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].

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].

Salary benchmarking

Organisations often struggle to determine how to remunerate their employees fairly. In a market where quality, skilled employees are hard to find it is important to ensure that you are competitive in terms of setting remuneration levels to attract and retain high calibre staff.

Questions like:

  • Do we have internal pay parity amongst employees?
  • Are staff paid fairly against the market?
  • What do we use for benchmarking?
  • How do we do the benchmarking?

are commonplace and are sometimes difficult to answer without the correct tools and skills.

HRTorQue has the capability to conduct an internal benchmark for all your staff and compare your internal remuneration structures against comparative external market data. This benchmarking is becoming increasingly relevant based on legislative requirements around ‘equal pay for equal work’.

eTorque as a system can be very helpful in providing easy access to remuneration data for benchmarking purposes.

For more information on the Benchmarking Intervention or on how to use e-TorQue in this regard, please contact [email protected].

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

Derivative Misconduct – Constitutional Court Ruling

The Constitutional Court recently handed down an unanimous judgement in the matter between NUMSA and Dunlop which dealt with the concept of derivative misconduct, providing clarity on this issue and the tests to be considered particularly where employees cannot be individually identified as being part of an incident. 

Employees, all members of NUMSA, embarked on a protected strike pursuant to a wage dispute. As the strike continued it became increasingly violent with many of the employees committing serious acts of misconduct. An interdict was sought and granted in an effort to deter the violence and misconduct, alas to no avail.

The employer subsequently dismissed all the striking employees pursuant to their alleged misconduct during the strike on the basis of derivative misconduct. Challenging the fairness of the dismissals, NUMSA brought the matter before an arbitrator at the CCMA, and the arbitrator in coming to his decision distinguished the dismissed employees into three different categories:

  • Those positively identified as committing violence;
  • Those identified as present when the violence took place but who did not physically participate; and
  • Those not positively and individually identified as being present when the violence was being committed.

The Arbitrator found that the first two groups had been fairly dismissed, but that the third group’s dismissal was substantively unfair and ordered their reinstatement. On review in the Labour Court (LC), the court set aside the Arbitration Award and found that the employees had been fairly dismissed. NUMSA then lodged an appeal before the Labour Appeal Court (LAC) where the LAC upheld the LC’s decision.

NUMSA then brought the matter before the Constitutional Court (CC) where the court considered the historical understanding of the concept of derivative misconduct as that of a common law duty on the employee to act in good faith and in the best interests of the employer (the reciprocal duty), while in return the employer has the general duty of fair dealing with its employees.

The court described the expected duty on the employee to disclose the misconduct of fellow employees; while the employer had the obligation to offer protection and guarantee the employee’s safety while doing so. The court found that the reciprocal duty argument had failed due to the absence of appropriate safety and protection by the employer once an employee came forward.

In determining derivative misconduct, the chain in determining whether an employee is guilty or not, is a lengthy one. In determining this one should consider that the most probable inference was that each employee was:

  • present when the violence was committed;
  • would have been able to identify those who committed the violent acts;
  • would have known that the employer needed that information from them;
  • with possession of that knowledge, failed to disclose the information to the employer; and
  • did not disclose the information because they were guilty.

The most probable inference in this case was found to be that only some of the employees were present and therefore to dismiss all in the absence of individual identification would not be justified.

Dunlop’s expectation of its employees to come forward with information regarding those who had committed acts of misconduct, coupled with its failure to ensure their safety and protection thereafter was ultimately what lead to its loss before the Constitutional Court. Furthermore, Dunlop’s case failed on the consideration of probable inference, and the court found that to dismiss all employees in the absence of individual identification would not be justified. The Arbitration Award therefore stood, and the third group of employees were ultimately reinstated.

Substantive Fairness in Dismissal

(Source: IR Network LexisNexis)

South African Commercial, Catering and Allied Workers Union obo Maribe / Flamingo Casino – (2019) 28 CCMA 8.37.5 (CCMA) also reported at [2019] 4 BALR 433 (CCMA).

Subject Matter Classification:

Substantive fairness in dismissal – Misconduct – Racist language – Employee warning colleagues that they faced dismissal because they were black after colleague dismissed by white presiding officer – Dismissal fair. 

Mini Case Summary:

The applicant employee was dismissed for declaring while defending a colleague in a disciplinary hearing that “this is a racist issue” and telling employees afterwards that they faced dismissal because they were black. The employee denied making a statement about a racist issue during the disciplinary hearing but admitted that he had told employees afterwards that they faced disciplinary action because they were black.

The Commissioner accepted that the employee had uttered the words “this is a racist issue” and had also told employees that they faced dismissal because they were black. There was clearly a link between the two comments. The employee had not been charged with racism, but with uttering comments which clearly had racist connotations because they were uttered immediately after an employee had been dismissed by a white presiding officer. Moreover, the applicant had previously been warned for making racially charged comments. Dismissal was, accordingly, appropriate in the circumstances.

The dismissal was upheld.

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.

Can an employer cancel leave which has already been granted?

What happens when an employee has applied for leave, their manager has approved the leave and then operational circumstances change and the employee is required on site? Can an employer cancel the employee’s leave?

In ordinary circumstances, an employer can (within reason) retract any leave based on operational requirements as leave is given at the employer’s discretion. If an employee then does not arrive at work, depending on the individual circumstances (for example if he/she is sick), they could be disciplined.

From an ethical perspective however, the employer should consider the circumstances for the leave before cancelling and also the impact of cancelling on the employee. For example:

  • If the leave is important personally e.g. for an employee to attend his/her child’s wedding then it would have very negative long term consequences for the employee’s morale should the leave be cancelled;
  • If an employee has spent money on arranging travel and accommodation it would be inequitable to cancel the leave unless the employee is at the very least compensated for these expenses.

In these instances, we would consider the smart thing to do would be for employers to carefully consider whether it is really necessary to cancel the leave.

Racism in the Workplace and Hate Speech

There has been a lot to talk about on this topic following on from the Constitutional Court Ruling on 17th May 2018 in the matter between Rustenburg Platinum Mine vs South African Workers Association obo Meyer Bester.

In summary, the facts and history of the case leading up to the Constitutional Court are as follows.

The case relates to an incident in 2013 wherein Mr Bester pointed his finger at a fellow worker and told him “verwyder daar die swart man se voertuig”. Mr Bester was charged with insubordination and making racial remarks and was dismissed following a disciplinary enquiry. During the enquiry he denied ever saying the words “swart man” and was unrepentant and confrontational with the employer’s witness.

The matter was referred to the CCMA and the Commissioner found that “swart man” was a descriptor and not racist. The dismissal was found to be both substantially and procedurally unfair.

The matter was then taken to Labour Court on review. The Labour Court found that referencing a person as “swart man” was in fact racist and derogatory and that Mr Bester was fairly dismissed.

Mr Bester then lodged an appeal in the Labour Appeal Court. The Court found that taking into account the context in which the phrase was used, the inference was that the phrase was not necessarily racist and derogatory and the dismissal was therefore found to be unfair both substantively and procedurally.

Finally the matter went to Constitutional Court which found the following:

  • The Labour Appeal Court’s point that the phrase was neutral did not take into account or recognise the legacy of apartheid and racial segregation which has resulted in us living in a country that is racially charged.
  • CCMA and The Labour Appeal Court also failed to take into account the circumstances around the use of the phrase “swart man”.
  • Mr Bester also did not show any remorse for his actions and had made no attempt to apologise.

The Constitutional Court found that the dismissal was the appropriate sanction.

This decision is an important one because it deals with the more subtle and less obvious forms of racism and assists in creating a test for determining whether a neutral statement is in fact neutral or racist.

As employers, it is imperative that we understand our obligations in this regard and have adequate policies, rules and procedures in place to ensure that employees understand what is and is not acceptable as well as what the consequences are if they transgress. This is especially true taking into account the Bill for “The Prevention and Combating of Hate Crimes and Hate Speech Bill”.

The Bill aims to provide protection for person or persons against any form of communication which is threatening, abusive or insulting.

Once adopted, this Bill will criminalise hate speech and hate crimes which often take place in the workplace. This Bill will now make employees susceptible to disciplinary and civil action as well as criminal prosecution.

We are entering a time where people will be held accountable for their actions and as employers we need to be moving forward too.

If you require assistance with policies and procedures relating to racism in the workplace, please feel free to contact [email protected] for assistance.