Frequently Asked Questions
An employers’ organization is a supporting body aimed at looking at the interest of the employers rather than that of an employer. Whilst an employer’s organization acknowledges the importance of employees and their interest, it strives to ensure effective and sufficient representation and service regarding collective bargaining to reach a settlement that benefits the employer justly and economically. Such negotiations consist of determining employee’s wages and benefits in the different sectors. They supply solutions for companies to participate in government and legislative bodies regarding national policies that regulates business in the Labour field. They assist employers by proving Labour relations, legal services and guidance regarding the Labour laws, by implementing training and compliance with the relevant laws. Employers Organizations may also provide legal representations at the relevant bargaining councils.
It is compulsory for a company to be party to a bargaining council should the main scope of work fall within the scope of a specific sectorial bargaining council, then the employer is obligated to comply with the main agreement of that relevant council. If the employer is not within the financial threshold or is not within the financial capacity to abide by the main agreement, the barraging collective agreement consists of an exemption clause which allows for an employer to apply for an exemption however the applicant would have to prove such circumstances justly. An employer can also undertake a service level agreement with a Labour broker of which the employees is under a different company and is therefore outsourced to the employer. The company would still be party to Council however the returns would be paid over by the Labour broker. The employer can also outsource other benefits schemes for their employees which the relevant council does not offer or may outsource the same benefits offered by the council should those benefits be more beneficial to the employees.
First you need to establish policies and procedures within the workplace which would set out guidelines on the company’s code of conduct. These policies must be made privy to the employees via a form of training and induction. The employees will receive copies of these policies and sign that they have received training and that they understand what has been explained to them. This process must be put in black and white, for should an employee commit an offence in future which would be in breach of either of the company’s policies, the employer can refer back to the date of implementation to confirm that the employee was aware of the rule which was contravened, which may resort to disciplinary action.
When an employee is rude or disrespectful by portraying acts of cheekiness it is often referred to as Insolence as an act of Insubordination. The employer has to ensure that an order on the company’s code of conduct is imposed upon the employees, and that contravening this order may result to disciplinary action such as warnings. The order must be lawful and reasonable. The employer must explain that failure to obey may result to dismissal should the offence be serious enough to warrant dismissal. Therefore, it is imperative that employers follow procedure regarding insubordination by providing counselling and issuing out warnings to the employee for the same or similar offence. Should the employer resort to dismissal, the act must be reserved for the events of gross insolence and gross insubordination. This includes proof that the employee was rude and aggressive towards management and that the continued relationship between the employer and employee is deemed intolerable, the dismissal will then be fair.
Whether there are grounds for dismissal or not will be determined by the weight of the offence. You can’t just dismiss an employee by telling him/her to pack their things and go. That is highly unfair dismissal. Now in order for a dismissal to be fair, you have to follow procedure such as:
Informing the employee of the allegations put against them in a manner of which they understand, the employee should be allowed at least 48hr notice in order to prepare for the hearing proceedings, the employee must be given a fair chance to state their perspective during the proceedings, the employer must appoint an external chairperson to ensure that the outcome of the hearing is not biased, the employee must be allowed to be represented by a shop steward or union representative, the chairperson must recess the hearing after mitigating circumstances and resume the hearing after 48hrs to ensure that the chairperson was not biased in any manner and that the chairperson took time to apply their mind, the chairperson on behalf of the employer must inform and explain the decision made as a sanction in the form of documentation, the employee must be given the right to appeal the outcome within 7 days, and should the employee be dismissed on an occurring offence, the employer may dismiss the employee provided that there was numerous warnings put against the employee.
This usually depends on whether the employer has abided by the OHSA in that the employee was made privy to the company’s Alcohol and Drugs Abuse Policy, and that the Occupational Health and Safety Act was made privy to the employee via statues put up on the notice board, and that the employee had received training regarding the company’s Health and Safety Policy. If it is the employees first offence it’s important to note that an employer cannot just simply dismiss the employee. The employer has to refer the employee to Section 2 (a) of the Occupational Health and Safety Act; General regulations and the company policy which states that an employee; who appears to be under the influence of intoxicating liquor or drugs are not allowed to work, enter or remain at the workplace; cannot be not under the influence of intoxicating liquor or drugs at the workplace; must not have intoxicating liquor or drugs in their possession; and cannot offer intoxicating liquor or drugs to other employees. This means that the employer is to test the employee and should the employee be over the company’s tolerance policy, the employee is to be sent home immediately. The employee must return to work the following day. Schedule 8 of the Labour Relations Act advises that the employer should treat such events as a form of incapacity and not misconduct. This act further requires that the employer must act in good faith to assist the employee where needed (e.g., counselling or rehabilitation) should the employee show a desire for such assistance. Should the employer refuse to offer a rehabilitation program, the employer must resort to HR for counselling for the employee. It is then important that the employee signs a final written warning for breach of company policy, intoxication on site and incapacity as an outcome. Should the employee commit the offence for the second time, the employee is subject to fair dismissal.
There are five common types of contracts; Permanent Contracts, Probationary Contracts, Fixed Term Contracts, Open-ended Contracts and Independent Contractors:
Permanent contracts are contracts that have an indefinite period, that means the contact consist of a start date but has no end date. This means the employee will remain at the company up until the employee wishes to terminate their contract or retire. Usually when an employee is employed permanently, they are entitled to all company benefits.
A Probationary Contract is a contract offered to a newly employed employee on that basis that the employer has the intention of employing the employee permanently. This contract is used analyses the employee’s performance and work capability to ensure that the employee is fit for the job. The LRA stipulates that Probation only applies to new employees -not to employees who are promoted on a trial basis. This kind of contract usually varies on a 3-month trial basis, if the employee is still not certain after evaluation has been considered, the employee can extend it to but not more than 3 months. An employer is not forced to put a new employee on probation, however it’s important to note that probation is only relevant to issues concerning work performance and capability, it cannot be applied to other forms of misconduct. Such other issues other than work performance must be dealt with in the same procedure applied to permanent employees.
Fixed-term Contracts are contracts that consist of a start date and an end-date. This means the contract will commence of a specific date and expire on a specific date. It is therefore the employer’s choice to either renew the contract or terminate it. The Labour Relations Act states that is the employee is paid below the legal threshold of R205 433.30 per annum then the fixed term contract is only limited to a period of 3 months, should the employee be earning above the threshold, the contract can be valid for a period of up to 12 months or more. This contract usually applies to a substitute filling in for an employee who for example went of maternity leave or it may apply to employers seeking extra Labour for a specific project. If the employee is employed longer than the period stipulated in the contract without justification, notice of renewal or extension, the employee will be deemed to have been permanently employed.
Open-ended contracts are a contract of employment on an open basis. Meaning there is no specific time period of which the contract will come to an end but only an engagement date. This contract allows for future changes, revisions or additions on an open-ended agreement. This contract may be approached as a permanent contract as it also entitles every employee to all company benefits and schemes and may be open to a probationary period before engagement of this open-ended agreement. This kind of contract is admissible in accordance to Section 29 (10) (m) of the BCEA. The section does not say that all limited period employment must contain the date when the employment is to terminate. The section does not say that all limited period employment contracts must have end dates. That is, the BCEA does not prohibit employment contracts where the end of the contract is determined by an event instead of a specific date.
Independent Contracting Contractors are not employment contracts but could rather be considered as a Service Level Agreement (SLA) in which the independent contractor will render a service to the employer but contains their own PAYE tax number and other benefits through the establishment of their own entity and not that of the company’s. This kind of contract does not limit the contractor to doing work for that specific employer but rather makes provisions that the contractor is entitled to performs work for other businesses outside of the employer’s premises. This agreement provides that the contractor will provide the employer with an invoice and the employer will make payment with an attached POP in the form of a retainer.
First you have to abide by the procedures of operational requirements. Retrenchment is usually a process an employer undertakes when the company has a low financial turnover (their expenses are exceeding their income), when there is a takeover without an ongoing concern, or when there is simply no work. This means that it is imperative that an employer makes a rational decision and is able to prove that the company is in a financial prejudice for arbitrary process that might take place in the future. An employer cannot just simply resort to retrenchment but should rather first attempt to remedy the company’s financial situation by giving the business a chance to regenerate income. This can be done by either by making some financial cuts such as perks, stationary, niche benefits, downsizing or putting the company on short time. If this is the case the employer would need to gather all the employees to have a conglomerate meeting disclosing the company’s financial difficulties and explaining to the staff that the company will be going on short time starting on a specific date for a specified period. This meeting must be recorded of which all the employees sign and a notice of short time must be put up on the notice board. The notice must include the date and period of which short time will commence. Note there is no specific period of which short time must be implemented, it can last for days, weeks or months. If the company is party to a bargaining council, the employer is to notify the bargaining council and keep them update should the process continue. Should the company still find themselves in a financial predicament after this, then the employer may resort to retrenchment. To start the retrenchment, process the employer has to first notify the council that they will be retrenching and then notify the employees 1 month before the retrenchment date via written notification. The employees must sign and acknowledge the letter of which both the employer and the employee keeps a copy. Subsequently to this, the employer will compensate the employees with 1 months’ notice pay, all their leave pays due to them, their severance pays which is 1week for each year worked, and provide them with all their statutory documents such as a letter of termination, confirmation of employment, certificate of service, UI19 Doc, IRP5’s and their Payslips.
If an employee refuses to sign you are within the capacity to instruct the employee to sign or there will be disciplinary actions. You can ask the employee for reasonable reasons as to why the contract could not be signed or you can get HR to contact the union should the employee be party to one, to justify and negotiate the terms and conditions of the contract. An employee who consistently refuses to sign a contract may be issued with warnings and may be summarily summonsed to a disciplinary hearing and be dismissed on failure to follow a valid instruction. If you want to avoid dismissal an employer may improvise and provide the employer with a document disclosing the employee’s rights and include those conditions in the form of rights rather than having the employee sign a formal traditional contract.
There are 4 forms of discipline applied in the workplace via a Code of Conduct and its disciplinary actions which are; verbal warning, 1st-2nd and Final Written Warning, suspension and termination. Each circumstance dependent on the form and seriousness of the misconduct performed will also determine the relevant form of discipline. It’s important for employers to implement a series of policies and procedures to ensure that disciplinary actions are fair and just in accordance with the Labour law and rules.