labour law pocket companion (south africa) by r.paterson

LabourLaw PocketCompanionHow to solve 40 labourproblems that drive otherpeople nuts...

R. PatersonPublisher

Labour Law for Managers

Labour law pocket com 0708:Labour law pocket com 0708 8/7/08 10:2

Labour Law PocketCompanion

Be smart on labour issues wherever you are with yourLabour Law Pocket Companion. This practicalpocketbook addresses 40 questions every employerand manager has to deal with, from poor performanceand overtime to privacy and bonuses, contracts anddismissals to types of leave and night work.

Accessible and concise, the Labour Law PocketCompanion is an easy-to-use problem solver that canbe read cover-to-cover in 30 minutes. This is theperfect 24/7 companion to your Labour Law forManagers – Practical Handbook.

All questions in this pocketbook were answered by theemployment law department of Edward NathanSonnenberg.

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© Fleet Street Publications (Pty) Ltd, 2008. All rights reserved. Nopart of this book may be reproduced by any means or for any reasonwithout the express written consent of the publisher. We do try toresearch all our recommendations and articles thoroughly, but wedisclaim any liability for any inaccuracies or omissions found in thispublication.


IndexA

Absconding employees . . . . . . . . . . . . . . . . . . .page 1

Annual leave . . . . . . . . . . . . . . . . . . . . . . . . . . .page 2

Annual leave – taking sick days . . . . . . . . . . . .page 3

B

Bonuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 3

Broken service . . . . . . . . . . . . . . . . . . . . . . . . . .page 4

C

Children in the workplace . . . . . . . . . . . . . . . . .page 5

Children in the workplace – playrooms . . . . . .page 5

D

Deductions from employee salaries . . . . . . . . .page 6

Displaying labour Acts . . . . . . . . . . . . . . . . . . .page 6

F

Family responsibility leave . . . . . . . . . . . . . . . .page 7

Fixed-term contracts . . . . . . . . . . . . . . . . . . . . .page 7

Fixed-term contracts – public holidays . . . . . .page 9

H

Health and safety in the workplace . . . . . . . . .page 9

HIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 11

Honesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 12

I

Insubordination and insolence . . . . . . . . . . . .page 13

Internal advertising . . . . . . . . . . . . . . . . . . . . .page 14

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L

Late coming . . . . . . . . . . . . . . . . . . . . . . . . . . .page 15

M

Managing poor performance . . . . . . . . . . . . .page 15

Maternity leave – annual leave . . . . . . . . . . .page 16

Maternity leave – informing employer . . . . . .page 16

N

Night work . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 17

Night work and shift allowance . . . . . . . . . . . .page 17

Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 18

O

Overtime . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 19

P

Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 20

Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 20

Privacy – CCTV cameras . . . . . . . . . . . . . . . .page 21

R

Restraint of trade . . . . . . . . . . . . . . . . . . . . . . .page 22

Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . .page 23

S

Shift allowances . . . . . . . . . . . . . . . . . . . . . . . .page 23

Sick leave – depression . . . . . . . . . . . . . . . . . .page 24

Sick leave – entitlement . . . . . . . . . . . . . . . . .page 25

Sick leave – Fridays and Mondays . . . . . . . . .page 25

Smoking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 26

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T

Transfering employees . . . . . . . . . . . . . . . . . .page 26

U

Unfair dismissal . . . . . . . . . . . . . . . . . . . . . . .page 27

Unpaid leave . . . . . . . . . . . . . . . . . . . . . . . . . .page 27

W

Warning letters . . . . . . . . . . . . . . . . . . . . . . . . .page 28

Witnesses - intimidation . . . . . . . . . . . . . . . . .page 28

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Absconding employeesQ:

We had an employee who was a suspect in a theft case(stealing from the company) who the police have beeninvestigating since June.

He was paid for the full month of July on 26 July, anddidn’t return to work after that date. On 4 August,management asked another employee who knew theabsconding employee to make enquiries about hiswhereabouts. As a result, the absconding employeesubmitted his resignation to our Branch Manager viathe enquiring employee.

We have discovered that he started work with anothercompany, around the time of not returning to work on27 July. In addition, the employee has an outstandingloan of R1 200 from our company. At the time heabsconded he had four days’ leave due to him, and isentitled to a refund from the company’s providentfund.

We intend issuing a garnishee order for the R1 200against his new employer. However, before we do thiswe want to confirm other claims we’re entitled to, sowe can combine the full amount.

A:

The best course of action is to formally record in aletter to the employee that you were informed of hisresignation, are aware he had started working foranother company and you accept his resignation witheffect from the date you became aware of it. Youshould get the employee to sign the letter, if possible.

You’ll be obliged to pay the employee for hisoutstanding leave. The employee isn’t entitled tonotice pay if he resigned without giving you notice.Given that he has tendered his resignation andimmediately started working at another company, heisn’t tendering his services to you during his noticeperiod and you can certainly refuse to pay him notice.

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Whether he’s entitled to pension withdrawal benefits isan arrangement between the employee and the pensionfund – and not the employer. But if he has stolen fromthe company you can ask the trustees to withholdpayment of his pension benefits to allow you time toget a court order for the monies due to you, so you canobtain payment from his pension benefits.

Other than the R1 200, you would be able to claim theamount he stole from the company, provided you canprove how much that was. These are the amounts youcan claim from the employee (and you may be able torecover the stolen money from his pension benefits asmentioned above).

For more information about absconding employees seesection A01 of your Labour Law for Managers –Practical Handbook.

Annual leave Q:

The Basic Conditions of Employment Act saysemployees are entitled to a minimum of 21consecutive days’ annual leave – does this includeweekends, or is an employee entitled to 21 workingdays? We have always allowed our employees 15working days. This plus six weekend days wouldequal 21 consecutive days, as required. Are we corrector must we allow 21 working days?

A:

The 21 consecutive days includes weekends, soemployees are entitled to 15 working days (assumingthey work a normal five-day week).

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Annual leave – takingsick days

Q:

If an employee falls sick while she’s on annual leave,can she be credited with the number of days she wasoff sick? In other words, these days won’t be countedas part of her annual leave.

A:

Sick leave can’t run concurrently with annual leave. Ifyou happen to fall ill while on annual leave, you can’tconvert the annual leave into sick leave, even if youhave a medical certificate.

You can refuse the employee’s request.

For more information about annual leave see sectionE01 and L04 of your Labour Law for Managers –Practical Handbook.

BonusesQ:

Our company policy and employment contract statethat “annual bonuses are paid in November every year.An employee will however forfeit any right to a bonusshould he resign or be dismissed during the year.”

When employees are employed for the full year, theyreceive a full 13th cheque. The bonuses aren’tperformance based.

There’s a division within management about this.What happens when an employee leaves during theyear, should a pro-rata portion of the bonus be paid?

A:

Your company’s policy and contract answer thisquestion. If employees leave your company during the

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year they won’t be entitled to a bonus. This is acommon and legitimate clause in contracts of manycompanies, especially in relation to a bonus that isn’tperformance based.

If an employee leaves during the year, the companywon’t be obliged to pay a pro-rata portion of thebonus. The company might consider paying a pro-rataportion of a performance-based bonus, since theemployee would have performed up to the date of hisor her departure. However, yours isn’t a performancebonus, so the company isn’t obliged to pay a pro-rataportion.

The company may, however, pay a pro-rata portion outof goodwill. Companies usually do this when anemployee is dismissed for operational requirements, orwhen the parties have reached an amicable agreementon termination of employment.

For future reference I would recommend yourcompany states clearly in the contract and policy thatemployees won’t be entitled to the bonus if they’re notin the employ of the company on 1 November(assuming that the bonus is paid at the end ofNovember).

Broken service Q:

One of our employees left our company four monthsago and now wants to rejoin.

What’s the period where we can reinstate without lossof service?

A:

The service is regarded as unbroken when the breakwas anything up to 12 months (Basic Conditions ofEmployment Act). But you can always agree to treatservice as unbroken for a longer period.

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Children in the workplace Q:

School holidays are here now and a number ofemployees are bringing their children to work. Whatdoes the law say about children in the office?

A:

The law doesn’t expressly say anything about bringingchildren to work. However, you have a general dutytowards your employees and other people in theworkplace to provide a reasonably safe workingenvironment. Therefore, if the children in theworkplace cause an accident and you didn’t takereasonable steps to prevent this, you might be heldliable. You should also beware of liability if thechildren suffer harm as a result of negligence by oneof your employees – you could be held liable.

Children in the workplace– playrooms

Q:

Many of our employees have to work overtime duringthe week and on Saturdays. They usually bring theirchildren along. As a result we’ve decided to build aplayroom to occupy the children while their parentsare working. We’ll have one or two candidates whowill keep an eye on the children.

Our biggest concern is the legal implication regardingthis project.

A:

I don’t think there is a problem with the project.However, it’s important you consider the health andsafety of the children. Make sure you comply with allthe rules and regulations pertaining to looking afterchildren. You might also need a licence before you can

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start with this project. Laws regulating the running ofday care centres would be relevant in this regard.

Deductions fromemployee salaries

Q:

I understand that deductions may be made from anemployee’s wage for damage he has caused as persection 33 or 34 of the Basic Conditions ofEmployment Act. What are the conditions andprocedures we must follow to put this into effect?

A:

The conditions contained in the BCEA are quite selfexplanatory, e.g. you need an agreement in writing tothe deduction or a court order permitting the deductionand the deduction can’t exceed 25% of the employee’sremuneration etc.

For more information about deductions see sectionE01 of your Labour Law for Managers – PracticalHandbook.

Displaying labour ActsQ:

Must we display summaries of the Basic Conditions ofEmployment Act (BCEA) and the Employment EquityAct (EEA)? Or can we make all the relevant Actsavailable in a summary format in a book or fileavailable to all staff members?

A:

Unfortunately, you’re obliged to display summaries ofthe BCEA and EEA in a place where they’reaccessible to employees. The provisions of the BCEAand EEA are mandatory in this regard.

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Family responsibilityleave

Q:

I have an employee who applied for familyresponsibility leave when her mother in-law died. Herhusband of 20 years was out of the country at the timeand she assisted her sister in-law with all thearrangements. Must I grant her family responsibilityleave?

A:

The statutory entitlement to family responsibility leavein the BCEA is as follows:

Provided an employee has been employed for morethan four months and works for at least four days aweek, she is entitled to three days’ familyresponsibility leave when the her parent, adoptiveparent, grandparent, child, adopted child, grandchildor sibling dies.

Your employee’s mother-in-law doesn’t fall within theabove category and you are, therefore, not obliged bylaw to grant this leave (although you can make anexception for compassionate reasons based on thecircumstances).

For more information about family responsibility leavesee section E01 of your Labour Law for Managers –Practical Handbook.

Fixed-term contractsQ:

We are an architect practice. We work mainly for thegovernment.

1. If we employ someone on a fixed-term contractand we don’t receive any additional work, how dowe handle it if the contract hasn’t expired? If we

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decide to keep him for the total period and wereceive no work, can we safely not renew thecontract on the basis that there’s no more work forhim?

2. If we employ someone on a fixed-term contract,must we renew the contract?

3. If a regulation is stipulated that the employee getstraining for a specific skill and he doesn’t masterthe skill in the time allocated i.e. the probationperiod, can the contract safely be terminated beforethe fixed term?

A:

1. This sounds like an operational requirement(economic). Ordinarily you would invite theemployee to a consultation process in terms ofsection 189 of the Labour Relations Act (LRA).However, since this is a fixed-term contract, youcan’t terminate it before it expires (even foroperational reasons), unless this is expresslyprovided for in the contract. Therefore, if thecontract doesn’t provided for early terminationthere’s nothing you can do. You’re bound until thecontract expires.

2. You aren’t obliged to renew a fixed-term contract.However, if the contract provides that it “may” berenewed, you must give reasons why it won’t berenewed. If the contract doesn’t say anything aboutrenewal, you’ll be safe in not doing so – providedyou didn’t create any legitimate expectation ofrenewal. Therefore, you should advise theemployee before the expiry of the contract that itwon’t be renewed, if this isn’t stated in the contractalready.

3. With regard to the last question, I’m not sure whetherthe regulation you refer to is a legislative or acompany regulation. Either way, you can safelyterminate the contract (even before expiry of the fixedperiod) if the contract allows for early termination onthe grounds on poor performance and if:

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• the employee can’t perform his duties becauseof lack of a skill

• he has been given reasonable time to acquirethe skill

• you’ve given the employee training,counselling, advice and guidance.

Always give the employee an opportunity to be heard,however, before you make a final decision toterminate.

Fixed-term contracts –public holidays

Q:

If you have an employee on a one-month fixed-termcontract does he qualify for public holiday pay?

A:

Yes.

Health and safety in theworkplace

Q:

We have an employee (who cleans and makes tea)who has epileptic fits because she doesn’t take herprescribed medication (as stated by at least threedoctors). She has been formally counselled andwarned that she has to take her medication. The doctorhas warned her that she is placing her job in jeopardyby not taking her medication.

She has to use electrical appliances, climb an 18-stepstaircase to get to the second floor, use a step-ladder toclean windows and use cleaning substances etc.

Her latest medical report recommends that she mustn’t

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use electrical appliances (which makes up 70% of herjob function). Her job can’t be modified and there’s nosuitable alternative position available.

Other staff members were traumatised after she hadthe seizure. There’s even talk that one staff member isthreatening to leave if the situation doesn’t improve.Other staff members are also very uneasy when she’sin the vicinity.

One employee was bitten while trying to help herwhen she had a seizure. She is supposed to attendtherapy talks at the clinic once a month, but shedoesn’t.

After every seizure at work the employee is first takento the clinic and then home after treatment. She thennormally takes sick leave.

We have tried monitoring her to ensure she takes hermedication on a daily basis, but this was unsuccessfulas she didn’t co-operate. The doctor has told us thatshe won’t be eligible for medical boarding or adisability grant becasue her condition is treatable, ifshe complies with the medical advice given.

Here are my questions:

1. If we allow her to continue with her normal duties,will the company be held liable if she injuresherself or someone else during a seizure?

2. Is the company not contravening the OHSA byallowing the risk of this happening?

3. Will it be classified as constructive dismissal ifanother staff member leaves the company becausethe risk is too much for her to handle?

A:

1. If the employee is injured on duty, she would beentitled to compensation in terms of theCompensation for Occupational Injuries andDiseases Act, no 130 of 1993 (COIDA).

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If someone else is injured, whether the company isliable will depend on if it could have prevented theaccident. If you don’t take active steps when youcould have prevented this accident occurring, youmight be liable for an injury to another employee.

2. The Occupational Health and Safety Act, no 85 of1993 (OHSA) provides that every employer has ageneral duty to provide and maintain a workingenvironment that is safe and without risk to thehealth of its employees. This duty may extend tonot allowing an employee who is prone to epilepticfits to perform any potentially hazardous work thatcould endanger her and other employees.Operating certain electrical appliances, climbingstairs and ladders are potentially hazardous work.You would be in breach of this obligation if youallow the employee to work in her currentcondition.

3. Constructive dismissal occurs when the employerhas made continued employment intolerable for theemployee. There must be no other alternative butfor the employee to resign from employment for aconstructive dismissal claim to succeed. In thepresent matter, if you can show that you have takensteps to deal with the situation, for example byplacing the employee in alternative employmentwhere she doesn’t pose a risk to other employees,it would be difficult for an employee to prove aconstructive dismissal claim.

HIVQ:

A private hospital has reason to believe a nurse whoworks in its casualty department has contracted HIV. She denies this, and refuses to accept analternative administration post. What should thehospital board do?

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A:

You must bear in mind that you can’t discriminateagainst a person in any employment policy/practice forany reason, including that person’s HIV status.

Forcing a person to accept an alternative positionbecause you suspect she contracted HIV wouldordinarily be unfair discrimination. You would only beable to insist that she accept an alternative position ifyou could show that it’s imperative in her particularjob that she mustn’t be HIV positive because of therisk to health and safety of others. You can only testfor HIV with the permission of the Labour Court. Ifyou believe that positive HIV status makes herunsuitable for the job, you would have to bring anapplication to the Labour Court asking for permissionto test and justifying why it’s an inherent requirementof this particular job that she not be HIV positive. Ifthe risk is minimal or can be controlled, you wouldhave no case for testing or discriminating against heron the basis of her HIV status.

Honesty Q:

I employ a sales rep. For the past two weeks, I’ve beensuspicious that he’s been lying about seeing clients.I’ve confronted him on many occasions. He’sresponded by saying that he made these visits, but hasno contact number for the various companies. Iphoned a few and they all said he never came.

He eventually told me this morning that he lied. Hedid the same thing a few months ago. We’ve employedhim since February 2003. I’ve had endless problemswith him not completing his work, abusing cell phonesand reckless driving. I investigated the previousproblems and managed to solve most of them.

Should I write a warning letter?

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A:

It seems you’ve enough grounds to summarilyterminate the employee’s employment. Lying aboutvisiting clients is a serious case of dishonesty, which isfundamental to an employment relationship. I wouldinstitute disciplinary proceedings against the employeeand charge him with all the charges you cansubstantiate and prove. I would argue for dismissal inthat disciplinary hearing. However, if you feel you canwork things out with the employee, you can issue himwith a written warning and hope he’ll mend his ways.Bear in mind, however, that you may be setting anunhealthy precedent of tolerating dishonesty amongstyour employees.

Insubordination andinsolence

Q:

One of our employees is required to visit retail storesand obtain orders and merchandise. This is set out inhis call cycle and is the basis of his job description.The employee refuses to visit a particular store,because the company doesn’t give him an allowancefor parking money, despite there being free customerparking available at the particular store.

In the last incident the employee went to one store andsat in the parking lot for the whole day. The nature ofour business requires us to visit all our stores to obtainorders. This is our only source of revenue.

A:

This seems to be a case of misconduct and you need todiscipline the employee, e.g. for insurbordinationand/or insolence and/or failure to follow instructions.The employee seems to be reneging on his duties andthe employment contract, which is unacceptable, andmust be dealt with. You need to be satisfied that hisconcerns about parking have been dealt with or haveno merit or foundation.

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Internal advertising Q:

The company had a vacant position for a MaintenanceManager. They didn’t advertise it, but considered threepossible internal candidates for the position at amanagement meeting.

They were assessed for suitability based on leadership,communication, ability to work without supervision,knowledge of the job, directing and controlling staff,attitude towards the company and commitment. One ofthe three was selected and appointed. Now one of theother candidates has lodged a grievance because theposition wasn’t advertised internally. The companydoesn’t have a policy that requires internal advertising.

A:

If there’s no company policy about how vacanciesshould be filled and whether or not they should beadvertised, it would be difficult to argue that thecompany acted unfairly. It’s the employer’s prerogativeto employ the person it thinks is suitable for aparticular position, provided this appointment is fair.

In the present matter, it’s important to determine theemployee’s exact allegation or dispute. If it’s the factthat the position wasn’t advertised, I don’t think hisargument would go very far, as long as the processwas fair. Similarly, if he feels he should have beenappointed instead of the other person, he would haveto show why he’s the better candidate. If the processfollowed was fair he won’t succeed.

For more information about internal advertising seesection R02 of your Labour Law for Managers –Practical Handbook.

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Late comingQ:

If an employee arrives at work late (in this case onehour late), can we send the employee home, anddeduct either unpaid or annual leave for that day?

A:

Rather issue employees with written warnings anddon’t pay them for the hours they didn’t work.Eventually late coming on an ongoing basis anddespite warnings can justify dismissal.

Managing poorperformance

Q:

I am currently performance managing a staff memberdue to non-performance in terms of sales. I need toknow the length of the performance managementprocedure. If the staff member makes her targets, thendoesn’t achieve them for several months, can I stillproceed with a disciplinary hearing?

A:

There’s no stipulated time period within which toperformance manage a person. You need to give theperson performance objectives, guidance, training,counselling etc. and a reasonable time to improve herperformance. What constitutes a reasonable timedepends from case to case and also depends on thenature of the poor performance.

If you get to a stage where you determine that, despiteadequate training, guidance, counselling etc. theperson is unable to perform up to the standardsrequired, you can convene a performance managementhearing at which her continued poor performance andemployment going forward is considered. Dismissal

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can sometimes be appropriate. Please note: this isn’t adisciplinary hearing. It’s part of the performancemanagement process.

For more information about family responsibility leavesee section P01 and P05 of your Labour Law forManagers – Practical Handbook.

Maternity leave – annualleave

Q:

Does my employee lose her accumulated annual leavewhen she goes on maternity leave? Must we ensureshe takes these days before maternity leave begins?

A:

The answer is no. An employee is entitled to fourmonths’ maternity leave in addition to annual leave,sick leave and family responsibility leave. Therefore,an employee doesn’t lose her accumulated annualleave when she goes on maternity leave.

Maternity leave –informing employer

Q:

Is the onus on the employee to advise the employerthat she is pregnant? By what stage of her pregnancyshould this be done? We are assuming she is pregnant,as it has become ‘visible’. Should I approach her orleave her to inform us?

A:

The employee isn’t obliged to inform you she ispregnant, or that she intends to be pregnant. Her onlyobligation is to notify you at least four weeks beforeof the date when she intends to begin maternity leave

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(Section 25 of the Basic Conditions of EmploymentAct).

For more information about maternity leave seesection E01 and L06 of your Labour Law forManagers – Practical Handbook.

Night work Q:

Some employees work overtime until after 6pm. Do I have to pay them overtime and a shift allowance, oronly the applicable overtime?

A:

If the work is performed after 6pm, you also need topay a night shift allowance.

Night work and shiftallowances

Q:

I am the owner of a convenience store and coffee shopsituated at a hospital in Pietermaritzburg. We don’t fallunder a bargaining council and adhere to the BasicConditions of Employment.

Please will you advise me on the following two issues:

1. We operate a trolley in the hospital for theconvenience of patients and visitors. Our trolleyoperators work a 12-hour shift from 9am to 9pm.Please will you advise me if I am liable to pay thetrolley operators a night allowance for the hoursthey work between 5pm and 9pm?

2. This business operates seven days a week andemployees work on a Sunday as part of theirworking week. They’re given a day off during theweek in lieu of their Sunday shift. Please will youadvise me if I am liable to pay my workers time

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and a half, or to allow them time and a half off, forSunday work?

A:

Yes, you’re liable to pay them a shift allowance.Please note that night work means work performedafter 6pm (not 5pm) and before 6am. Please notefurther, instead of a shift allowance, you can reducethe employees’ working hours as compensation fornight work. This provision, however, doesn’t apply toemployees who earn more than R115 572 per year.

If employees ordinarily work on a Sunday, you mustpay them at one and a half times their wage for eachhour worked. Or, you and your employees may agreethat you grant them paid time off equal to thedifference between the pay they receive for workingon a Sunday and one and a half times. Therefore, inyour case, you can pay the employees their normalwage rate for working on a Sunday and grant themhalf-time leave.

For more information about overtime includingSunday time see section O02 of your Labour Law forManagers – Practical Handbook.

NoticeQ:

I have a client whose employee resigned from hisservice without giving the required notice as per theemployment contract. What are his rights to claimcompensation from the employee for failing to givenotice and in what forum should the client proceed?

A:

The employer can sue the employee in the civil court(e.g. Magistrate’s Court) for breach of contract andclaim damages/specific performance, i.e. the normalcontractual remedies for breach of contract.

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For more information about notice see section E01 ofyour Labour Law for Managers – PracticalHandbook.

OvertimeQ:

All my employees are paid a basic, incentive andcommission on sales. When I employed them Icommunicated that they’re paid these amounts, as Idon’t pay overtime. I also said I want them to earnmore if our turnover grows and less if our turnoverdeclines.

Am I still forced to pay overtime?

A:

Please note that the overtime provision in the BasicConditions of Employment Act doesn’t apply to thefollowing employees:

• senior managerial employees

• employees engaged as sales staff who travel topremises of customers and who regulate their ownhours of work

• employees who work less than 24 hours a month

• employees who earn more than R149 736 perannum.

You’re obliged to pay all employees who aren’tincluded above for overtime worked. You can also giveyour employee time off in lieu of payment forovertime but you must have an agreement thatprovides for this. The time off must equate to whatyou would have had to pay if you had paid for theovertime.

For more information about overtime see section E01of your Labour Law for Managers – PracticalHandbook.

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PoliciesQ:

Thank you for your comments on the new legislationregarding an employee’s privacy and the reading andintercepting of emails (Regulation of Interception ofCommunications Act No 7 of 2002 (RICA)). We havea policy in place. However, we’ve had resistance fromone of the departments to sign the policy. Legally, isthere anything we can do?

A:

You can’t force employees to sign the policy. It’ssufficient, however, that you make the policy known tothem and tell them that, notwithstanding their refusalto sign, it’s still applicable and binding on them.

PrivacyQ:

I have an employee (person A – senior operator) whoopened and studied another employee’s appointmentletter (person B – foreman) without their knowledge orconsent. In this letter person B’s remuneration packagewas set out and the envelope was marked confidentialwith person B’s details on the outside.

Person A then discussed the information in the letterwith other employees.

Does this breach of confidentiality justify a dismissalor only a severe final written warning? Ourdisciplinary code views this type of offence as a majorinfraction.

A:

The offence constitutes a serious breach ofconfidentiality and an invasion of a person’s privacy.The act amounts to misconduct and the employeeshould be disciplined.

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The sanction you must impose depends on howseriously your company views the offence and to whatextent person A’s conduct has strained yourrelationship with person B. Anything from a finalwritten warning to dismissal may be an appropriatesanction depending on various factors, e.g. seriousnessof the offence, the impact on the employmentrelationship etc. It would also depend on the extent towhich you have warned employees that this sort ofoffence can result in dismissal even for a first offence.

Privacy – CCTV cameras Q:

We market, sell and install CCTV cameras to mostlyfactories/industrial sites.

Some of our clients wanted to know what labour lawsays about monitoring employees. The CCTV camerasare mostly used for time management, i.e. wherecompanies work 24 hours and production falls at nighttime. The cameras are also used to monitor theft.

A:

You may use CCTV, as long as this use doesn’tinfringe on a person’s right to privacy. You wouldinfringe a person’s right to privacy if you install acamera in the person’s private domain or where theperson has a reasonable expectation of privacy – forexample in the toilet or shower room.

However, you may install cameras on the shop floor,as employees generally can’t have a reasonableexpectation of privacy in these work areas.

For more information about privacy see section P08 of your Labour Law for Managers – PracticalHandbook.

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Restraint of trade Q:

I have a light engineering/metal pressing company andmy factory manager, who has been in our employ forseven years, has just resigned. I’ve heard from othersources that he has been offered a position as factorymanager with one of my biggest supporting clients,who intends going into direct competition with us. Iunfortunately don’t have a signed contract with myfactory manager. Is there anything I can do, as I willbe losing a big portion of our monthly income and mykey staff member will also obviously be leaving withall the company’s vital inside information?

A:

You would have been in the best position if you hadconcluded a restraint of trade agreement with theemployee.

Nonetheless, even without a restraint of tradeagreement, people are prohibited from unlawfullycompeting with others in terms of common law. Yourformer employees have a common law duty not tocompete unlawfully with your business, for example.They would do this, for instance, by using your tradesecrets or confidential information, price lists etc. totheir advantage and to your prejudice. Should yourformer employee do this, you may be entitled to aninterdict and any damages you may suffer. (You wouldhave to pursue the matter as a civil case.) Hopefully itdoesn’t come to this, but if it does, you have a limitedsolution. However, you can’t stop him from workingfor the opposition.

For more information about restraint of trade seesection R01 of your Labour Law for Managers –Practical Handbook.

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RetirementQ:

One of our employees, who has worked for thecompany for 26 years, turns 65 in February. Must heretire and stop work?

We intend to offer him part-time work for certain daysa week doing the same clerical job.

Does retrenchment come into this scenario, as thecompany is desperate to reduce costs in present poortrading conditions?

A:

Unless you have an agreed retirement age with theemployee, he’ll only retire at the normal retirementage for a person in his position. A normal retirementage hasn’t been defined in the LRA. To determine thisage, you have to look at factors such as industry normsfor retirement age for people in his position, yourcompany policy and past practice.

You can’t force an employee to retire if they haven’treached the agreed, if any, or normal retirement age.

As far as retrenchment is concerned, you’re free toretrench provided you have a genuine operationrequirement(s) to retrench the employee, e.g. reductionof costs etc. Even then, selection criteria may becomean issue especially for longer serving employees.

Shift allowancesQ:

Are employees who are paid a shift allowance entitledto it during a period when they haven’t worked shifts,e.g. during their annual leave or sick leave?

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A:

Annual leave is calculated on the employee’sremuneration, as opposed to sick leave, which iscalculated on the employee’s wages. Remuneration isa broader concept than wages. It includes theemployee’s wages, allowances, overtime payments,and any other payments an employee is entitled to.Wages, on the other hand, only refers to paymentmade to an employee for the employee’s hours ofwork.

A shift allowance is, therefore, included whencalculating an employee’s annual leave payment, butnot when calculating sick leave pay.

Sick leave – depression Q:

One of our employees is due to go on maternity leavenext month. However, she has been booked off workfor two weeks for depression. When we contacted heryesterday, she wasn’t at home, but riding around doingerrands for her husband.

A:

Depression is a sickness and a valid reason for sickleave if it impairs the employee’s capacity to performhis or her duties. The employee’s doctor can advisewhether or not the employee should be granted sickleave. Therefore, if the employee has a medicalcertificate that states that she will need an x amount ofdays off work to recover, you should grant theemployee the sick leave. You must also take intoaccount that the employee is pregnant. Both theemployee’s and baby’s health are of paramountimportance. I, therefore, recommend you grant theemployee sick leave if there’s sufficient proof she’ssuffering from depression.

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Sick leave – entitlementQ:

If a staff member has used up all his sick leave for thethree-year cycle (and he is only half way through thiscycle) can additional sick leave be taken as unpaidleave?

A:

An employee who falls ill after he has used up his sickleave entitlement can either take annual leave or go onunpaid leave. Be wary of employees who abuse sickleave though.

Sick leave – Fridays andMondays

Q:

Can the employer take off two days’ leave if anemployee is sick on a Friday and a Monday without adoctor’s note? Employees often don’t arrive for workon a Monday when they aren’t sick, but want to takean extended weekend. Sometimes they pretend to besick on Fridays too. What does the law say?

A:

The law says you aren’t obliged to pay an employeefor sick leave where he’s off work for more than twoconsecutive days, unless he produces a medicalcertificate. Arguably, if an employee is absent onFriday and then Monday, these aren’t “twoconsecutive days” because of the weekend break.

Your best bet would be to introduce a company policywhere if an employee is off sick on a day before orafter a weekend or public holiday, he’s obliged toproduce a medical certificate before the company payshim for that day.

For more information about sick leave see section E01

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of your Labour Law for Managers – PracticalHandbook.

Smoking Q:

Our board room has always been used as a smokingroom. The doors of the room open onto a veranda sothere is sufficient air flow. The company hasunilaterally decided to declare it a no-smoking zone.Only the veranda is still a smoking area. Was this thecorrect decision?

A:

In terms of the Tobacco Products Control Act, nosmoking is allowed in public places, unless it’s adesignated smoking area. The employer may designatesmoking areas. A public place is defined to include aworkplace. It appears the board room forms part of theworkplace and is therefore a public area. I think theemployer can designate it as a no smoking area,provide there’s another designated smoking area. Inmost companies no one is allowed to smoke inside thebuilding.

Transfering employees Q:

What’s the correct procedure to transfer a employeefrom one unit to another? I want to transfer a personfrom one work place (building) to another. Theposition, salary and working hours will stay the same.

A:

If the transfer is just a move from one building toanother without any change to the employee’s termsand conditions of employment, there’s no formalprocedure to follow. You can invite the employee toan informal meeting and advise him that his place ofwork will change from a particular date. If the move is

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material and will affect his working conditions thenyou would have to get his agreement, unless yourcontract of employment with him says he’s obliged toaccept a transfer.

Unfair dismissalQ:

What is the max award for unfair dismissal (if wedismiss an employee on the basis of excessiveabsenteeism – 60 days in 24 months due to accidents)?

A:

The maximum award if the dismissal is deemed to besubstantively and procedurally unfair is 12 months’compensation, however, you could also be ordered toreinstate or re-employ him.

For more information about unfair dismissal see andD01 of your Labour Law for Managers – PracticalHandbook.

Unpaid leaveQ:

An employee took one day’s unapproved leave the daybefore a public holiday and didn’t produce a validdoctor’s certificate. Am I legally entitled to give theemployee unpaid leave for the day before the publicholiday as well as the public holiday itself?

A:

If the leave was unauthorised and the employee didn’tgive a valid reason for not coming to work, it shouldbe unpaid leave. However, you must pay the employeefor the subsequent public holiday.

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Warning lettersQ:

Must employees sign warning letters?

A:

You can ask the employee to sign the warning. But ifshe refuses, you can’t force the issue. Just note on thewarning that the employee refused to sign and getsomeone to witness the fact that the warning washanded to her. The reason for getting an employee tosign a warning is simply a question of proof that thewarning was received.

For more information about warning letters seesection D02 of your Labour Law for Managers –Practical Handbook.

Witnesses – intimidation Q:

I would like to have more information on how tohandle employees that intimidate/allegedly intimidatesuppliers/other employees in cases where they’re keywitnesses in dismissible offence hearings.

Where written affidavits are presented as evidence andcross-examination is difficult, would you include themin hearings and at what point do you have to disclosethe identity of witnesses?

A:

Interfering with a company investigation intomisconduct and interfering with company witnesses orintimidation of other employees/suppliers may amountto misconduct. If this is the case, you’re entitled todiscipline the employee. The punishment woulddepend on the severity of the misconduct.

Using affidavits in a hearing is potentially problematicbecause it handicaps the other party as far as cross

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examination is concerned. Unless the other partyagrees to the facts set out in the affidavit, you mustavoid against using affidavits in hearings.

You aren’t obliged to reveal your witnesses to theother party unless it requests you to do so. If it’srequested you must oblige, unless you have a validreason e.g. you reasonably fear that the witnesses willbe tampered with or intimidated.

For more information about witnesses see C01 andD01 of your Labour Law for Managers – PracticalHandbook.

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labour law pocket companion (south africa) by r.paterson

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