SEIFSA Legal Services Protecting Companies from the repercussions of unfair dismissals
SEIFSA Legal Services Protecting Companies from the repercussions of unfair dismissals.
One of the most important changes introduced by the Labour Relation Act 66 of 1995 relates to procedural fairness in dismissal. The unfair dismissal provision of the Act (Chapter VIII) and the code of Good Practice on Dismissal found in Schedule 8 to the Act (the Code) has attempted to provide greater clarity on unfair dismissals and has provided employers with a clear set of guidelines on procedural fairness.
The aim of this blog is to highlight the pre-dismissal procedure in the Code and showcase how SEIFSA assists employers to comply with these pre-dismissal disciplinary procedures when conducting disciplinary enquiries.
Labour Relations Act 66 of 1995: Unfair Dismissal
Section 185 in chapter VIII of the Act states that “every employee has the right not to be unfairly dismissed.”
The right not to be unfairly dismissed is supported by section 23(1) of the Constitution of South Africa. A dismissal will be unfair (section 188 of the Act) if the employer cannot prove that the reason for the dismissal was a fair reason and “that the dismissal was effected in accordance with fair procedure.”
Certain dismissals (section 187) are deemed by the Act to be automatically unfair, and should an employer dismiss an employee for any one of these reasons, the employee will not have to prove that the dismissal was unfair and the employer will not be provided the opportunity to prove that the dismissal was, in fact, fair. These would include an employee participating in a protected strike, reasons related to pregnancy and unfair discrimination.
Although Chapter VIII requires a dismissal to be effected in accordance with a fair procedure, it does not provide any definition of what constitutes a fair procedure and ultimately this is left to the guidance in the Code.
The Code of Good Practice: Dismissal
In an intentionally general manner, the Code of Good Practice on Dismissals provides a set of guidelines that requires employers to “take it [the Code] into account” (section 188[2] of the Act) rather than prescriptively to apply it. This has created the mistaken impression that there is no duty to follow these guidelines. Management must exercise caution before departing from the norms set out in the Code and be prepared to justify fully any deviation.
Section 188 (2) of the Act clearly states that “any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of practice issued in terms of this Act.” This means that an arbitrator will be required to determine the procedural fairness of a dismissal against the norms provided by the Code.
In any dispute arising from an alleged unfair dismissal, the onus will always rest with management to prove the fairness of any procedure that has been followed.
Pre-dismissal disciplinary procedure
The Code of Good Practice on Dismissal (paragraph 4[1]) requires that under normal circumstances an investigation should be conducted to determine whether there are grounds for dismissal, and that this “does not need to be a formal enquiry.” What the Code envisages is an investigatory fact-finding – rather than an adjudicatory – process.
The purpose of this process is two-fold. Firstly, it aims to ensure that employers make their decisions with the best possible information at hand. Secondly, it gives affected parties the opportunity to participate in the process, thus legitimising the outcome. Unlike an adjudicative process, it does not guarantee a correct decision, but what it does do is ensure a fair decision, one made upon an objective consideration of all the information at management’s disposal.
Conducting a disciplinary investigation
According to paragraph 4(1) of the Code, management is required to conduct an investigation to determine whether or not there are grounds for disciplinary action.
This preliminary investigation is not the disciplinary enquiry. The investigative stage of the disciplinary process is an opportunity for management to determine what misconduct, if any, has been committed. If the investigation reveals a breach of rules, the next step is to compile a list of objective facts and evidence that will be presented at the enquiry.
It is recommended that management conduct a PRE-DISMISSAL INVESTIGATION along the following lines:
- Determine if there are any witnesses to the alleged misconduct;
- Question each witness separately to obtain as much information as possible;
- Request witnesses to make signed written statements;
- Differentiate between factual evidence and evidence based on opinion or hearsay;
- Decide whether sufficient factual evidence has been collected to proceed with a disciplinary enquiry; and
NOTE: This is not tantamount to finding the employee guilty. It simply enables management to make a decision on whether to convene a disciplinary enquiry or not.
- Decide whether or not to proceed with a disciplinary enquiry.
This is a technical procedure, and that is why SEIFSA has two Admitted Attorneys to guide companies through this difficult process.
Management is required to notify the employee of the allegation using a form and language that the employee can reasonably understand. Employees are entitled to sufficient particulars to enable them to answer the case against them. Fairness requires that an employee be informed of the facts supporting the allegation, the alleged offence with which they are being charged and, importantly, the sanction that might be imposed.
Employment Contracts and the Law
Employers need to ensure that contracts of employment provide the maximum benefit to the company and ensure the flexibility that every successful company needs.
The workshop will cover
The potential pitfalls and benefits of using alternative and flexible employment arrangements, including avoiding claims of unfair employment practices and unfair dismissals. Focus will be given to permanent employment contracts, limited duration or fixed term contracts, the use of labour brokers and independent contractors and casual employment. The course will cover the impact that labour legislation such as the Main Agreement, Basic Conditions of Employment Act and the Labour Relations Act has on these contractual arrangements. Mention will be made of other beneficial flexible working arrangements contained in the Main Agreement.
Handling Conflict and Common Problems at the Workplace
On completion of this workshop, you will:
- Tips on managing conflict and eliminating grievances
- Understand the key concepts and principles of fair grievance handling
- Know the key element and procedures for conducting a fair grievance enquiry
- Discuss the role of the various participants at the grievance enquiry
About the workshop
SEIFSA has developed a half-day workshop focussing on empowering your supervisors and first line managers to deal with conflict and misconduct effectively on the shopfloor.
The workshop will cover
- Understanding the employment relationship
- The basic employment obligations to be expected from employees and shop stewards
- Dealing with conflict and misconduct, including:
o Poor timekeeping
o Absenteeism
o Desertion
o Sick leave or abuse
o Intoxication
o Theft and dishonesty
o Refusal/failure to work and insubordination
o Poor performance
o Incapacity
o Harassment
o The burden of proof
o Corrective action and the issuing of warnings
o Dealing with grievances
The presenter
Michael Lavender holds a Bachelor of Social Sciences degree, majoring in Industrial Psychology and Economics from the University of KwaZulu-Natal, a Personnel Management Trainee Programme from Rand Mines,a Certificate Programme in Industrial Relations (CPIR) from the University of the Witwatersrand’s Graduate School of Public and Development Management (Wits Business School), and an Expert Negotiator Certificate issued by the Gordon Institute of Business Science (GIBS). Since joining SEIFSA is 1991, he has gained extensive knowledge and experience and daily duties include but are not limited to, advising and training companies on the Main Agreement and labour law, and chairing hearings in the areas of disciplinary, incapacity, grievance. Representing various companies in retrenchment consultations and other industrial relations matters such as disputes and industrial action, as well as at the CCMA and the MEIBC Bargaining Council at conciliation and arbitration.
Who should attend?
- Supervisors
- Foreman
- First line Managers
- Anyone who needs to know the basic principles of dealing with shopfloor misconduct
Key Aspects of Labour Relations Act
Amendments to the Labour Relations Act 66 of 1995 came into effect on 1 January 2015 and companies were offered a three (3) months grace period of complying with the legislation. Further amendments to the Basic Conditions of Employment Act 75 of 1997 came into effect in or around September 2014.
Employers who are not apprised with the legislations and as a result find themselves in breach of the legislations suffer great consequences of penalties or worse negative decisions on referrals to respective forums. The LRA and the BCEA is the core of an employment relationship and employers are required to identify with all its aspects as it regulates the relationship between the employer and the employee.
Law of Evidence
Often failure to lead and/or produce evidence in the required manner at the correct forum compromises cases.
Evidence is a key aspect to the presentation of any case at any forum and the relevance of witnesses to corroborate different forms of evidence should be identified. Evidence produced before the adjudicator is the determination of which party is successful to a matter.
The initiator/respondent to the different processes should be able to identify different forms of evidence and present relevant forms of evidence upon requirement.
The workshop will cover
- Understanding the different forms of evidence;
- Presentation of different forms of evidence when required;
- Understanding when a witness would be required to corroborate different forms of evidence;
- Understanding the admissibility of evidence;
- Understanding the weighing of evidence at proceedings.
Managing Absenteeism and Sick Leave at the Workplace
The workshop will look at the main absenteeism issues affecting the health of your company, namely:
- How to manage sick leave utilisation / abuse
- Do you need to recognise traditional healers?
- What constitutes a valid sick note and when can I insist upon one?
- What disciplinary action can be taken to deal with unauthorised absence?
- What constitutes authorised versus unauthorised absence?
- How does unauthorised absence affect the leave and leave enhancement pay?
- This workshop will provide you with guidelines to effectively manage these issues on a daily basis.
The workshop will cover
- How to effectively manage sick leave thereby minimising sick leave abuse
- How to identify and manage fraudulent medical certificates
- How to discipline employees who abuse sick leave
- Understand the issues surrounding traditional healers and paid sick leave
Retrenchments, short-time and Lay-offs - Keeping it simple - the Do’s and Don’ts
Difficult times call for difficult measures. This half-day workshop will simplify the processes for implementing short-time, lay-offs and retrenchments / operational requirement terminations, as per Annexure A of the Main Agreement and Section 189 of the LRA. The workshop will identify the common errors that employers make and give delegates the key tools to implement all three processes correctly, simply and efficiently, which will substantially limit successful challenges.
SEIFSA also offers the training on an in-house basis which is a more cost effective option where you have several delegates or more.
The workshop will cover
Short-time
- Applying short-time effectively, fairly and expeditiously.
- The notification: contents, time period, consultation requirement.
- How short can short-time be, how long can you implement short-time for?
- Do you have to have an agreement before you implement short-time?
- Can you have overtime and short-time running con-currently?
- What happens if work suddenly picks up, or decreases further?
- If workers arrive at work and due to circumstances beyond your control cannot work, what can you do?
- What happens if public holidays or sick leave is claimed during a period of short-time?
Lay-offs
- an alternative to retrenchments,
- The notification: contents, time period, consultation requirement
- How short can lay-off be, how long can you implement a lay-off for?
- Do you have to have an agreement before you implement a lay-off?
- What happens if work suddenly picks up, or decreases further?
- Can some employees be layed off and others still work?
Retrenchment
- Small scale or large scale retrenchments, what’s the difference?
- The notification and the consultation process – the do’s and don’ts.
- The selection criteria – who is selected for retrenchment – keeping it fair and objective.
- The bumping principle.
- Alternatives to forced retrenchments.
- Severance pay – what must be paid out.
Can you use Labour Brokers and Limited Duration Contracts during short-time, lay-offs and retrenchments.
The Training Lay-off scheme
The retrenchment assistance programme
The BCEA vs The Main Agreement for the Metal & Engineering Industries
Ever get confused about the relationship and the differences between the BCEA and the Main Agreement.
If so attend this workshop and get to understand their relationship, who they apply to, what their differences are and if the Main Agreement has to comply with the BCEA.
The presenter
The workshop will be led by SEIFSAs IR practitioners, who are acknowledged as experts in all facets of industrial relations, including industry negotiations, dismissals, employment contracts and dispute resolution.
The workshop will cover
- What are the main roles of the BCEA and the Main Agreement?
- Which companies and employees are covered by the BCEA and the Main Agreement?
- Conditions of employment of the BCEA and the Main Agreement: Which are the same? Which are different?
- Hours of Work, Shifts, Overtime and Public Holiday Rates?
- Annual Leave, the Annual Shut-down, a 13th Cheque?
- Wages, Pay Slips, Pay Day and Employment Contracts?
- Maternity and Paternity Leave?
- Sick Leave and family Responsibility Leave?
- Retrenchments, Lay-off and Short-time?
- Termination Notice?
The presenter
SEIFSAs Industrial Relations Department senior personnel are acknowledged as experts in all facets of industrial relations, including industry negotiations, dismissals, employment contracts and dispute resolution.
The Role and Function of Shop Stewards at the Workplace – Building Healthy Workplace Relationships
Supervisor’s and shop steward’s need to know and understand the roles and responsibilities of each other, in the context of the unique character of the South African labour environment, including the trade union organisational rights spelt out in the Labour Relations Act.
Once the parties achieve this understanding of each other’s roles and functions, this allows for an environment that will help foster better relationships and enable parties to move to a less confrontational way to achieve desired goals and hopefully achieve an environment of co-operation.
Supervisors and shop steward’s industrial relations and work functions will be covered, as well as guidelines on how to move from confrontation to co-operation. Lastly and importantly the objectives and obligations of the employment relationship and employment contract will be discussed.
Labour/union/employee Representative Training
This brand new one-day workshop introduces the nominated Labour Representative Skills Development Facilitator (SDF) to the skills development landscape – in order to understand the individual and group roles and responsibilities.
This practical workshop covers all the Department of Higher Education and Training legislative and Merseta requirements that the Labour Representative SDF must know and understand in order to participate effectively. Key outcomes include understanding the role of the training committee as well as managing effective consultation on all skills development related matters.
Attendance is essential for the appointed Labour Representative Skills Development Facilitator (SDF) nominated through the Training Committee. The workshop will also be valuable to any employee representatives nominated to serve on their company’s training committee particularly in the changing skills development environment.
The workshop will cover
- The skills development legislation
- The Merseta
- The Skills Development Facilitator
- The Labour Representative Skills Development Facilitator (SDF)
- The levy grant amendments
- The skills planning process
- The training committee
- A guide to consultation
- Introduction to the Seta Management System (SMS)