HRTorQue HR Training Courses – October 2019

Sexual Harassment, Racial Harassment and Workplace Bullying
Date: 16 October 2019
Time: 08h30 – 13h00
Venue: Durban (to be confirmed)

The workshop is designed to assist managers and management in dealing with issues relating to inappropriate behaviours in the workplace such as sexual or racial jokes, comments or innuendos, sexual and/or racial harassment and workplace bullying. The workshop will assist in identifying policies and procedures that need to be implemented as well as possible awareness and/or training measures for the staff in this area.

For more information on in-house workshops and workshops in Cape Town and Johannesburg, contact [email protected].

Understanding Employment Equity and Compliance
Date: 30 October 2019
Time: 08h30 – 13h00
Venue: Durban (to be confirmed)

This workshop is targeted at individuals who are responsible for implementing and ensuring compliance with the Employment Equity Act legislation. At the end of the Workshop individuals will have a deeper understanding of the purpose of the Employment Equity Act; the recent Changes to the Income Differential Statement; Unfair Discrimination; Compliance in terms of Reporting; Communication; Analysis; Plans and Committee Meetings.

For more information on in-house workshops and workshops in Cape Town and Johannesburg, contact [email protected]orque.co.za.

Understanding Discipline and Initiating Disciplinary Hearings
Date: 15 November 2019
Time: 08h30 – 16h00
Venue: Durban (to be confirmed)

The workshop has open access to all individuals who are involved in disciplining staff and who need to prepare for and present evidence during a disciplinary hearing. Tools and skills learnt will enable the individual to properly understand how discipline works and the effect of how poor understanding and management of discipline effects a Disciplinary Hearing. Finally this workshop will assist individuals in being more organized and prepared for the initiating of a hearing, and the questioning of witnesses during the hearing.

For more information on in-house workshops and workshops in Cape Town and Johannesburg, contact [email protected].

Faking qualifications – now a criminal offence

President Cyril Ramaphosa has signed the National Qualifications Amendment Bill into law. This means that South Africans who are found guilty of misrepresenting their qualifications could face a harsh fine, up to five years in prison, or both.

This is not limited to the submission of a CV, but could also include making the claim on social media platforms such as Facebook or Twitter.

Anyone, not just employers, can report people making false claims to the South African Qualifications Authority, which will publish a national name and shame list of fraudulent credentials.

The Act goes further to also impose potential fines and imprisonment sanctions for educational institutions who make false claims.

Implementing Time and Attendance Systems Successfully

A large number of employers are unhappy with their time and attendance systems. When we look into their cases we see a few common themes:

1. The Hardware
The hardware for time and attendance is often the same throughout South Africa. Biometric (fingerprint or facial recognition) Chinese built platforms that tend to function as they are intended i.e. to record when a person clocks in and clocks out. They are usually quite reliable and the only time they tend to be an issue are where they are poorly located on the site (allowing employees to bypass them) or don’t have back-up power or a stable wi-fi or ethernet connection meaning data for large patches is unavailable or unreliable;

2. The Software
There are various vendors of different sizes providing Time and Attendance software in the market. The software can be of varying quality with the most significant attributes impacting the client being:

  • Can the data be reliably extracted to excel?
  • What rules can be set in the system (see below for further discussion on the rules) and are these reliably translated to the data?
  • What is the setup and after sales support like? It is this attribute which causes some of the biggest frustration for employer as the time and attendance data is critical for prompt payments to staff, but they often feel let down by the after sales support;

3. The Rules
Most employers who are new to time and attendance systems assume they are plug and play i.e. once installed they are easy to use. In practice the two most important elements to getting this right are setting the rules and managing the process (see point below). By setting the rules we mean establishing in the software how the system should treat unusual situations e.g.

  • If an employee is 10 minutes late is this allowable or should it be treated as short time;
  • Inputting shift schedules into the system so the system automatically reflects overtime and normal time correctly;
  • Correctly calculating and averaging hours according to the BCOE as opposed to calculating overtime on a daily basis (this can significantly increase costs for an employer if done incorrectly);

In many cases the employer doesn’t spend any time on this aspect and by the time it is implemented it is difficult for them to revise their practices as they have set a precedent. Badly set rules cost money and make reconciling the hours for payroll time consuming and challenging.

4. Managing the Process
This is the process of extracting the data for the period, reviewing it for any anomalies, following up with management and revising / redefining any incorrect records. We have never seen an employer without some data issues to resolve in a period. These could be trying to understand why an employee worked for 18 hours straight (usually they didn’t clock out); trying to adjust time where there has been a change in the shift schedule and specific employee data is incorrectly reflected; or investigating employee absences. Irrespective of the cause, the biggest mistake we see made by employers is this task is allocated to their payroll or HR team to manage at the last minute just before they have to run payroll. By this stage there is no time to check with line managers. It is far, far better for the data to be daily or weekly and signed off by line managers. This promotes the right behaviour and significantly improves the quality of the data.

5. Integration with Payroll
For many employers, this is one of the key attributes they look for in their software, but in practice this does not improve the chances of a successful implementation. It is the old problem of GUGO (Garbage In Garbage Out). If the rules are bad and the process is badly managed, it doesn’t matter whether the system integrates or not. Sometimes it makes it worse because nobody actually checks the data and they assume it is correct.

6. New Software and Apps
Time and attendance is a pace where we expect new applications and AI to make a significant impact. There are already apps to allow for monitoring of employees through the GPS on their smart phones and for facial recognition cameras to track individuals around a site. However, the expense and software development to fully implement these have not really been tested in South Africa to the best of our knowledge. That said, even if you do have these enhancements you will still come back to the following two critical success factors in getting time and attendance right:

  • Set the rules correctly in advance.
  • Manage the process daily/weekly to correct anomalies and get line managers to sign off.

Retrenchment Guidance – Part Two – Notification Procedures

In our previous article, we dealt with your payment obligations in a retrenchment process and we looked at part one of the guidelines seen as good practice by the Labour Court in a fair retrenchment process i.e. avoidance and reduction of the effects of retrenchment. This month we look at step 2, the notification procedure.

Good Practice Step 2. Notification Procedure

The requirement in this step is to notify employees (or their union) in writing that management is considering retrenchment allowing them to take part in proper consultations. The notice should give as many details as possible in order to allow employees to make suggestions and representations to management. If there is a “representative” union, they must attend the consultations.

It should include, at the very least:

  • The specific reasons why the retrenchment is being considered, including any pertinent facts and figures and where possible financial and production statistics.
  • Measures already taken by management to avoid or limit the retrenchment.
  • The proposed number of employees who may be affected.
  • The categories of employees who may be affected (foremen, drivers, operators, general workers, anyone over 55, on a final written warning, etc.).
  • The proposed date of the retrenchment.
  • The proposed dates and times when employees will meet to consult with management.
  • The proposed selection criteria e.g. Skill Retention, Apprentice Contracts, LIFO, early / voluntary retirement, temporary workers, employees on short time, etc.

If you do not notify correctly, you risk derailing your entire process.

Retrenchment Guidance – Part One

Editor’s Note: If you are planning any retrenchments or redundancies please speak to one of our experts in advance. We have retrenchment guidelines and draft letters that will help you through this challenging process.

In this newsletter we have two articles about retrenchment and your obligations as an employer. In our first article we deal with your payment obligations in a retrenchment process and we look at part one of the guidelines seen as good practice by the Labour Court in a fair retrenchment process i.e. avoidance and reduction of the effects of retrenchment.

Note that you have to follow the retrenchment procedure stipulated by the Labour Relations Act, or potentially pay penalties of up to 24 months’ salary as compensation. However, even if you are unable to reach full agreement with your employees or their union, where applicable, you can still go ahead and retrench once you have completed proper consultations with them – and continue consultations even after the employee has left your services! Obviously, if you can achieve a signed agreement, this would be first prize.

Employer Responsibilities: Payment

Your responsibilities when retrenching include the following payments;

  1. Any leave pay; and
  2. 1 month’s notice (depending on what their contract says and how long they have been with you) (the staff can be asked to work their notice or you can pay them out for this); and
  3. 1 week’s severance pay for every completed year they have worked for you

If you do mutual retrenchments, that means you or your adviser will sit with each person one by one and try to get them to accept the retrenchment without having to go through the formal process that the law asks for, which is more time consuming. To do this you would need to offer more in terms of payment (e.g. 1 week pay or more) to encourage them to accept.

Good Practice Step 1. Avoidance and Reduction of the Effects of Retrenchment

Management is obliged to implement all or certain of the following before implementing any retrenchment measures in order to avoid or reduce the effect of such action:

  • Reduction of the workforce through natural attrition
  • Restriction of new hirings by means of recruiting and promoting from within
  • Elimination of all casual labour
  • Non-renewal of short-term contracts of employment
  • Cessation of all overtime work
  • Voluntary retrenchments
  • Retirement of all employees over retirement age
  • Implementation of layoffs
  • Placing employees on short-time
  • Demotion / offering alternative jobs at lower pay or status

UIF Compliance Certificate Mandatory for any Government Tenders

Originally mentioned in 2018 by the Department of Labour, rumour has it that it will become standard for entities trying to procure government work to have an UIF compliance certificate. The guidance on how to obtain this certificate is available on this link.

Critical to planning for this is the two week turnaround time to get the certificate so businesses may wish to apply on a regular basis or plan very well.

CCMA – Prescription and Holiday Pay

Editor’s Note: the risk in this instance can be managed with proper documentation and processes. HRTorQue’s HR support product is ideally positioned to help employers with this type of risk.

In a recent CCMA ruling, an arbitrator sided with an employee and argued that given the difficult financial climate, prescription periods should be relaxed and required an employer to pay the employee for disputed holiday pay. Central to the argument was the fact the employer could show no evidence that the employee had been shown and understood the company’s policy on holiday pay.

While the case may be referred, a precedent has been set.

It is critically important for employers to manage their potential liabilities by making sure of the following:

  • They have comprehensive up to date policies and procedures which are consistent with their contracts of employment
  • They have a proper induction process where employees are taken through the policies and sign the documentation; and
  • They have a proper exit process where the employee is once again taken through all exit steps and confirms their understanding of any final payments;

With the right steps in place, it is difficult for an employee to say they were not aware of something, even if many years have passed.

Amendments to LRA Create a New Basis for Strike Interdicts

Author: Neil Coetzer Aitken (source: Cowan Harper Madikizela Attorneys)

On 20 March 2019, the Labour Court handed down judgment in the cases of Mahle Behr SA (Pty) Ltd and NUMSA & Others (D448/19) and Foskor (Pty) Ltd v NUMSA & Others (D439/19). In those matters, the Labour Court interdicted NUMSA from engaging in strikes on the basis that the Union had failed to conduct a secret ballot, as required by section 19 of the Labour Relations Amendment Act 8 of 2018.

The Labour Relations Amendment Act came into effect on 1 January 2019 and made it compulsory for Unions and employers’ organisations to include in their constitutions certain provisions dealing with means to ensure that secret ballots are held prior to engaging in a strike or lock-out. In addition, section 19 of the Amendment Act placed an obligation on the Registrar of Labour Relations to consult with the Unions and employers’ organisations on the most appropriate means to amend their Constitutions and to issue a directive to those Unions or employers’ organisations setting out the date by which such amendments should be affected. The Registrar is required to do this within 180 days of the commencement of the Amendment Act.

Importantly, section 19 also provides, inter alia, that a Union must conduct a secret ballot of its member before engaging in a strike, until such time as it has complied with the Registrar’s directive. It was common cause in the matters before the Labour Court that NUMSA’s constitution did not comply with sections 95(5)(p) and (q) of the Labour Relations Act 66 of 1995, as amended (“the LRA”) in that it did not provide for certain requirements concerning balloting processes.

The Labour Court pointed out that while section 67(7) of the LRA provides that a failure of a Union to comply with a provision in its constitution regarding a ballot may not give rise to or constitute a ground for any litigation concerning the legality of the strike, this section only applied to Unions that had complied with the requirements of section 95. NUMSA had not complied with those requirements.

NUMSA argued that the provisions of section 19 constituted an infringement of the respondent’s constitutional right to strike and, further, that section 19 was in any event not applicable since the obligation to conduct a secret ballot arose only after the Registrar issued the directive.

The Court found that neither of these arguments had any merit. The Court held that in order for a Union to avoid the consequences of section 19, NUMSA simply had to comply with section 95(5)(p) of the LRA. Section 19 requires simply that the Union conduct a secret ballot of members and such a provision, the Court held, did not infringe the right to strike.

The Court also concluded that the provisions of section 19 are clear and unambiguous and the Court was obliged to give effect thereto. It found that the legislation’s purpose was to ensure that a secret ballot was conducted by a Union prior to engaging in a strike during the transitional period following the enactment of the Amendment Act. The Court held that the requirement is peremptory and applies only to registered Unions whose constitutions do not contain a balloting requirement.

On this basis, the Labour Court interdicted NUMSA from engaging in any strike.

The judgment may be controversial for a number of reasons, including the Court’s interpretation of section 67(7) of the LRA. Nevertheless, it is likely that other employers may also now seek to interdict Unions and their members from engaging in strikes until such time as the Unions’ Constitutions have been amended to comply with the provisions of section 95 of the LRA. To that extent, the judgment is a positive development signalling an important shift towards improved governance and accountability for Unions.

The Future of Work – Big Data, Data Analytics & Artificial Intelligence (AI)

Editor’s note: Industry 4.0 is coming. The purpose of our series is to get employers thinking about ways to use this new technology to improve their business; and for HR professionals to understand the impact this might have on the workforce and their own roles requiring greater analytical abilities.

In our third edition of the Future of Work, we look at the evolution of the “social enterprise” with an increased external focus for all members of the organisation combined with increased collaboration by employees within teams.

Historic Model

The traditional organization is very hierarchical with significant energy wasted by most employees on inward focused activities with little connection to the end customer.

The Social Enterprise

With the support of technology, it is anticipated the Future of Work will allow successful businesses to be much more focused on the end customer. This will be accompanied by increased collaboration between employees, with employees likely to be organized in a multi-functional “network of teams” as opposed to hierarchical structures. The team dynamic is anticipated to support greater problem solving, improved decision making and flexibility.

Impact on HR

According to a 2019 Deloitte study the impact on HR is to look at employees differently with a focus on:

  • Accessing capabilities not just people;
  • Embedding learning into all parts of an employee’s role to improve decision making abilities;
  • Promoting mobility as a means of development and engagement; and
  • Leveraging technology

Where We are Today

Collaboration tools and other technology are already available in theory to promote improved interaction between teams and to set up teams into more flexible units. The challenge in practice and particularly in South Africa seems to be the following:

  • Recruitment & Leadership – finding the right talent and leadership to be able to manage nimble teams;
  • Organisational memory and established businesses – for many of the established businesses a change of this magnitude comes with significant risk and corporate memory tends to come with its own inertia;
  • Training – while there are better online and augmented reality tools emerging, training for problem solving as opposed to traditional topics is not quite there yet;
  • Cultural and legacy barriers – the Social Enterprise model assume an inclusive organisation where diverse views and people are encouraged with the aim of improving problem solving and creating a better connection to end consumers. There is much that still needs to be done in this area.