HRTorQue Outsourcing
HRTorQue Reporter
July 2018
 
HRTorQue Reporter Archive
Table of Contents
1. Health and Safety Roles in the Workplace
2. Notice of Publication of Draft Taxation Law Amendment Bills
3. Dishonesty and the Employer's Onus in Dismissal Disputes
4. Personal Income Tax Filing - HRTorQue Tax Team
5. The Impact of Stress and Psychological-related Illnesses in the Workplace
6. Can an employer cancel leave which has already been granted?
7. Contact HRTorQue

Should you require any further detail on any of these topics, please feel free to contact us.
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1. Health and Safety Roles in the Workplace
Author: Delene Sheasby (www.worksafetysa.co.za)
As the company HR Specialist, are you responsible for Health and Safety? Are you fully informed of your organisation's Occupational Health and Safety legal compliance requirements? You do realise that for noncompliance of the Act, an employer (and maybe you) could incur both civil or criminal liability?

Have you heard about an Occupational Safety Practitioner or a Safety Officer or a Safety Representative? Surely these are more or less the same? The answer is no.

There is a difference and depending on the type of organisation you have (i.e processes, risks, and employees, environment), you may need one of or all of these):

The Occupational Safety Practitioner is a person who applies their expertise gained from a study of safety science, principles, practices and other subjects and from professional safety experience to create or develop procedures, processes, standards, specifications and systems to achieve optimal control or reduction of the hazards and exposures which may harm people, property and/or the workplace environment. The Safety Practitioner will have the necessary qualifications and experience to perform their roles in a competent manner and should be registered as a Professional Practitioner with a professional body.

The Health and Safety Officer is usually a full-time job, commonly (but not necessarily) appointed on a construction site, in which case the Health and Safety Officer must be in possession of a relevant formal qualification. The Health and Safety Officer, in the construction industry, must also be registered with the South African Council for Project and Construction Management Professions (SACPCMP) in order to work as a Health and Safety Officer.

The Health and Safety Officer-s tasks include:
•  Developing, implementing, and improving the health and safety plans, programs and
    procedures in the workplace
•  Ensuring compliance with relevant health and safety legislation
•  Identifying OHS-related training needs in the workplace
•  Conducting safety inspections and risk assessments
•  Investigating workplace accidents
•  Reporting on OHS-related activities
•  Supervising junior health and safety employees

The Health and Safety Representative is required to be designated in writing in terms of the Occupational Health and Safety Act in workplaces where the employer employs more than 20 employees.
 
Health and Safety Representatives act as the liaison between senior management and employees, and may be responsible for:
•  Assisting the Health and Safety Officer. (if available)
•  Attending Health and Safety Committee meetings.
•  Identifying hazards and risks in the workplace.
•  Listening to and investigating OHS-related complaints from employees.
•  Assisting with the investigation of accidents that occur in the workplace.
•  Making OHS-related suggestions to senior management and/or the Health and Safety
    Officer.
•  See Occupational Health and Safety Act Section18

The role of Safety Representative is not always a full-time job and sometimes takes on the above-mentioned responsibilities in addition to their regular full-time jobs. While Safety Representatives are also required to undergo relevant training to assist them in carrying out their responsibilities, they do not necessarily need to study toward formal OHS qualifications.

Some workplaces do not require a Safety Practitioner or a Safety Officer, However, usually Safety representatives will be in place. If this is the case, senior management must take responsibility for employees' health and safety and not expect or rely only on the Health and safety representative for compliance.
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2. Notice of Draft Taxation Law Amendment Bills
Author: Jonathan Aitken
To give effect to the tax proposals announced by the Minister of Finance in the Budget review of 21 February 2018, the following draft Bills have been published (16 July 2018) on the SARS and National Treasury web sites:
•  The Taxation Laws Amendment Bill;
•  The Tax Administration Laws Amendment Bill;
•  The Explanatory Memorandum to the Taxation Laws Amendment Bill, and
•  The Memorandum on the Objects of the Tax Administration Laws Amendment Bill
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3. Dishonesty and the Employer's Onus in Dismissal Disputes
Author: Neil Coetzer (Cowan-Harper-Madikizela Attorneys)
An apple a day?

In the case of Compass Group Southern Africa (Pty) Ltd v van der Merwe N.O & Others (JR633-16, 9 February 2018) the employer had approached the Labour Court with a review application, seeking to review and set aside the findings of the Commissioner who had found the dismissal of the employee to be both procedurally and substantively unfair.

The employee, whose duties included storing and serving apples at a hospital, was caught in possession of several apples which she was carrying in a bag obtained from the hospital ward. Upon being confronted by her employer, the employee apologised and begged for forgiveness. The employee was found guilty of misconduct and dismissed by the employer.

The employee's version at the enquiry, and subsequently the arbitration, was that she had bought the apples from a vendor and that she had taken them with her to work. While the vendor was not called as a witness at the disciplinary enquiry, at the arbitration he indicated that the employee had left the apples with him and that the employee had gone to collect a plastic bag to place them in. These were two mutually destructive versions which placed serious question marks over the employee's defence.

It was common cause that the employee had access to apples on the day of the incident. The employee also conceded that the apples found in her possession were 'strikingly similar' to those that were served in the hospital ward.

The Court commented on the onus of an employer to prove that a dismissal was fair. It explained, with reference to Woolworths (Pty) Ltd v CCMA & Others (2011) 32 ILJ 2455 (LAC), that:-

"In an unfair dismissal case relating to misconduct, the 'evidentiary burden' starts with the employer but once the employer provides prima facie proof of the misconduct as alleged, the 'evidentiary burden' shifts to the employee to prove his own defence. If the employee then fails to put up a defence or fails to prove his defence, the employers [sic] prima facie proof of misconduct becomes conclusive proof and the employer has then discharged the 'overall onus' that always rested with it."

The Court found that the employer had established a prima facie case of misappropriation of company property or dishonest conduct on the part of the employee and that therefore the employee was required to 'prove to be honest what admittedly on its face looked dishonest'. The Court found that the employee clearly failed to do so and then had to consider whether her dismissal was fair.

The Court found that the employee had engaged in conduct which essentially amounted to theft, concocted an obviously dishonest defence, showed no real remorse and, finally, occupied a position of trust within the Company. The Court accepted that the Labour Appeal Court has in the past followed a strict approach in respect of dishonest conduct by employees, particularly for reasons related to the employer's operational requirements. Importantly, the Court found that persistent theft of stock 'places in jeopardy the security of employment of all employees'. The Court also found that there was no basis to find that the dismissal of the employee was procedurally unfair.

In the circumstances, the Court set aside the arbitration award and found that the dismissal of the employee had been both substantively and procedurally fair.

This judgment confirms that dishonesty in the workplace will usually result in dismissal. The Courts will not expect an employer to continue to employ an employee who has broken the trust relationship or engaged in conduct which has negatively impacted on that relationship.
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4. Personal Income Tax Filing - HRTorQue Tax Team
Author: Dave Beattie
The tax filing season officially starts on 1 July 2018 for the 2018 tax year (1 March 2017 to 28 February 2018). The closing date for e-filing submissions will be the end of October 2018 for normal taxpayers and the end of January 2019 for provisional taxpayers.

Pricing:
 
Our charges for completing tax returns will depend on when we receive your information. Premium pricing will kick in for last minute returns to try and avoid the challenges we face every year.

Information Received By Cost of Return incl. VAT
15 October 2018
(15 December for provisional taxpayers)
R810.00
Later than 15 October 2018
(later than 15 December for provisional taxpayers)
R1,625.00

Please Note: We reserve the right to charge a surcharge on the completion of tax returns that require the drafting of additional schedules.

The cost of completing these tax returns will include the following services:
•   Collection and collation of supporting documentation necessary to complete your tax return
Completion and filing of the tax return
Checking of assessment and notifying you of the result thereof
Submitting any additional information requested by SARS via e-Filing. (Note this is SARS' first request for information and additional charges will apply where further information is required, or a dispute is necessary.)
Further charges will apply where SARS first query extends to additional queries, and possibly an audit. Fees will be billed at an hourly consulting rate of R750 plus VAT or part thereof. This approach is necessary due to the ever-increasing queries made by SARS. These extended queries require further collation of the necessary documentation and hence our fee covers our time spent. Should you wish to take up the issue personally we will forward you all the necessary supporting documentation to do so.

Process:

Due to the volume of work anticipated during this filing season and the need to maintain the high standards required by the South African Institute of Tax Professionals I will once again be assisted this year by a broader team, so please don't be surprised if you receive correspondence from Erin, Gina or Megan.

Returns that are submitted via e-Filing are generally assessed within a couple of minutes and the assessment will be forwarded to you in cases where payments to SARS need to be made. If you are due a refund, please keep an eye on your bank account and notify me if you have not received it within 30 days. Due to the volume of returns submitted it is not possible to monitor the progress of each refund payment. SARS no longer sends out notifications where they experience bank account problems; and due to Call Centre congestion and the risk of fraud they are loathe to assist with refund verifications.

If you have all the necessary documentation to complete your tax return and would like to be one of the 'early birds', please can you get this information through to me as soon as possible and the work will be processed on a first come, first served basis.

Provided you are on my e-Filing profile we will endeavour to lodge your return within 72 hours. For new clients your details will need to be loaded onto my e-Filing profile. Once loaded into e-Filing it takes approximately 48 hours for the profile to be activated. Please note that the information that you provide in this regard must be exactly that which is reflected on e-Filing, otherwise the request will be rejected.

In the event of SARS making an error on the assessment the tax return completion fee includes a maximum of 30 minutes consulting with SARS on your behalf. Any interventions that exceed this period will be billed at an hourly consulting rate of R750 plus VAT or part thereof. This approach is necessary due to the ever-increasing errors made by SARS. Should you wish to take up the issue personally we will forward you all the necessary supporting documentation to do so.

Information Requirements:

To complete your tax return accurately and timeously we require the following information:
PLEASE NOTE ALL DOCUMENTATION TO BE SENT TO [email protected]
 
•   IRP5 certificate/s (Please request a copy from your employer so that we can verify that the IRP5 agrees to the IRP5 on the pre-populated tax return)
IT 3(a)'s relating to untaxed income, IT 3(b)'s for interest and dividends and IT 3(c)'s for any capital gains received
Sale of any capital assets
Details of any other income that you may have received from any sources (e.g. if earning rental income, we would need the total income earned in the year and a schedule of the expenses incurred in generating the rental income (i.e. interest paid on bond, levies, management fees, repairs and maintenance, electricity / lights and water etc.)
Medical aid tax certificate
Retirement annuity tax certificate
Travel Details: Opening and closing mileage, business / private km's, total km's travelled, car make and model and original cash purchase price. You are required to maintain a detailed logbook if you want to claim business mileage against your travel allowance. This detail includes the clear separation of the business and private mileage undertaken and the listing of the clients visited daily. Please email this logbook to me.
Should you have use of a company car please note that you are required to maintain a detailed logbook. In the event of a SARS review / audit this detailed logbook will need to be sent to them. Please email this logbook to me.
If you earn mainly commission (more than 50% of total remuneration) then we require a schedule listing the expenses that you incurred during the tax year to earn that commission. Please retain the supporting documentation for 5 years as SARS may audit you at any time.

If any of the details listed below have changed please notify me so that we can make the necessary changes on the tax return:
•   Marital status (kindly advise if you are married in / out of community of property). If you are married in community of property and receive investment or rental income in addition to your salary, please send through your spouse's name and ID number.
Residential and postal address
Telephone / cell phone numbers / email address
Bank Details: Account number / holder, branch code and type of account (very important). If these details change, you will be required to take a certified copy of your ID, proof of residence and original current bank statement (with bank stamp on it) to your nearest SARS office in person. SARS requires you to do this in person due to recent occurrences of fraud.

Should you have any questions regarding this process please do not hesitate to contact the team on [email protected].
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5. The Impact of Stress and Psychological-related Illnesses in the Workplace
Author: Shahnaaz Bismilla and Kerry Gantley (Cowan-Harper-Madikizela Attorneys)
The work environment has changed drastically over the last few years and as we transition to the fourth industrial revolution, employers need to be aware of the changing risks that business will face. With technology, we spend more time in meetings, at our desks and leading sedentary lifestyles. In South Africa, the state of the economy, with its political, economic and financial factors means that employees are living in much more stressful times.

It, therefore, comes as no surprise that stress-related illnesses have increased substantially over the last few years. Insurance companies have seen a substantial increase in the number of disability claims resulting from psychological, psychiatric and mental disorders.

According to a 2016 study conducted by the South African Depression and Anxiety Group (SADAG), 1 in 4 employees has been diagnosed with depression. How are employers dealing with employees diagnosed with depression? If you, as an employee, were diagnosed with a mental illness, would you feel comfortable disclosing your mental health status to your employer? If so, you would be only 1 in 6 employees who would be willing to do so according to a 2017 survey by SADAG.
 
The recent Labour Court case of Jansen v Legal Aid South Africa [2018] ZALCCT 17 (16 May 2018) concerned the automatically unfair dismissal of a long-standing employee of the Legal Aid Board because of depression.

The employee had been in the employ of the employer since 2007 and by all accounts was a good performer. During 2010, the employee was diagnosed with major depression. The employee disclosed his condition to the employer and accessed the employer's wellness program. During 2012, the employees' condition deteriorated due to his personal circumstances which were exacerbated by his supervisor unexpectedly testifying on behalf of his spouse during his divorce proceedings.
 
The employee had difficulty dealing with the actions of his supervisor and was feeling betrayed and mistrustful. This was brought to the attention of the employer who was advised by a clinical psychologist that the issue needed urgent resolution as it was negatively affecting the employee's mental state. The employer ignored this advice and the employee's condition deteriorated, affected further by the employer's inaction. As a result of his condition, the employee was absent from work for a period of 17 days during August 2013 and, upon his return to work, he informed the employer of his mental state and the difficulties he was experiencing. Again, the employer ignored the issue and instead notified the employee that his leave of absence would be regarded as unpaid leave.

On 7 November 2013, and whilst the employee was on sick leave, the employer attended the employee's residence and issued him with a disciplinary charge sheet for misconduct, ranging from unauthorised absence, a failure to notify the employer of his absence to insolence and a failure to obey a reasonable instruction.

The employee did not deny his conduct and upon receipt of the charge sheet once again alerted the employer to his mental condition and the severe impact it was having on him. The employer ignored this evidence and persisted with the disciplinary action, convened a disciplinary enquiry and summarily dismissed the employee.

The termination of his employment together with the additional strain of financial loss of income further exacerbated the employee's mental health and his personal circumstances deteriorated even further.

In dealing with this matter in the judgment, Acting Judge Mthomebeni confirmed that at all relevant times the employee was suffering from a mental condition and that the employer was aware of his condition. The Judge confirmed that the employer was aware that the employee had a mental illness and was therefore under a duty to reasonably accommodate the employee. The Court found that the employer failed to take into account the mental state of the employee at the time that he perpetrated the misconduct.

The Judge reasoned that the employee was treated unfairly because of his mental condition and therefore on the facts of this particular matter an automatically unfair dismissal had been established. Interestingly, the employer chose not to lead any evidence. The Court awarded the employee reinstatement with retrospective effect. In addition, and having due regard to the suffering incurred by the employee both during his employment and subsequent to the termination thereof, occasioned primarily in the Court's view by the employer's continuous disregarding of the employee's condition, the Court further awarded the employee a further 6 (six) months compensation as a "solatium" to assuage the hurt and indignity caused by the employer's actions.

In assessing the merits of this matter, the Court ruled that the employee's depression did not amount to a disability. In coming to this conclusion, the Judge had regard to the definition of disability as set out in Section 1 of the Employment Equity Act 55 of 1998, as amended.

The EEA defines a disability as a:-
"…long term or recurring physical or mental impairment which substantially limits their entry into, or advancement in Employment".


Whilst in this case the Judge found that the employees' depression did not amount to a disability, in certain circumstances depression (and other psychological, psychiatric and mental disorders) may amount to a disability especially if the condition falls within the definition of what constitutes a disability as defined in the EEA and as stipulated in the Code of Good Practice on the employment of persons with disabilities. The Code provides excellent guidance to both employers and employees in this respect.

Employers should recognise that there are different types of depression on a wide spectrum. The South African College of Applied Psychology recognises 6 different types of depression ranging from clinical depression to psychotic depression. Where the form of depression falls within the definition of a disability, it should be recognised as such.

According to the World Health Organisation ("WHO"), depression is the leading cause of ill-health and disability in the workplace. SADAG's research indicates that employees are taking more than 18 days off work due to depression but are reluctant to disclose depression as a reason for sick leave due to the stigma associated with the condition. Such absenteeism has a direct financial impact on an employer. However, for those employees who are reluctant to disclose their condition, this can also result in a loss of productivity for employers, incurred because of employees who report for duty but are unable to perform (presentism).

Employers should also be mindful of the stigma associated with mental illness, including depression and in many instances, employees are reluctant to disclose their condition. Considering the prevalence of depression and the direct negative impact it has on the workplace, employers are encouraged to create a culture of openness and understanding that fosters a safe space for disclosure where employees are reassured that they will not suffer negative consequences but instead will be supported and assisted.

Employers must play an active role to create this environment. According to the South African Depression and Anxiety Group ("SADAG"), employers can assist by:
•   Educating employees on depression and especially how cognitive symptoms can affect work performance;
Raising awareness of any existing employee wellness assistance programmes AND emphasise that they can help with mental health problems, like depression, by providing access to medical facilities;
Promoting a culture of acceptance around depression and other psychiatric disorders – they are no different to diabetes or asthma;
If an employee shares their struggle with depression, referring them to a mental health care professional and reassuring them the illness can be treated; and
Exploring creative ways to support an employee's recovery, like flexible/adjusted working hours.

Understanding that wellness is not only about physical conditions, but also mental conditions, is fundamental in any workplace and employers should consider having innovative policies and processes in place in how they will address such conditions and as to how they should adopt a holistic approach. Employers should introduce wellness initiatives and take proactive steps to identify employees at risk and to encourage employees to personally take charge of their wellness.

The South African Human Rights Commission has developed an excellent resource on disability which is useful in understanding what constitutes a disability and how to manage disabilities in the workplace.
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6. Can an employer cancel leave which has already been granted?
Author: Nicky Hardwick
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.
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7. Contact HRTorQue
Durban
Phone: 031 564 1155  •  Email: [email protected]  •  Website: www.hrtorque.co.za
Address: 163 Umhlanga Rocks Drive, Durban North, KwaZulu-Natal
 
Johannesburg
Ground Floor, West Wing, 6 Kikuyu Road, Sunninghill, 2191
 
Cape Town Office
Ground Floor, Liesbeek House, River Park, Gloucester Road, Mowbray, Cape Town, 7700

Bloemfontein Office
62 Kellner Street, Westdene, Bloemfontein

East London
24 Pearce and Tecoma Street, Berea, East London

Port Elizabeth
280 Cape Road, Newton Park, Port Elizabeth

Polokwane
125 Marshall Street, Polokwane

Nelspruit
Promenade Centre, First Floor, Suite 11A, Nelspruit
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