Frequently Asked Questions About Labour Relations
Questions and answers to help you understand labour relations.
IF MY EMPLOYEE LOST THE COMPANY MONEY - MUST HE PAY THE COMPANY BACK?
Question:
One of our employees gave a customer a quote that was incorrect by R 500.00. This will cause the company to make a loss. Can we ask him to pay back the money or must she get a warning?
Answer:
If you want to get the employee to repay the money, you must get his written agreement to do so.
If he agrees, you can deduct no more than 25% a month from his remuneration. If he doesn’t agree, you can’t force him to pay it back or deduct it from his remuneration. Your other option would be to discipline the employee for negligence and issue an appropriate sanction.
HOW DO I DEAL WITH ABSENTEEISM?
This is a regular struggle for Employers and can have a major impact on businesses when it comes to their daily operational requirements.
Absenteeism over a day or two without leave or without good reason is regarded by law as minor misconduct.
If not careful then this behaviour easily becomes a trend among Employees but you as the Employer do not have to tolerate such behaviour. It should just be dealt with correctly.
In instances of absenteeism and abscondment, an employee must be afforded a hearing prior to his/her employment being terminated (other than in exceptional circumstances).
The employee should be notified of the disciplinary hearing and cautioned that the hearing will continue in his/her absence if he/she elects not to attend the hearing. In the event that the employee fails to attend the disciplinary hearing and depending on the reason for the failure to attend, the hearing can continue in the employee’s absence and a decision can be made.
These cases tend to end up at the CCMA quite easily and then the Employer is found not to have followed the correct procedure.
It is important here to reach out to a labour specialist to guide you in following the right procedure.
WHAT ARE MY RIGHTS AS AN EMPLOYER WHEN MY STAFF’S WORK PERMITS HAVE EXPIRED?
It is a legal requirement for foreign employees to have work permits in South Africa. Don’t allow a foreign national to work for you if they don’t have the required documents.
You still need to comply with labour law when dealing with this situation.
Initiate the incapacity process. During this process, provide some reasonable assistance to the employee. You can suspend their services until they get their work permits.
If you are going through this right now and need some advice, get in touch with us.
HOW DO YOU KNOW WHETHER YOU ARE BEING FAIR DURING A DISCIPLINARY?
Answer these 10 questions to find out.
1. Was the employee aware beforehand of the rules they are expected to obey?
2. Did the employee break the rule – and is there proof of this?
3. Would other people consider the rule to be fair or reasonable for the kind of work the employee does?
4. Does the company have a specific way that they handle misconduct, such as giving warnings – and have these processes been followed in the employee’s case?
5. Has the company informed the employee of the charges made against them in a language they understand?
6. Did the employee receive a set date for a hearing or does it keep being delayed?
7. Is the employee given a fair chance to prepare for the hearing?
8. Is the employee given a chance at the hearing to defend themselves?
9. Are the people making the rulings (judgment) at the hearing, fair and impartial (not biased against anyone)?
10. Will the employee be given a chance to appeal (ask for the judgment to be examined again) if they are not happy with it?
HOW DO I PROVE OR DISPROVE VICTIMISATION?
You must gather all the facts, listen to what everyone involved has to say, cut out the subjectivity and make an objective assessment of the matter. Being closely managed doesn’t necessarily amount to victimisation but being treated unfairly and taking unfair or unwarranted criticism may. You must strike a balance and do your best to ascertain where that balance is.
WHAT INFORMATION SHOULD A MEDICAL CERTIFICATE CONTAIN IN ORDER TO BE VALID?
A medical certificate must state that the employee was unable to work for the duration of the absence from work on account of sickness and/or injury. The detail of the account does not have to be given as it is considered doctor/patient confidentiality.
It must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients and who is registered with a professional council. This doesn’t include only medical doctors, and other health practitioners may qualify. Some (but not all) “sisters” may qualify.
HOW LONG DOES AN EMPLOYEE HAVE TO LODGE A CASE AT THE CCMA?
An employee has 30 days after the date of dismissal to refer a dispute to the CCMA.
If the dispute is not referred in time, the employee would have to apply for condonation in respect of the late referral and deal with:
a) The reasons for the delay/explanation for the delay, and
b) Prospects of success in the dispute.
HOW DO I DISMISS AN EMPLOYEE DURING HER PROBATIONARY PERIOD?
Her probation period ends next month. Can we let her go right now?
Before you dismiss her, you have to show that you:
– Gave her an opportunity to improve;
– Told her that her performance was not up to standard;
– Counselled her; and
– Treated her with patience.
If you comply with these 4 factors and she still doesn’t perform, you can terminate her employment after the hearing.
MUST WRITTEN WARNINGS BE SIGNED?
Signatures aren’t a legal requirement. As a matter of good HR practice, I would attempt to get the signature at the very least. If you get it, then that dispels the chances of a person challenging the warning or receipt of a warning.
If he/she refuses, can’t force the issue. Make a note of the warning that the employee refused to sign.
It is important here to reach out to a labour specialist to guide you in following the right procedure.
HOW DO I DEAL WITH STAFF WHO DO NOT FOLLOW INSTRUCTIONS?
They have been given the lawful instruction verbally and via email with dates of expectancy but they don’t deliver.
Here’s what you can do:
– Inform the staff in writing that despite previous requests, they are still failing to deliver and that this will result in disciplinary action in the future; and
– then further to that follow-through by following your disciplinary code and applying the appropriate disciplinary measure.
WHAT TO EXPECT IF MY EMPLOYEE TAKES ME TO THE CCMA AFTER THEIR RETRENCHED?
The reality is that employees have the right and some exercise the right whether they have a leg to stand on or not.
This is what I normally tell business owners in these cases:
An employee can refer a dispute to the CCMA for conciliation if she is unhappy about her retrenchment or severance pay.
• If there is more than one person in dispute:
If not resolved at conciliation one of the following can happen –
For severance pay – The matter will be referred to the CCMA for arbitration.
Unfair retrenchment – The matter should go to the Labour Court. If both, it can be dealt with at the Labour Court.
• If there is only one person in dispute:
For severance and unfair retrenchment – The matter will be referred to the CCMA for arbitration if conciliation fails.
HOW DO I CALCULATE MY EMPLOYEE’S SALARIES WHEN I RETRENCH THEM?
Make sure you follow the correct process before terminating their employment (e.g. the retrenchment procedures contained in section 189 of the LRA).
The minimum you can pay will be:
• Severance pay: one week’s remuneration for each completed year of service;
• Notice pay: four weeks’ remuneration, if they don’t work out the notice period; and
• Annual leave pay: payment in respect of accrued annual leave, if any.
Should you decide to re-employ them later, you can at the time negotiate the new terms and conditions of employment. Be careful of selectively rehiring one of the employees too soon after retrenching or the other may bring a claim against you.
MUST WE KEEP EXPIRED WARNINGS ON FILE?
You must keep all warnings in an employee’s file, the BCEA requires you to keep records. In some cases, you may be able to rely on expired warnings when you discipline an employee, particularly if he’s a habitual offender.
In such a case, you may have a look at the employee’s entire disciplinary record.
HOW TO DEAL WITH AN EMPLOYEE WHO IS ABSENT WITHOUT AUTHORISTATION?
If the employee is absent without leave or authorisation, you need to send them a letter, at the address they gave you, stating that they must report for duty before a specific date and time.
The employee must provide a reason for their absence. Once they report for duty, you can take disciplinary action against them.
If they don’t return by the date you set out in the first notice, serve him with a second notice at the address they gave you stating that they must return to work immediately. If they still don’t return you take disciplinary action against the employee.
CAN WE DISMISS THIS EMPLOYEE BASED ON POLYGRAPH EVIDENCE?
Commissioners and Labour Court judges have expressed a general reluctance to rely on polygraph evidence alone as proof of misconduct. You would ordinarily have to use supporting evidence to prove the dismissal.
However, if it’s the only evidence you have, the best you can do is to call the polygrapher as an expert witness to attest to the test, the manner in which it was conducted, the results etc. Aligned to that, you can then clarify that no other employee failed the test.
I reiterate, however, that in the ordinary course of events polygraph test results on their own are not sufficient to justify a dismissal.
“I recently had the pleasure of using FIC CONSULTING, and Tiaan Dwyer. He is very professional and incredibly knowledgeable, and an absolute gentleman. He focuses on small/ medium businesses. As an owner of a small business trying to navigate staff issues and labour law is a nightmare.
Should you need assistance with anything labour related, please do not hesitate to contact him. 5 star service is what you will get. Thank you Tiaan for all your help.”
Lisa Klimke – Owner Second Chance Clothing store
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