[vc_row][vc_column][vc_column_text]

What is the difference between managing conduct and capacity at the workplace?

 

The main distinction between managing misconduct and capacity at the workplace is that while both entail a breach on the part of the employee with regard to the fulfilling of their employment obligations, misconduct involves an element of culpability or blameworthiness where the employee intentionally or negligently broke a workplace rule. With incapacity, culpability and blameworthiness are not alleged, but there is a lack of ability on the part of the employee.

 

The Schedule 8 to the Labour Relations Act 66 of 1995, the Code of Good Practice: Dismissal (the Code), deals with two broad types of incapacity – poor work performance and illness or ill health. Incapacity, implies that the employee’s poor work performance is due to conduct which is neither intentional nor negligent. Incompatibility is a third category of incapacity that is not referred to in the Code.

 

In some instances, employers may feel that an employee failed to reach the expected performance standard precisely due to some sort of intentional or negligent behaviour on his or her part.  This is where misconduct and incapacity may become a bit blurred and it is important for employers to be very clear on the perceived cause of the problem at hand so as to follow the correct path towards managing the problem.

 

Incapacity

 

A good example of incapacity (poor performance) is a salesperson that may have a perfectly clean disciplinary record: s/he is always on time and does his/her work diligently. Despite their best efforts, the salesperson just does not reach his/her monthly sales targets due to their target sales audience having cut its spending patterns because of the depressed state of the economy. Quite simply, the employee may be a poor salesperson, but they may be an excellent administrator.

 

The lack of fault on the part of the employee is perhaps the main reason why employees are not disciplined for poor work performance – an employee cannot be disciplined for something he or she cannot be blamed for. However, that inability to perform remains a ground upon which the employment relationship may be terminated as the employee is unable to do the job.

 

Incapacity due to poor performance requires a corrective, performance managed approach (a poor performance procedure) prior to dismissal. Prior to dismissing an employee for ill health or injury, a separate procedure must be followed to determine the extent of the ill health or injury and the extent to which the employer is able accommodate the employee.

 

Misconduct

 

An example of misconduct is when the salesperson fails to meet the sales targets due to persistent late coming and non-attendance at work without a valid reason.

 

The essence of misconduct lies in the fact that the employee breached a rule or standard governing conduct in the workplace (or conduct relevant to the workplace). The employee is held to blame for his/her wrongful conduct and may be disciplined by the employer.

 

Misconduct includes deliberate or negligent conduct. Negligence, in the context of the workplace, means that the employee failed to do what a reasonable employee in his or her position should have done. The employee’s acts (or, more usually, omissions) are measured against an objective standard – to see if the employee’s conduct differs from the standard expected from another employee in the same position.

 

How does an employer distinguish between the misconduct and incapacity?

 

According to the Labour Court, the distinction between poor performance and misconduct (in the form of negligence) can be determined by asking two simple questions:

 

• Did the employee try, but could not?
• Could the employee do the work, but did not?

 

If the answer to the first question is ‘yes’ then one is probably dealing with a case of incapacity or poor performance, because an employee that honestly seeks to achieve what is expected of him/her, but is unable to do so is incapacitated and is not behaving wilfully or indifferently.

 

If the answer to the second question is ‘yes’, then it is probably a case of misconduct, as this would be a situation where the employee is fully able to do what is required, but failed to do so. Such failure could therefore only be because of indifference or wilfulness or failure to care (negligence).Note however that it is always important to gain a proper understanding of why the employee failed to do what was required of him/her.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text] [/vc_column_text][/vc_column][/vc_row]

What is the difference between managing conduct and capacity at the workplace?

[vc_row][vc_column][vc_column_text]

Sources of law that govern the employment relationship

 

There are a variety of sources of law in South Africa that impact on the world of work.

The legal principles applicable to the employment relationship in this country come from a variety of sources. These include, the common law, international, law labour legislation, workplace level collective agreements, bargaining council collective agreements and the contract of employment. All of these are subject to the principles contained in the Constitution.

 

If one has to create a hierarchy of the sources (an order of the most important) referred to above, it would be as follows:

1. Constitution;
2. Labour legislation, including determinations made by the Minister of Employment and Labour;
3. Collective agreements concluded in bargaining councils;
4. Collective agreements concluded outside of bargaining councils;
5. Contract of employment; and
6. The Common Law.

 

The Constitution

 

• The Constitution of South Africa is the supreme law in this country.
• It provides the framework against which all other law (legislation and the common law) must be measured.
• All laws must be in line with the requirements of the Constitution or run the risk of being cancelled for being seen to be unconstitutional.
• All laws must also be interpreted and applied in a way that is in the line with the Constitution. For example, if there are two possible interpretations of the law, one giving effect to constitutional rights and one not, the interpretation giving effect to the Constitution must be adopted.

 

Conventions of the International Labour Organisation (ILO)

 

• South Africa is a member of the ILO.
• The main instruments of the ILO are Conventions, which reflect the agreements reached by consensus among the member states of the ILO.
• The Conventions of the ILO have a role to play in determining the content of the labour rights in the Bill of Rights and the proper interpretation of our labour legislation.
• South Africa has ratified several ILO conventions and by doing so, it undertakes binding legal obligations relating to a wide variety of matters.
• Labour legislation enacted since 1995 for example, the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1995 (EEA) reflect ratification or adoption of core ILO Conventions.

 

Labour Legislation

 

• The main source of labour law is legislation or statutes.
• These are Acts of Parliament which regulate specific matters of labour law.
• Laws generally contain broad provisions setting out rights and duties, establishing processes and procedures and imposing obligations on parties.
• Obvious examples would be the Labour Relations Act (LRA) or Basic Conditions of employment Act (BCEA).

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]

Regulations

 

• Broader provisions contained in legislation are often regulated in more detail by means of regulations.
• The regulations focus how to practically implement aspects of legislation. For example, in 2006 the Minister of Labour issued General Administrative Regulations in terms of the Employment Equity Act (EEA), which set out in detail how employment equity plans must be drawn up. Regulations are a form of subordinate legislation, but are binding in the same way as statutes.

 

Codes of Good Practice

 

• Certain pieces of legislation (the LRA, BCEA and EEA) make provision for the issuing of Codes of Good Practice.
• Codes of Good Practice are guidelines and any person interpreting or applying legislation must take the relevant code into account.
• Codes of Good Practice provide employers with information that may assist them with implementing various pieces of legislation.
• Codes of Good Practice are prepared and issues by NEDLAC in terms of the law.
• Employers should be guided by a particular Code of Good Practice unless they have a good reason to depart from it.

 

Some of the more well-known Codes of Good Practice are:

• Code of Good Practice: Dismissal;
• Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace;
• Code of Good Practice on the Employment of People with Disabilities.

 

Sectoral Determinations

 

• Chapter 8 of the BCEA allows the Minister of Labour to issue sectoral and ministerial determinations which set basic conditions of employment for employees working in a particular sector.
• For example, determinations have been issued for domestic workers and the cleaning services sector. Where the issues dealt with in a sectoral determination are also dealt with by the BCEA, the determination shall be accepted.

 

The Minister has made sectoral determinations for the following sectors:

The Contract Cleaning Sector	(Sectoral Determination 1)
Learnerships	(Sectoral Determination 5)
The Domestic Workers Sector	(Sectoral Determination 7)
The Wholesale and Retail Sector	(Sectoral Determination 9)
Children in the Performance of Advertising Artistic and Cultural Activities	(Sectoral Determination 10)
The Taxi Sector	(Sectoral Determination 11)
The Farm Workers Sector	(Sectoral Determination 13)
The Forestry Sector	(Sectoral Determination 12)
The Hospitality Sector	(Sectoral Determination 14)

 

It is important that all employers familiarise themselves with the contents of sectoral and ministerial determinations and keep abreast with the changes to the minimum rates of pay.

Collective agreements

 

• Collective agreements are written agreements between trade unions and employers or employers’ organisations, concerning terms and conditions of employment or any other matter of mutual interest.
• Collective agreements are a form of ‘collective contract’.
• A collective agreement can amend, replace or change some basic conditions of employment to the extent it is allowed by the BCEA.
• That agreement is then the instrument that regulates the minimum conditions of employment for the employees covered by it.

 

Collective agreements concluded in bargaining councils

 

• A bargaining council is a voluntary institution made up of one or more registered employers’ organisations and one or more registered trade unions, which is set up for particular sectors and which regulates terms and conditions of employment or any other matter of mutual interest in that sector.
• Bargaining council collective agreements are also important because they regulate dispute resolution processes (conciliation and arbitration) applicable in the sector and area for which the council has been established.
• With some exceptions, bargaining council agreements can set aside or change even the minimum standards set out in the BCEA.
• If certain requirements are met, an agreement concluded in a bargaining council by employers and trade unions that represent the majority of employees in a sector may be extended to cover employers and employees who are not a party to the council at, provided that they fall within the area of jurisdiction of the council.

 

Collective agreements concluded outside of bargaining councils

 

• Collective agreements concluded between employers and trade unions outside of bargaining councils are also an important source of rules governing the employment relationship between an employer and its employees.
• Such agreements might regulate any matter of mutual interest, terms and conditions of employment and contain disciplinary codes and procedures.

 

Contract of employment

 

• A contract of employment still has an important role to play in our labour law. It creates and regulates the employment relationship.
• A contract comes into existence when an employer and employee intend to create binding obligations and agree on the content of the agreement.
• A contract of employment may be indefinite or for a fixed term.
• An indefinite contract of employment may be oral or in writing, but a fixed-term contract must be in writing and must state the reason for entering into a fixed-term contract.
• An employer and employee are free to agree to the terms of the employment relationship in the contract of employment, but they may not contract out of the minimum conditions of employment set out in the BCEA.

[/vc_column_text][vc_column_text][/vc_column_text][vc_column_text][/vc_column_text][vc_column_text]

The Common Law

 

• The Common Law is a body of law, a set of principles, that has been developed by South African Courts over decades, initially drawing on Roman-Dutch and English law.
• It is unwritten, but its contents became clear as the courts consistently applied the same legal principles to the cases that came before them. For example, most of the South African law of contract is to be found in the common law.
• Even though the common law is unwritten, it remains an important and a binding source of law.
• The common law can be relied on unless it has been overridden or excluded by legislation.

[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

Sources of law that govern the employment relationship

[vc_row][vc_column][vc_column_text]Labour legislation that regulates the employment relationship

The employment relationship is based on the common law contract of employment. The common law covers basic contractual rights.  It does not give an employee rights to sick leave, maternity leave, minimum standards of safety, etc.

 

As a result of the gaps in common law, various pieces of labour legislation have been enacted to address the imbalance.

 

Labour legislation uses a wide range of techniques to achieve its objectives. These include:

• establishing regulatory standards with sanctions in respect of occupational health and safety;
• establishing a floor of minimum rights regulating conditions at work; and
• promoting workplace organisation through registered trade unions and collective bargaining.

 

The Constitution of South Africa

The Constitution is the supreme law of the Republic providing a framework and standards that other laws must follow. All laws that are made by the government must be in line with the provisions of the Constitution and if they are not, they have to be amended.

Labour legislation seeks to give effect to the basic rights in the Constitution, ensuring that everyone has the right to fair labour practices, that employers and trade unions can engage in collective bargaining and that workplaces are free from discrimination.

Each piece of labour legislation has its own focus or theme. Each of these “themes” can be traced back to a basic right contained in Chapter II of the Constitution (the Bill of Rights).

Legislation must be interpreted with reference to the Bill of Rights in the Constitution and international labour standards established by the International Labour Organisation. These are the Conventions which South Africa has approved and which are binding upon it.

Section 23 of the Constitution which is of fundamental importance in shaping labour law in South Africa reads as follows:[/vc_column_text][/vc_column][/vc_row][vc_row css=”.vc_custom_1526860754727{background-color: #dddddd !important;}”][vc_column][vc_column_text]

1. Everyone has the right to fair labour practices.
2. Every worker has the right –
   1. 1. to form and join a trade union;
      2. to participate in the activities and programmes of a trade union; and
      3. to strike.
3. Every employer has the right –
   1. 1. to form and join an employers’ organisation; and
      2. to participate in the activities and programmes of an employers’ organisation.
4. Every trade union and every employers’ organisation has the right –
   1. 1. to determine its own administration, programmes and activities;
      2. to organise;
      3. to bargain collectively; and
      4. to form and join a federation.
5. Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this chapter, the limitation must comply with section 36(1).
6. National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this chapter, the limitation must comply with section 36(1).”

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text][/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]Employers are advised to display summaries of the main pieces of legislation at their workplaces in order for employees and employers to familiarise themselves with the legislation.

The following are some of the main labour statutes.

 

• Labour Relations Act 66 of 1995 (LRA)
• Employment Equity Act 55 of 1998 (EEA)
• Basic Conditions of Employment Act 75 of 1997 (BCEA)
• Mine Health and Safety Act 29 of 1996 (MHSA)
• Occupational Health and Safety Act 85 of 1993 (OHSA)
• Unemployment Insurance Act 63 of 2001 (UIA)
• Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)

 

1. The Labour Relations Act No 66 of 1995 (LRA)

 

The purpose of the LRA is to advance economic development, social justice, labour peace and the democratisation of the workplace by promoting collective bargaining, to provide a framework for unions and employers’ organisations to establish terms and conditions of work at sectoral and enterprise level; to facilitate employee participation in decision-making in the workplace and the effective resolution of labour disputes. The LRA codifies the law of unfair dismissals and unfair labour practices.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]2. The Basic Conditions of Employment Act No 75 of 1997 (BCEA)

 

The purpose of the BCEA is to advance economic development and social justice by giving effect to the constitutional right to fair labour practices, by establishing and enforcing basic or minimum conditions of employment, such as hours of work, leave, sick leave, notice of termination of employment and setting limits to the variation of these minimum conditions (by ministerial determination, collective and individual agreements).[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]3. The Employment Equity Act No 55 of 1998 (EEA)

 

The purpose of the EEA is to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment by the elimination of unfair discrimination and implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels of the workforce.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]4.The Mine Health and Safety Act No 29 of 1996 (MHSA)

 

The purpose of the MHSA is to provide for the protection of the health and safety of employees and other persons at mines. The MHSA requires employers and employees to identify hazards and to eliminate control and minimize health and safety risks. To enhance this function; greater employee participation is encouraged by the creation of health and safety representatives and committees. Health and safety conditions will be monitored, measures enforced, improvements made, risks investigated and training provided, so as to promote the development of a culture of health and safety in the mining industry.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]5. Occupational Health and Safety Act 85 of 1993 (as amended) (OHSA)

 

The OHSA provides for the health and safety of persons at work and in connection with the use of plant and machinery. The OHSA also provides for the protection of other persons (not at work) against hazards arising out of or in connection with the activities of persons at work. The OHSA proposes to achieve its objectives by the establishment of an advisory council for occupational health and safety.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]6. Unemployment Insurance Act 63 of 2001 (UIA)

 

The purpose of the UIA is to establish a system to provide temporary and limited relief for workers who have become unemployed. The UIA establishes an unemployment insurance fund to which employers and employees contribute. From this fund, employees who become unemployed, or their beneficiaries, are entitled to receive short term benefits (for up to six months) and limited to no more than 45% of the contributor’s remuneration.

The UIA creates the following benefits, which a contributor or the dependants of the contributor, are entitled to claim:

• Unemployment benefits;
• Illness benefits;
• Maternity benefits;
• Adoption benefits;
• Dependant benefits.

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]7. Compensation for Injury and Occupational Diseases Act 130 of 1993 (COIDA)

The purpose of COIDA is to provide for compensation for disablement (inability to work) caused by occupational diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases.[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

Labour legislation that regulates the employment relationship

[vc_row][vc_column][vc_column_text el_class=”lower-alpha”]

The Goals of Workplace Discipline

 

The goals of discipline

 

There are four general goals of discipline, namely rehabilitation, deterrence, prevention and punishment.

 

1. Rehabilitative and corrective goals of discipline
   • The main purpose of disciplinary action should be to correct unacceptable behaviour and not punish it. Therefore, rehabilitation and corrective action should be the cornerstone of good discipline.
   • Counselling is an important aspect of discipline, and may be used before penalties are imposed in the case of minor misconduct.
   • Progressive sanctions from verbal to written to final warnings may be used to encourage and direct an employee to change his/her behaviour. Improved behaviour should be encouraged and supported.
   • The starting point of discipline will depend on the seriousness of the offence.
   • A first minor offence will generally warrant a verbal warning (perhaps after initial counselling has proved ineffective), whereas a more serious offence may warrant a written or final written warning for a first offence.
   • In the case of very serious misconduct which has the effect of making a continued employment relationship intolerable, corrective discipline may not be possible and dismissal could be the appropriate sanction.
2. Deterrent action goals of discipline
   • Deterrence or discouragement is considered when rehabilitation is not successful.
   • Where an employee’s behaviour fails to improve in spite of counselling and other forms of discipline, he or she may ultimately be dismissed. This will act as a deterrent to other employees.
   • Where losses from petty theft are of serious concern to the employer, dismissal may be resorted to for the theft of a minor item (e.g. a bar of chocolate) in order to act as a deterrent.
   • Suspension without pay may also be used as a less harsh alternative to dismissal, and this too will have a deterrent effect, both on the employee concerned and on other employees. There must however, be an agreement to implement such a sanction as suspension without pay has contractual implications and it must be implemented after the employee has been given the opportunity to have their side of the story heard .
3. Preventative goals of discipline
   • Adequate control mechanisms are an important factor in controlling misconduct at the workplace.
   • Preventative action may be taken where an offending employee is retained, for example by moving the employee to an area where the offence is unlikely to be repeated, or restructuring the job to ensure stricter control mechanisms.
   • This could involve a demotion, subject to the employee’s agreement to the change in terms and conditions of employment and must be implemented after the employee has been given the opportunity to have his/her side of the story heard (make representations).
   • If the employee does not agree to the demotion the employer would be entitled to proceed with the dismissal, provided that the offence is one that is serious enough to warrant dismissal.
4. Punitive action goals of discipline
   • Punitive action should not be encouraged when it comes to workplace discipline. It is often used when an employer is angry with an employee and may have the unintended consequence of co-employees seeing the employee as a victim of unfair treatment rather than a recipient of corrective or just disciplinary action.
   • Employers should not use financial penalties, such as the withholding of wages, as disciplinary measures. However, requiring an employee to repay the losses caused by his / her misconduct should not be viewed as retribution, provided this is done in accordance with the Basic Conditions of Employment Act 75 of 1997. For example the withholding of pay in respect of a period of unauthorised absence is not a disciplinary sanction, but simply the application of the “no work, no pay” rule.

[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

The goals of workplace discipline

[vc_row][vc_column][vc_column_text]

An overview of how to manage conduct and capacity in the workplace

 

It is essential for employers to fully understand all aspects of disciplinary and incapacity procedures, and the legal requirements and the rights involved.

 

The manner in which an employer handles challenges in respect of an employee’s conduct and capacity in the workplace can impact on a case right up to the arbitration, Labour Court, Labour Appeal Court and Constitutional Court stages, should the employee decide to challenge it.

 

Since workplace discipline and incapacity enquiries form part of the broader dispute resolution system, it cannot be examined in isolation. In order to manage workplace discipline effectively, as a first step, employers need to have a big picture view of the various components of the dispute resolution system that impact on workplace relationships, namely:

 

• The sources of South African Labour Law;
• The main pieces of employment legislation (statutes);
• The South African labour dispute resolution institutions and their roles.

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text][/vc_column_text][vc_column_text]

An overview of discipline at the workplace

 

While the focus of this section is dealing with workplace challenges once they have already arisen, it is important to stress the value of building positive relationships within the workplace.

 

The ultimate goal should be to get to a position in a workplace where sound work relationships and adherence to workplace rules and procedures stems from the internal motivation of the employees concerned.  This is more likely in a workplace where there is respect between managers and the employees and where the contribution of the employees is valued.

 

Employees have a right to fair disciplinary action

 

The right to fair disciplinary action comes from:

 

• Section 23 of the Constitution, 1996: “Everyone has the right to fair labour practices”; and
• Section 185 of the Labour Relations Act 66 of 1995 (LRA): “Every employee has the right not to be unfairly dismissed and not to be subjected to unfair labour practices.”

 

The right to ‘fairness’ also extends to employers

 

The Constitutional Court has found that the reference to ‘everyone’ in section 23 of the Constitution extends to employers as well and that the concept of fairness extends to both employers and employees. This principle is reflected and reaffirmed in Schedule 8 to the LRA, the Code of Good Practice: Dismissal (the Code).

 

In terms of item 3 of the Code:[/vc_column_text][/vc_column][/vc_row][vc_row css=”.vc_custom_1526860179029{background-color: #dddddd !important;}”][vc_column][vc_column_text]“…employers and employees should treat each other with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]The LRA recognises three grounds or reasons on which termination of employment might be legitimate. These grounds are –

 

• The conduct of the employee (behaviour related dismissal).
• The capacity of the employee (poor performance, ill health).
• The third ground relates to the employer’s operational requirements (retrenchment).

 

Employers and employees both have rights and obligations within the workplace. These include the need to exercise fair labour practices on the part of employers and the duty to further the employer’s business interests on the part of employees.

 

These rights and obligations may arise from:

 

• Statutes (for example the Basic Conditions of Employment Act 75 of 1997);
• Collective agreements reached between trade unions and employers;
• Individual contracts of employment; and
• Employer imposed policies and procedures.

 

The contract of employment

 

The employment relationship is established by an agreement entered into by an employer and an employee. This agreement is known as a contract of employment. In terms of the contract of employment the employer and the employee have certain rights and obligations.

 

If one of the parties does not carry out his/her obligations or duties in terms of the employment contract that party is said to be in breach of the contract. The breach of contract may result in the employee taking legal action against an employer or the employer taking disciplinary (or other) action against the employee, which could result in the employee being dismissed.

 

Disciplinary and incapacity procedures

 

• The employer should deal with the breach by following the procedures that are set out in the Code or the company’s own policies and procedures.
• The Code sets out guidelines for procedural fairness in respect of dismissals for misconduct and incapacity (poor performance and ill-health/injury).
• Disciplinary procedures are used to deal with misconduct by the employee and incapacity proceedings are used to deal with incapacity.
• If an employer has a disciplinary procedure, it should comply with the minimum standards as set out in the Code.
• Although the Code is a guideline only, CCMA and bargaining council arbitrators are obliged to take the provisions of the Code into account when determining whether an employer has acted fairly or not.

 

‘Over proceduralism’

 

Some company disciplinary codes and procedures are detailed and formalistic. Following the judgment in the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others 2006, 9BLLR 833, where the Court commented that “the rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model”, it is not necessary for an employer to follow such complex procedures. Bear in mind, however, that an employer is always required to follow its own procedures, and especially so when these procedures are contained in a collective agreement with a trade union.

 

What are the most important factors that should be considered when applying discipline at the workplace?

 

The following factors should be considered when applying discipline at the workplace:

 

• The importance of the rule breached;
• The circumstances of the offender; and
• The interests of the employer and employee.

 

Discipline should have a positive effect

 

The purpose of disciplinary action should be to modify or correct behaviour and not solely to penalise employees for offences.

 

The same applies to matters of incapacity.  Incapacity proceedings should have a corrective approach to enable the employee to “get back on track” and to determine whether external sources may be the cause of the poor performance.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][/vc_column][/vc_row]

Managing Conduct & Capacity in the Workplace

Written particulars of employment

[vc_row][vc_column][vc_column_text]

How to register with SARS

 

SARS registration – employer

 

An employer MUST register with SARS within 21 business days after becoming an employer.

 

Full details of how this should be done is available on SARS.gov.za

 

or by calling the SARS contact centre on 0800 007 227.

 

SARS registration – employees

 

Any person who is paid a salary or wage, is obliged to register for income tax with SARS, and obtain a tax reference number.

 

If the employee is not registered, then the employer is obliged to ensure that the employee registers for income tax.

 

The employee can go to SARS to register themselves – this cannot be done online – or via a third party – the employee must personally visit the SARS office.

 

• Certified copy of ID
• Proof of address
• 3 Months’ bank statements, original and stamped by the bank

 

The employer can use e-Filing to register an employee for tax.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]The easiest process is for the employer to require the prospective employee to register for tax and provide the employer with a tax reference number before confirming employment.[/vc_column_text][vc_column_text] [/vc_column_text][/vc_column][/vc_row]

[vc_row][vc_column][vc_column_text]

What employment details must an employer communicate to an employee when they start working?

 

The following details must be provided to the employee in writing in terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA).  This is in the interests of both employers and employees. This is a legal requirement in terms of Section 29 of the BCEA.

 

The written particulars can be in a form of a letter of employment or a formal contract of employment. It is advisable for the document to be signed by both parties to avoid future misunderstandings and disputes.  Section 29 of the BCEA states as follows:

• The full name and address of the employer;
• A brief description of the duties for which the employee is employed;
• The date on which employment began;
• The employee’s ordinary hours of work and days of work;
• The employee’s wage or the rate and method of calculating wages;
• The rate of pay for overtime work, Sunday work and Public Holidays;
• Any other cash payments that the employee is entitled to and the value of the payment in kind;
• any deductions to be made from the employee’s remuneration;
• When wages will be paid, and how they will be paid – cash, bank account, etc.
• How much leave the employee is entitled to;
• The period of notice required should employment be terminated or if employment is for a specified period, the date when employment is to terminate;
• A list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

 

Note, if any of these details change, the changes must also be given to the employee in writing.

 

If the employee is not able to understand the written particulars, the employer must ensure that they are explained to the worker in a language and manner in which s/he understands.[/vc_column_text][vc_column_text][/vc_column_text][vc_column_text][/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]The above-mentioned provisions do not apply to an employee who works less than 24 hours a month for an employer or to an employer who employs fewer than five employees.

 

Why does the BCEA state that an employer must supply a worker with these written particulars when starting to work?

 

Written particulars of employment serve to provide certainty to both employers and employees as to the conditions that govern the employment relationship.  This reduces the possibility for confusion and disputes that may arise when there is no written record of what has been agreed to.

 

An inspector from the Department of Labour may inspect the written particulars of employment. An employer must keep such records for a period of three years after the termination of employment. A labour inspector has the power, without warrant or notice, to enter any workplace (not including a private household) at any reasonable time in order to monitor and enforce compliance with the BCEA. The inspector may question a person on any employment law matter and require disclosure of information, as well as inspect certain documents or records.

 

If there is an agreement to change the written particulars, the law further requires that the document must be amended and the employee must be given a copy.

 

If an employee is not able to understand the written particulars, the employer must ensure that it is explained in a language and a manner that the employee understands.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][/vc_column][/vc_row]

COIDA registration form (Part 2)

[vc_row][vc_column][vc_column_text]

How to register a business with the Compensation Fund for Occupational Injuries and Diseases.

Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) refers –

“The purpose of this Act is to provide for compensation to workers who are disabled by occupational injuries or diseases, sustained during the course of their employment, or for death resulting from such injuries or diseases.”

The employer is required to register with the Compensation Commissioner.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]

• This must be done within 7 days of the first employee being hired
• To register, read the guidelines on how to complete the form and complete the W.As.2 form

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]

• There is also a copy of the form below
• For registration guidelines click the link below

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][/vc_column][/vc_row]

COIDA registration form