told simply to avoid the consequences of one’s actions. The logic is simple. When a kid gets caught out by their parents for having done something they were not supposed to do, they tell a lie in the hope that they will avoid being punished.

Denial, as in, “I didn’t do it,” is the first lie that springs to the lips of such a child. And, if they are believed, they come to realise that denial is a powerful defence.

So, when those same children grow to adulthood having escaped the consequences of their deceitful actions over the years by lying as they were growing up, denial then becomes a habit.

If we’re looking for reasons as to why people lie, we need look no further than the way parents bring up their children. We don’t learn ethics at Business School. We learn ethics in the first 10 years of our life.

There are however two sides to the “upbringing” coin. On the one side, parents fail to hold their children accountable for their actions because they are blinded by their love for them and can’t believe that their child can or will do anything wrong. In fact, those parents are already believing a lie before their children have had a chance to lie to them.

Then again, other parents might let their children escape the consequences of their actions because they feel sorry for them for some or other reason. This is particularly true in the case of parents who feel they aren’t able to give their children what they would like to give them. This may be because of their financial circumstances where the parent feels guilty for not earning enough to give their child what they want. It could also be because of a divorce where the child is deprived of one parent’s presence. Again, guilt plays a role, leading to overcompensation where the parent overlooks transgressions and the child soon learns that they can escape the consequences of their actions. They then grow up thinking that society will treat them in the same way.

The flip side of the coin is that children actually learn to lie from having parents who shamelessly and blatantly lie for various reasons. Example is a very powerful influence in a growing child’s life so, when children witness their parents lying to authorities to avoid certain consequences, they assume that this is the best way to handle such situations and become accomplished liars themselves.

Whichever way you look at it, then, parents play a key role in determining the honesty or deceitfulness of their children. Of course, that doesn’t let those children off the hook. Everybody has to take responsibility for their own actions.

The denials coming from politicians, public sector workers, business consultants and others whose actions have been exposed as illegal or unethical is now becoming predictable to the point of being funny, if it weren’t so tragic.

If we allow dishonesty to go unchecked, dishonest people are going to rob our country of a better future. I urge you to take a stand against dishonesty by conducting yourself in terms of word and deed in an honest way. Take responsibility for your actions and hold others accountable for their actions.

After you have set an example of honesty, reward and endorse honesty whenever you come across it. Adopt the mindset that honesty is not the best policy – it’s the only policy!

Independent Contractors – Employers Beware

A common error made by HR departments is to assume that independent contractors are truly independent and that no PAYE needs to be deducted from payments made to these individuals. This often happens because the individuals in question previously worked for the organisation, have slipped into a consultants role (usually on retirement) and HR haven’t the time to check whether they are truly independent both initially and on an ongoing basis. HR should however be aware that should they be audited by SARS any “independent contractors” will be reviewed and if they are not independent then SARS will require the employer to deduct PAYE (and penalties and interest for historic non-payment would apply).

Independent contractors earn income for the services that they render, and SARS made changes to the Fourth Schedule of the Income Tax Act in 2000 to bring these individuals into the PAYE net if certain criteria are satisfied (please see Interpretation Notes 17 and 35) to protect the fiscus as far as possible. Note, while labour law Independent contractors are not necessarily employees for UIF (as the definition is linked to labour law), they may very well be for PAYE purposes.

Simply, in terms of interpretation note 17 a statutory test is first carried out to see whether an independent contractor is actually independent and thereafter a common law test is applied.

Statutory Test:

This test has two parts and the second part takes preference:

1. If part one is positive then the person is deemed “not” to be carrying on an independent trade and therefore any earnings are remuneration and PAYE should be deducted. The first test has two sub-parts both of which need to apply for the person not to be independent:

  1. The first element is that the services or duties are required to be performed mainly (which is a quantitative measure of more than 50%) at the premises of the client; and
  2. The second element of the test is whether the worker is subject to the –
    1. control of any other person as to the manner that the worker’s duties are or will be performed, or as to the hours of work; or
    2. supervision of any other person as to the manner that the worker’s duties are or will be performed, or as to the hours of work

2. Second Test

A person who employs three or more full-time employees, who are not connected persons in relation to him or her and are engaged in his or her business throughout the particular year of assessment, is deemed to be carrying on a trade independently.

So, if a person meets the second part then they will be an independent contractor even if they fail the first test.

Common Law Tests:
Assuming the statutory tests are not applicable then the common law test can be applied to see whether the person is independent. These tests are not a checklist and hence are not conclusive. They rely on the definition of an employee in section 200A of the Labour Relation Act. If the person is an employee per these definitions then payments made to them should be treated as remuneration and PAYE should be deducted. As a reminder, s200A of the Labour Relations Act defines an employee as:

Until the contrary is proved, a person, who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:

  • The manner in which the person works is subject to the control or direction of another person;
  • The person’s hours of work are subject to the control or direction of another person;
  • In the case of a person who works for an organisation, the person forms part of that organisation;
  • The person has worked for that other person for an average of at least 40 hours per month over the last three months;
  • The person is economically dependent on the other person for whom he or she works or renders services;
  • The person is provided with tools of trade or work equipment by the other person; or
  • The person only works for or renders services to one person.