Fair and effective discipline – from warnings to chairing watertight dismissals
- General principles of discipline
- Conducting a fair disciplinary enquiry and examining employer/employee rights
- The effect of criminal proceedings on disciplinary action
- Practical: The code of good practice on misconduct including incapacity, Schedule 8 of the Labour Relations Act.
The workshop will cover
Section One – Fair and effective discipline
- Introduction to effective discipline
- Management and the need to discipline
- Management and the need to maintain discipline (Worksheet A)
- Management and the need to maintain discipline (Worksheet B)
- Effect of these developments in the early 1980s on the manager’s right to discipline
- What effect does the LRA (1995) have on discipline and dismissals?
- Unfair dismissals
- Unfair dismissal, Automatically unfair dismissal and fair dismissal (Worksheet C)
- Employee duties to a company (Worksheet D)
- Automatically unfair dismissals
- Employee duties to a company
- Discipline guidelines
- Issuing of warnings (Worksheet E)
Section Two – Conducting a fair disciplinary enquiry
- How to conduct a fair disciplinary enquiry
- Fairness: General principles
- Overview: procedural and substantive fairness
- The disciplinary enquiry: preliminary investigation to collect evidence
- The disciplinary enquiry
- The disciplinary enquiry: notification
- The disciplinary enquiry: formulating the charge
- The disciplinary enquiry: employee rights
- Checklist for the chairperson of a disciplinary enquiry (example)
- How to conduct a disciplinary enquiry (example)
- The key roles and characteristics of participants at a disciplinary enquiry (Worksheet F)
- Roles and characteristics of participants at a disciplinary enquiry
- The disciplinary enquiry: closing statements
- The finding: verdict and penalty (Worksheet G)
- Testing fairness: group discussion (Worksheet H)
- The finding: verdict
- The finding: mitigation
- The finding: penalty
- Testing fairness
- Appeal procedure
- Fair enquiry guidelines
- Summary: fair enquiry guidelines
Section Three – effect of criminal proceedings on disciplinary action
- Criminal proceedings and disciplinary enquiries
- Disciplinary enquiry: notification
- Acquittals: effect on dismissal
- Acquittals: effect on dismissal – case study (Worksheet I)
- Criminal actions: management guidelines
- Exceptions: inability to hold a disciplinary enquiry
- Criminal acquittals: management response
Section Four – The Code of Good Practice: Dismissals
- Introduction
- Fair reasons for dismissal
- Procedures
- Suggested procedure for holding a disciplinary investigation [Item 4(1) of the code]
- Dismissals and industrial action
- Poor work performance
- Ill health or injury
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
About IR and LS
SEIFSA Industrial Relations & Legal Services
SEIFSA’s IR and Legal Services division has highly-skilled and experienced staff that are acknowledged industry experts. They have a specialised knowledge of collective bargaining, Bargaining Council agreements, dispute resolution, labour law and environmental and commercial law issues.
The IR and Legal team assists with:
- Company-level IR policies, procedures and practices
- General industrial relations and legal issues
- Bargaining council agreements and exemption applications
- Company-level disciplinary enquiries and appeal hearings
- Dispute resolution
- Legal Representation in the MEIBC, CCMA and Labour Courts
- Conciliation and arbitration proceedings
- Employee job grading
- Retrenchments and short-time
Provides advice and training on issues pertaining to:
- Collective Agreements
- Basic Conditions of Employment Act (BCEA)
- Employment Equity Act (EEA)
- Labour Relations Act (LRA)
- Employment Services Act (ESA)
SEIFSA’s experts are ready to advise, assist and represent management in all dealings with trade unions at company level, for example on:
- Proposed employee retrenchments
- Industrial disputes and strikes
- Union demands for recognition and access
We negotiate company-level union recognition and procedural agreements and give written comments and advice on all company-level policies and documents – for example, on labour broking, employment contracts and disciplinary warning letters.
The assistance includes, but is not limited to drawing up IR documents, including documents relating to grievance and disciplinary procedures, working time arrangements, email and internet policies and dealing with absenteeism in the workplace. They also advise on the legitimacy of medical certificates.
Bargaining Council Matters
SEIFSA’s experts help to interpret and implement bargaining council collective agreements relating to:
- Working conditions
- Short-time
- Retrenchments
- Use of labour brokers
- Pension and Provident Funds
- Disability issues
We prepare exemption applications for companies from bargaining council agreements on:
- Wage Increases
- Leave Enhancement Pay
Job Grading
SEIFSA’s grading specialists visit member companies and grade employees’ jobs in accordance with bargaining council’s job grading structures.
Disciplinary enquiries
SEIFSA provides qualified and experienced experts to chair and run in-company disciplinary enquiries and appeals.
Legal Representative
SEIFSA provides Legal representation in the MEIBC, CCMA and Labour Courts
SEIFSA speaks for industry
Our senior IR staff is active in the formulation of employer bargaining strategies and tactics. We also participate directly in industry-wide negotiations with trade union representatives. SEIFSA negotiates all terms and conditions of the industry’s collective agreements – from wage increases, employment conditions and social security arrangements through to financial and administrative issues relating to bargaining council operations.
Corporate and Commercial Law Training and Advisory Services Including, but not limited to:
- Advice and drafting of commercial contracts such as leases and agreements of purchase and sale, production, distribution, leases, sub-contracting etc
- Advice in contractual disputes
- Advice and guidance on corporate governance principles
- Advice and guidance on business law principles
- Advice and guidance on business rescue proceedings
- Advice and guidance n Compromises
- Advice and guidance on fundamental transactions and takeovers
The Industrial Relations and Legal services division now also offers retainer packages on all of the above issues.
Industrial Relations Workshops, also offered on an in-house basis
- A – Z of the Metals and Engineering Industry Main Agreement workshop
- Managing sick leave and absenteeism
- Fair and effective discipline
- Employment contracts and the Law
- Understanding how to grade your scheduled employees
- Retrenchments, Lay- offs and short-time
- Effective Industrial Relations
- Managing conflict and common problem areas effectively
- Retrenchments, short-time and lay-offs
Legal services Workshops; also offered on an in-house basis
- Chairing of disciplinary hearings: Doing it the right way
- POPI Act
- Managing incapacity and poor performance
- Law of evidence
- Business contracts and SLAs
- Labour Law court processes
- How To Tender Successfully, Untainted By Corruption – Beginner’s course
- Key Aspects of Labour Law
NUMSA AND THE CALL FOR A NATIONAL SHUTDOWN ON 1 AUGUST 2018
Introduction
As you may be aware from media reports, the National Union of Metalworkers of South Africa (NUMSA) says it supports the call of a national shutdown which is expected to take place on 1 August 2018.
The march is expected to start in the City of Tshwane and proceed to the Union Buildings. The march is intended to raise awareness about violence and oppression against women and against capitalism.
Protest Action and the Labour Relations Act
The Labour Relations Act (LRA) permits registered trade unions such as NUMSA and the NUM to undertake protected protest action to promote the social and economic interests of workers, provided that they observe the procedural requirements contained in Section 77 of the LRA.
It is important to note that, on this occasion, no such application has been submitted to NEDLAC. Consequently, employees participating in any action on 1 August 2018 will not be protected by the normal rules regarding protected strikes. That means no work, no pay and no disciplinary action.
SEIFSA recommends that Management adopts the following course of action in dealing with any absence from work on 1 August 2018:
- no work and no pay, with the option of taking appropriate disciplinary action being implemented at Management’s discretion;
- a shift for Leave Pay and Leave Enhancement Pay qualification purposes will be lost in respect of the day’s absence; and
- any overtime worked during the course of the week will be paid at ordinary rates to make up for the loss of any ordinary working hours on 1 August 2018.
The Staff of the SEIFSA Industrial Relations and Legal Services Division are available on (011) 298-9400 to provide any further advice and/ or assistance to Management on the contents of this Management Brief.
NUM AND NUMSA LUNCH-TIME PICKETS AT ESKOM ON 14 JUNE 2018
Introduction
As you may be aware from recent media reports, the National Union of Mineworkers (NUM) and the National Union of Metalworkers of South Africa (NUMSA) are preparing for a national day of action in the form of lunch-time pickets at various Eskom sites in protest against Eskom’s 0% wage increase offer.
Protest Action and the Labour Relations Act
The Labour Relations Act (LRA) permits registered trade unions such as NUMSA and the NUM to undertake protected protest action to promote the social and economic interests of workers, provided that they observe the procedural requirements contained in Section 77 of the LRA.
It is important to note that, on this occasion, no such application has been submitted to NEDLAC. Consequently, employees participating in any action today will not be protected by the normal rules regarding protected strikes, namely no work, no pay and no disciplinary action.
SEIFSA recommends that Management adopts the following course of action in dealing with any absence from work today:
- a shift for Leave Pay and Leave Enhancement Pay qualification purposes will be lost in respect of the day’s absence; and
- any overtime worked during the course of the week will be paid at ordinary rates to make up for the loss of any ordinary working hours today.
The Staff of the SEIFSA Industrial Relations and Legal Services Division are available on (011) 298-9400 to provide any further advice and/ or assistance to Management on the contents of this Management Brief.