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| Table of Contents |
1. Why are people dishonest?
2. Relevance of Prior Warnings When Considering a Sanction
3. Unfair Discrimination - The Burden of Proof
4. Alcohol in the Workplace
5. December Payroll Dates
6. The COID Dilemma for Employers and Learners
7. Change in Official Rate of Interest - 23 November 2018
8. Contact HRTorQue
Should you require any further detail on any of these topics, please feel free to contact us. |
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| 1. Why are people dishonest? |
| Author: Alan Hosking (www.hrfuture.net) |
Editor: Alan Hosking is the Publisher of HR Future magazine, www.hrfuture.net, @HRFuturemag. 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 Disruptordaily.com 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! |
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| 2. 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. |
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| 3. Unfair Discrimination - What is the Burden of Proof? |
| Author: Tanya Mulligan (Cowan Harper Madikizela Attorneys www.chmlegal.co.za) |
Introduction
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.
Conclusion
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. |
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| 4. Alcohol in the Workplace |
| Author: Melany Bydawell |
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.
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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. |
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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. |
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| 5. December Payroll Dates |
| Author: Karen van den Bergh |
The Festive period is fast approaching and, to enable us to ensure that your payroll runs are processed effectively and trouble free, we would like to schedule your payroll runs for December 2018 and January 2019.
Therefore, we'd appreciate it if you'd let us know when your pay runs are anticipated to take place.
If you are closing down in December, please provide a cell number and contact name for the person who can be contacted regarding the proof of payment confirmation in December. This is often a challenge that we face when companies are closed.
While we will try to accommodate all requests, please be aware that we may not be able to accommodate all last minute changes. In addition, we cannot accept any responsibility for payroll being delayed at year end where clients' staff are unavailable to approve the payroll before submission.
Should you have any queries, please contact us or your dedicated payroll administrator.
We take this opportunity to wish you and your family best wishes for the Festive Season and thank you for entrusting your payroll to our company.
PLEASE NOTE: HRTorQue will be closing on Friday 21st December 2018 and will re-open on Monday 7th January 2018.
During this time we will have a skeleton staff on duty to assist clients who will not be closing over this period and will require scheduled payroll services.
During the shutdown time please keep these numbers on hand.
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. |
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| 6. The COID Dilemma |
| Author: Jonathan Aitken |
Can an unpaid learner practically claim workmen's compensation?
We are often faced with interesting practical challenges. One such challenge surfaced recently (and is likely to become more common as the government pushes for increased employment through learnerships and work experience programmes).
Background
A company offered a work experience programme where they paid for students travel in order for the students to come to their premises and learn more about the trade. In the course of this work experience one of the learners was injured and the company tried to claim compensation from the Compensation Commissioner, but faced some real challenges.
Challenges
The challenge came in three parts:
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Is the learner entitled to claim? Where there is a contract of service the learner should be entitled to claim compensation under the Act. |
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Is the learner able to claim? As the learner is not being paid any salary often companies will not put the learners on to payroll. Where the learner is not on payroll the employer is usually unable to show the Compensation Commissioner that the learner is employed and levies have been paid on their behalf. It is unusual for an employer to think far enough ahead and include unpaid learners (not on payroll) on their annual return of earnings. |
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What can the learner claim? Even if the employer has included the learners on their return of earnings or can show evidence of them being part of their headcount the first question the Compensation Commissioner will ask is to see their payslip and proof of earnings to support the claim calculation. Where they have not been paid anything, the claim is zero. |
This leads to a very inequitable position where the learner should be able to claim, but the claim is worthless.
What to do?
There is no easy answer to this. In a perfect world the legislation would take this into consideration. The only alternatives are civil i.e.
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Protect the company from any claims for compensation by getting learners to sign an indemnity form; and |
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Where the company is interested in looking after learners, consider general insurance products to cover the learner in the event of an incident at work |
We are currently putting such examples to the Payroll Authors Group and other influential stakeholders in an attempt to get some clarity on the law in this regard and more importantly the practical application of the law. Unless there is a process that can be successfully followed to resolve a valid claim this would unfortunately remain a loose end that prejudices those people who need the benefits and cover the most. |
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| 7. Change in Official Rate of Interest |
| Author: Jonathan Aitken |
The Official Interest Rate for calculating Fringe Benefits increased by 0.25 % effective 23 November 2018.
Where an employer gives an employee a loan that is less than the official interest rate or interest free, the difference between the two must be treated a taxable Fringe Benefit.
This Fringe Benefit should be processed via the payroll and reported on the Employees IRP5 against SARS Code 3801.
The Official Interest Rate is defined in the Seventh Schedule as the rate of interest that is equal to the Repo Rate, plus 100 basis points (1%).
The repo rate increased to 6.75% on the 23 November 2018, and the official interest rate therefore became 7.75% effective 23 November 2018.
Please note that HRTorQue Outsourcing have updated all their payroll outsourcing clients effective 1 December 2018. |
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| 8. 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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