by Tony Healy | Jun 23, 2018 | Miscellaneous
Our firm is frequently required to guide clients in the drafting of employment contracts.
As is to be expected, the wording and structure of an employment contract is extremely important. All too often, employers and employees regret not having paid enough attention to the provisions of an employment contract.
Certain basic content is important. For example, the starting date and hours of work; if overtime is compulsory, it must be confirmed in the employment contract.
The employee’s title and responsibilities should be clearly stated.
Employers have a statutory obligation to include all information relevant to the various categories of leave, including annual leave, sick leave, family responsibility and maternity leave.
The inclusion of a clause confirming that the employee is required to complete an initial probationary period is advisable. Probationary periods are recognized in law, and should be of a period long enough for the employer to determine whether the employee is capable of meeting all requirements of the job.
The duration of a probation period can be as long as is reasonable necessary to determine a new recruits suitability, although the standard norm presently is a six-month probation period. The probationary employee’s performance should be regularly assessed, and feedback on performance provided, throughout the probation period.
In addition, probationary employee’s, as is in fact the case with post-probation employees, should be provided reasonable training, guidance, support and counseling in the performance of their duties.
Probationary employees may be dismissed on grounds of poor work performance during, or at the end of the probationary period; a performance hearing is however required to be held prior to any such dismissal.
Probation periods may be extended if the employer is uncertain whether the probationary employee has met all of the job requirements to their satisfaction.
It is important to note that probation is a new employee concept, and does not apply to existing employees who are promoted.
It is also, on occasion, prudent to obligate employees to undergo polygraph tests and searches of their belongings and persons.
The nature of the employer may even require the employer to include a confidentiality agreement regarding ownership of all company documents and information both during, and on termination of, employment.
Provision should be made for the employee to have access to, and be educated on, company policies, rules and procedures. It may well become important at a later date, to prove that the employee had prior knowledge of a company rule if, for example, it is subsequently alleged that the employee is guilty of having breached the rule.
Finally, notice periods must be specified. Many employers simply apply a thirty day, or calendar month, notice period. The Basic Conditions of Employment Act stipulates that a minimum of one-week notice period applies during the first six months of employment, two weeks in the second month of employment, and four weeks thereafter.
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by Tony Healy | Jun 23, 2018 | Law of Evidence
Hearsay evidence is, in the main, inadmissible, and is best described as evidence tendered by an individual who relays evidence which s/he did not personally witness with his/her own eyes or senses, but heard from someone else.
It is with good reason that hearsay evidence is treated in this way, as hearsay evidence cannot be tested by way of cross examination, and is furthermore typically unreliable as the witness tendering the hearsay evidence may have mistakenly made an error in the interpretation of that communicated to him or her by the source of the evidence.
Hence the need to handle hearsay evidence with extreme caution.
However, that’s not to say that there are not exceptions to this rule; on the contrary, there are.
Section 3 of the Evidence Amendment Act provides that hearsay evidence may in fact be admissible if it is in the interest of justice to do so and certain conditions are met. The Labour Court addressed this tricky area of law in the matter of Goitsimang David Mosima v SAPS & 3 others (Case Number J1031/09).
The applicant, at a prior CCMA arbitration hearing, had been found guilty of soliciting and receiving a R700.00 bribe from two members of the public who happened also to be illegal immigrants, with the outcome being that his dismissal was upheld by the arbitrator. He now sought to have this decision reviewed on grounds that the arbitrator had erred in accepting the hearsay evidence, primarily on the basis that the two members of the public did not testify at the arbitration hearing.
The Commissioner relied heavily on the provisions of the Evidence Amendment Act relating to the exceptions to the hearsay rule, and especially noted that the applicant’s review application required the court to consider the reasonableness of the arbitrator’s decision, and not the correctness of that decision, as would be the case in appeal proceedings.
It was held that “in the first instance the criticism that the arbitrator erred in basing his decision on hearsay evidence bears no merit”.
The provisions of Section 3 of the Evidence Amendment Act were deemed to have justified as the two members of the public whose evidence was admitted in their absence, was justified as they could not be found to testify at the arbitration hearing because they probably had been deported back to their countries of origin.
The applicant’s own version had also in fact corroborated the heresy evidence in that he had acknowledged receiving R700.00, in an envelope, from the two members of the public in question.
The admission of hearsay evidence should none the less be handled with caution, given that in doing so, unreliable evidence could be admitted that does not withstand scrutiny at the CCMA, Bargaining Councils or the Labour Courts.
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by Tony Healy | Jun 23, 2018 | Employment Equity
One of the most eye-catching amendments to recent amendments to labour legislation was the enactment of section 6(4) of the Employment Equity Act, which provides for equal pay for equal value.
The Draft Code of Good Practice on Equal Pay for Equal Value states that “Section 6(4) of the Act, which came into effect on 1 August 2014, provides that a difference in terms and conditions of employment between employees of the same employer, performing the same or substantially the same work or work of equal value, that is directly or indirectly based on any one or more of the grounds listed in sub-section(1) or on any other arbitrary ground, is unfair discrimination”.
The recent Labour Court case of Pioneer Foods (Pty) Ltd v Workers Against Regression & 2 others [C687/15] dealt with the question of whether, or not, employers were entitled, or indeed permitted in law, toremunerate drivers differently based upon their length of service. Perhaps more particularly, this case addressed the question of whether length of service was prohibited, arbitrary, unfair discrimination in the context of equal pay for work of equal value.
The Court was clear in finding that “Nothing in the EEA precludes an employer from adopting and applying a rule in terms of which newly appointed employees start at a rate lower than existing long-serving employees. This applies whether or not the newly appointed employee had previous substantial experience, whether with the employer concerned or some other employer”.
Interestingly, the judgment continues that “It also applies whether or not the employee had, in the past, rendered services to the employer concerned via a labour broker”.
In this vein, the judgment referred to the Constitutional Court, which has held previously that “it is impossible to regulate a modern country without differentiation and without classifications which treat people differently and which impact on people differently”.
So, the Labour Court has confirmed that equal pay for equal work of value legislation does not preclude employers from discriminating, fairly between employees of various lengths of service, by remunerating longer serving employees at a higher rate than their peers with shorter service.
Even greater emphasis was placed on this by the Labour Court in this judgment when the judgment continued that “Differentiation in respect of terms and conditions of employment on the basis of length of service with the employer concerned is … a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common … there is quite manifestly a rational connection between using length of service and loyalty of existing employees”.
Interestingly, in conclusion, the judgment noted that “Equal pay for work of equal value is a different concept from equal pay for the same work”.
Besides, the Code of Good Practice on Equal Pay for Equal Value itself “recognises length of service as a factor justifying differentiation in pay”.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Employers frequently complete disciplinary hearing charge sheets poorly without, for example, properly outlining the specific components of the allegations being levelled against an employee. Predictably, the entire disciplinary hearing process becomes contaminated should allegations of misconduct against an employee not be properly clarified in writing. There are a number of reasons for this.
To begin with, employers often accuse employee’s of acts of misconduct which, in fact, cannot be proved. An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required.
Secondly, terminology is used which is, on occasion, used inappropriately. For example, acts of misconduct are described as being of a gross nature when in fact the employer does not appreciate what distinguishes so-called gross misconduct from ordinary misconduct. In this regard it is not uncommon for an employer to compile an allegation of gross insubordination when in fact the employer cannot distinguish between ‘gross’ and ordinary insubordination.
The amount of information contained in a misconduct “charge sheet” is normally referred to as the “particularisation”. This frequently leads to disputes which focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations against him’/her so that they are in a position to properly prepare a defence.
If an employee is of the view that the employer has in fact not furnished them with enough information in the charge sheet to prepare a defence, such employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
The CCMA and Labour Court have been required to address numerous disputes relating to alleged insufficient particularisation of misconduct charge sheets in recent years, as indeed was the erstwhile Industrial Court prior thereto.
In short, Schedule 8 of the LRA informs parties that charges should be levelled “in a form and language that employees can reasonably understand”. Case law supplements this by providing that allegations must inform the alleged offender of what s/he is alleged to have done (or not done as the case may be) and the period over which he is alleged to have committed the offences.
In the CCMA arbitration case of SACCAWU obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (Case Number: MP2112-02) the commissioner held that “The charges should be specified with sufficient particularity to enable the employee to answer them. This does not mean, however, that the charges have to be drawn up with the precision of an indictment in a criminal trial. It is enough that the employee be able to prepare his or her defence. (See Police & Prisons Civil Rights Union v Minister of correctional Services & others (1999) 20 ILJ 2416 (LC))”.
In short, the employee should not be expected to have to speculate what the precise allegations are being levelled against them.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Punctuality is a basic fundamental employment obligation. It’s taken as a given that when an employee enters into an employment contract with an employer, the employee is able to attend work on time. Two of the most basic of common law employment obligations which accrue to employees are come to work on time, and come to work often!
That’s not to say of course that unavoidable circumstances are unimportant. On the contrary, if an employee can prove that they were prevented from arriving at work on time for reasons beyond their control, the employer cannot treat such late-coming as being an act of misconduct.
Ordinarily, late-coming is a minor offence which should be responded to by employers with gradual, progressive discipline. Of course, if an employee arrives for work substantially late, it may well warrant dismissal even though it may be the first instance of late-coming, especially if the employee has short service and shows no remorse.
Our Courts have endorsed dismissal for a pattern on late-coming. In CEPPWAWU obo Motshene v Sandoz SA [Arbitration Case No. CHEM305-09/10] it was held that “ … the employee must not only come to work – he/she must come to work on time, and be at the workstation during the agreed hours – even if the employer has no work for him to do.”.
The Commissioner continued that “ .. when an employee fails to correct his conduct .. where his late-coming continued, it undermines the employer’s trust in him/her”. The employer cannot run a business when he cannot rely on the Applicant to be at work on time. This would in turn, break down the employment relationship. It is therefore unreasonable, under the circumstances, to expect the employer to carry on in such an employment relationship.”
Poor time-keeping would typically justify a verbal warning for a first offence, written warning for a second offence, final written warning for a third offence, and dismissal thereafter.
Employee justifications for late-coming must be assessed whether, or not, the employee can be deemed to have been at fault for the late-coming. Punctuality cases are, to some extent, easier to deal with that many other cases of alleged misconduct in that the employer’s evidentiary burden is minimal as the late-coming is easily identifiable.
Whilst employee’s may be faced with lengthy commutes to work, and increasingly frustrating traffic congestion, this does not ordinarily justify late-coming, unless of course a single unforeseen traffic accident for example hinders an employee’s ability on a given day to arrive at work on time.
More often than not, progressive discipline is headed by employees and punctuality materialises before the need to dismiss.
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