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HRTorQue Reporter
November 2016
 
HRTorQue Reporter Archive
Editor's Note
If you read nothing else, please take note of the first article on a recent landmark Labour Court ruling which fined employees for continuing to strike despite a court order allowing the union and employer a stay to make submissions. For too long we have seen instances where employees have continued to strike despite their own unions calling for the strike to end. Perhaps some semblance of structure and sense will prevail in these heated exchanges - one can only hope.

In the remainder of this edition we provide a how to guide on reporting and claiming for Injuries on Duty, remind employers of their responsibilities where they arrange a year-end function and alcohol is available (even if not on work premises) and urge employers to perform pre-employment checks based on fingerprints and not on IDs (there are too many fakes out there).

Finally, because it is important, we remind you again of the imminent employment equity filing deadline (not too far away).

As usual, should you require any further detail on any of these topics, please feel free to contact us.
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Table of Contents
1. R1 Million Fine for Striking Workers in Contempt of Court
2. Injury on Duty - How to guide on reporting and claiming your money back
3. Year-end Functions - Employers responsibility where alcohol is involved
4. Pre-employment Checks - Fingerprints not IDs please
5. Employment Equity Filing Deadline
6. HRTorQue December Office Closure
7. Contact HRTorQue
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1. R1 Million Fine for Striking Workers in Contempt of Court
Author: Jonathan Aitken
Editor: This is a landmark ruling and reflects a very pragmatic approach by the Labour Court to reclaim some sense of discipline in strike action by employees.

In a recent Labour Court ruling (Betafence South Africa (Pty) Ltd v NUMSA & Others (C194/2016) [2016] ZALCCT 33) the Court took a ground breaking position and fined striking employees for contempt of court.

In this case, Betafence and NUMSA agreed to the terms of a Court order which suspended a strike with immediate effect and time-limits were agreed for both parties to file affidavits in the Labour Court application. Despite this court order, employees continued striking. Betafence applied to the Court and the Court found the striking workers themselves (not the union) to be in contempt of court.

In their ruling the Court concluded:

"An observation that needs to be made in this Court is that employees, especially in the face of strike interdicts, routinely disregard the orders of this court for no reason other than that they simply do not like them. This contemptuous approach towards orders of this court is in some or most instances, aggravated and/or encouraged by Unions, their officials and/or shop stewards. In some instances, as in this case, employees refuse to even heed the advice of their union representatives and leaders. In the latter instance, and where unions even confirm in papers before the court that employees have indeed refused to heed court orders, the invariable conclusion to be reached is that the non-compliance by the employees was indeed both wilful and mala fide."

"This level of contempt has reached a point where if unchecked, the rule of law will become meaningless. In the end, anarchy and mayhem, which normally characterises most industrial actions we have witnessed, will become the new normal. This cannot bode well for our constitutional democracy, and only a stern approach by the courts can stop this slippery slope."
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2. Injury on Duty Reporting Process and Claiming your Money
Author: Tsepo Mkhwanazi

How to Guide

 
We often have enquiries about the process to be followed when reporting an injury on duty (IOD). Linked to this is often the more important question, "how am I going to claim my money back?".

Reporting an Injury on Duty

The process to follow in reporting an injury on duty is:
•   An employer must submit a W.C.L 2 and W.C.L 3 form to the Commissioner (Department of Labour) within 7 days of being informed of an occupational injury.
Within 14 days of the injury, the doctor approached to assess the employee's injury needs to complete a W.C.L 14 form stating how long it will take for the employee's injury to heal. The employer is required to submit the W.C.L 14 online by this same deadline.
If the employee's injury will take a long time to heal, the doctor (on a monthly basis) will have to provide the employer with a W.C.L 5 form to submit to the Commissioner. The W.C.L 5 is a monthly progress report on how the injury is healing.
When the employee's injury heals, the doctor is to state on their last W.C.L 5 that the injury has healed and recommend whether the employee is able to come back to work or not. After receiving the doctors last W.C.L 5, the employer is to then submit it to the Department of Labour together with a W.C.L 6. (a W.C.L 6 is a document that declares that the employee is back at work and the case is being closed).

Claiming your Money Back

On the W.C.L 6 submitted to the Department of Labour, the employer needs to state and include proof of the following:
•   The compensation they paid their employees on the days they were booked off by the doctor due to an IOD; and
The medical costs that the employer paid for their employee.

Employers will need to keep a record of all invoices for expenses as these will need to be included in the company's Occupational Health and Safety file.

Upon successful submission, the compensation fund will refund the employer the claimed funds.

Please contact us if you need help with any part of this process.
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3. Year-end Functions - Employer's responsibilities where alcohol is involved
Author: Melany Bydawell
Editor: Please do be careful around the silly season. It just takes one incident to ruin the year.

2016 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 they 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 demonstrate that they have made an effort to 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:
•   Advising 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.
Placing 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.
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4. Pre-employment Checks - Fingerprints not IDs
Author: Jonathan Aitken
A word to the wise: Please don't ONLY do an ID check when performing pre-employment screening. It is essential to do a fingerprint check instead given the wide scale ID fraud in this country.

In a recent case an employer was required by circumstances to do a full fingerprint check for all employees. When the results came back the employer discovered one of their employees was representing themselves under a completely false name and had a long criminal track record.

Please do also make sure you have permission from employees/prospective employees before you do the check. This is essential under POPI.
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5. Employment Equity Filing Deadline
Author: Jonathan Aitken
Editor: We really encourage employers to get organised to submit their employment equity reports on time. As mentioned in previous editions this is a real area of focus for government to levy fines and penalise employers.

Submit Employment Equity Reports by 15 January 2017
Failure to comply could result in a fine of up to R1.5m.


Employment Equity is a legislative requirement for all companies deemed to be designated employers. A designated employer means: a.
•   A person who employs 50 or more employees.
A person who employs fewer than 50 employees but has a total turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of this Act.

If you have more than 50 employees your organisation is deemed to be a designated employer and is therefore required to comply with the Employment Equity Act.
 
As designated employers, you are required to comply with the following in terms of the Employment Equity Act:
1. Submit Employment Equity Reports and Income Differential statement, manually by
    1 October, or submit electronically by 15 January 2017

2. Assign a Senior Manager
3. Establish a Consultative Forum
4. Prepare an Employment Equity Plan
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6. HRTorQue December Office Closure
HRTorQue will be closing on 22 December 2016, and will re-open on 9 January 2017.
 
During this time, we shall have a skeleton staff to cater for those clients we know will not be closing. We shall make special arrangements for staff to be available for them. During the shutdown time, we will monitor the [email protected] email address.

In case of emergency only please contact:
Karen van den Bergh: 082 891 1722 (for any payroll or 3rd party payment queries)
Nicky Hardwick: 083 788 6999 (for any labour or HR issues) or email [email protected]
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7. Contact HRTorQue
Head Office (Durban)
Phone: 031 564 1155  •  Email: [email protected]  •  Website: www.hrtorque.co.za
Address: 163 Umhlanga Rocks Drive, Durban North, KwaZulu-Natal

Johannesburg Office
Ground Floor, West Wing, 6 Kikuyu Road, Sunninghill, 2191
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