Tag: employees

Buckshot dismissals are risky

By lvan lsraelstam, chief executive of Labour Law Management Consulting

Frequently employers know that serious misconduct has occurred but are unable to prove which employee or employees are responsible. This can occur in a variety of circumstances.

For example:

• Stock may go missing from a warehouse or retail store where any of a number of employees had access to the stock and opportunity to remove it

• Damage may have been caused to business machinery in a workshop used by numerous employees

• Confidential information may have been leaked

• There may be cash shortages in tills or other cash storage points

Employers are often tempted in such cases to discipline everyone who could possibly have been involved in such misconduct. This buckshot approach by employers may be motivated by a number of factors including the thinking that:

• If we fire the lot we will be sure to get rid of the culprit

• Some case law has given the impression that such group dismissals may be justified

In the case of NUSFRAW obo Gomez & others vs Score Supermarkets (2003, 8 BALR 925) a group of managers were dismissed as a result of stock losses amounting to six million rand. While there was no proof that these managers were guilty they were fired. The CCMA arbitrator found that the poor management of the business by the dismissed employees had led to the losses and that this justified the dismissal.

Again in the case of FEDCRAW vs Snip Trading (Pty) Ltd the arbitrator ruled in favour of group dismissals. Here, the employer had a policy which held every employee responsible for stock losses. When stock disappeared several employees were fired despite the absence of direct evidence of their guilt.

The arbitrator found that the concept of group responsibility for stock losses was not unfair under the circumstances.

The outcomes of these two cases have misled a number of employers into believing that group dismissals are inherently fair. However, this will only hold true in exceptional circumstances. It will depend on the extent to which the employees specifically have responsibility for prevention of losses and have the means of preventing losses. It will also depend on the viewpoint of each individual arbitrator.

For example, in NUM & Others vs RSA Geological Services (2004, 1 BALR 1) fifteen employees were dismissed after kimberlite was found dumped down a borehole. The CCMA upheld the dismissal of five of the employees because there was some evidence of their individual guilt. However, the arbitrator ordered the reinstatement of the other ten employees as there was insufficient proof that they had been implicated in the dumping of the kimberlite.

Again in SAGAWU obo Cingo & Another vs Pep SA Limited (2004, 10 BALR 1262) the entire staff of one of the employer’s stores were dismissed for stock losses. The CCMA found that the group dismissal was unfair because the employer had failed to prove that the dismissed employees were guilty of misconduct. The dismissed employees were reinstated with full retrospective effect.

The apparent lack of consistency in case law and the powerful laws protecting employees from unfair dismissal sound a strong warning to employers not to act against employees before they fully understand their legal rights. The correct actions of the employer will differ from case to case depending on a number of legal subtleties and interpretations.

Wellness at work is a increasingly dominant theme in any discussion about the workplace but for many it’s a broad buzzword without much science behind it.

But Linda Trim, director at Giant Leap, says that thanks to a new research project called Wellness Together carried out by Sapio Research and that included 1 000 respondents, it is clear that productivity, creativity and profitability can be affected by employee conditions.

“The survey provides evidence of strong correlations between people feeling good about their workplace and a positive outcome for business. To achieve true ‘wellness’ attention must be given to every component that can impact mental and physical health.

“This means building structures, company cultures and of course also furniture and fittings because all these factors fit together and are important to people and the businesses they work for.”

Trim notes that the survey evaluated 6 key attributes of wellness in the workplace:

1. Movement

Musculoskeletal problems, namely those related to the back, neck and upper limbs, account for the second biggest reason for absenteeism from the workplace – after colds. “High performing companies are more likely to have facilities that allow people to adjust their work station to best suit them. This can mean anything from the height of the desk to having the option to sit or stand while working. It is important to move around and change environments every so often. This helps prevent dips in concentration, and could help prevent back and neck problems.”

2. Lighting

Harsh or overly bright lighting is considered a far greater distraction for employees that low level or soft lighting. “Yet lighting systems that have the ability to change their colour tone as the day progresses are the least common features in an office,” Trim notes.

“Having glare control and variable lighting is found to be a strong characteristic of more profitable businesses. Human-centric lighting is a major benefit to the most successful organisations.”

Lighting that responsive to circadian rhythms is the next major trend expected in lighting technology.

3. Personal storage

The survey revealed that personal storage at work is a contentious issue. “Increasingly people are bring more things, and often more expensive things, to the workplace,” says Trim. “Gym gear, tech, and sometimes cycling gear all needs to be stored somewhere throughout the day. Banks of personal lockers are becoming a standard facility in big cities overseas and we expect that trend to catch on South Africa too.”

Trim added that the survey also showed that despite the trend towards hot desking, the majority of people in study (53%) stilled wanted their own desk. “But these days fewer people have their own desks. But giving all employees – whether permanent or mobile – individual storage, as well as providing office storage, will help them maintain a sense of control, belonging and a sense of well being.”

4. Noise and acoustics

Shrieking laughter, loud conversations and traffic are distracting. And being listened to on the phone is annoying.

“Providing quiet working spaces is one of the most important characteristics of companies that consider themselves to be innovative, creative or simply focused,” says Trim. “Quiet work spaces are one of the biggest differentiators between high and low performing companies according to the survey.”

But Trim also notes that is also important for businesses to offer areas where staff can talk openly and discuss ideas. “Having the choice is extremely important.”

5. Air quality

Not only is fresh air the single most successful way in mitigating dips in concentration, but the survey showed it to be one of the most differentiating factors of the most productive and innovative companies. “Good quality ventilation and air movement is therefor a vital characteristic of a healthy office,” says Trim.

6. Staff empowerment

“Companies can make their staff feel empowered in a host of ways and this can have significant outcomes for business,“ Trim notes.

“The act of consulting with staff, and letting them have a say on their environment, is a major differentiator between high and low performing companies. This suggests that consulting with employees on issues of importance will lead to greater profitability.”

Trim cautioned however that employees won’t necessarily choose the factors that are prevalent in profitable companies without guidance and awareness of the implications of different choices. The role of an expert guiding staff choice is therefore essential.

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

South African labour legislation gives employees a plethora of rights against the employer. So much so that many employers wonder whether the resultant burden on them makes it worth continuing to run the business.

For example, employees have, amongst others, the right to:

• Join trade unions
• Go on strike
• Procedural fairness at disciplinary hearings
• A fair reason for dismissal
• Protection form unfair demotions
• Be promoted under certain circumstances
• Minimum wages in many cases
• Sick leave, holiday leave, maternity leave and compassionate leave
• Overtime pay
• Consistent treatment
• Protection from unfair discrimination
• Representation at CCMA by a trade union representative

On the other hand, labour legislation gives employers few rights; and those that they do have are very restricted. That is, employers may exercise limited rights as long as, in doing so, they do not infringe the numerous rights given to employees.

However, one area that employers can exercise their rights is that of fiduciary duty. This means that the employee has, in certain ways, the duty to put the employer’s interests first. This does not mean that the employee must, as a way of benefiting the employer, forfeit his/her rights to leave, legal working hours or fair discipline. It does mean that the employee may not advantage himself/herself unfairly at the expense of the employer.

Specifically, this means that the employee may not:

• Place him/herself in a position where his/her interests conflict with those of the employer
• Make a secret profit at the expense of the employer
• Receive a bribe or commission from a third party
• Misuse the employer’s trade secrets
• Give a third party the employer’s confidential information.

While this principle applies generally to employees it applies more strongly to senior employees. In deciding on the extent of fiduciary duty that an employee has the courts consider a number of factors including:

• The degree of freedom that the employee has to exercise discretion in making and executing business decisions
• The opportunity for the employee to exercise this discretion in his/her own interests
• The extent to which the specific circumstances open the employer to abuse of the employee’s discretion
• The extent to which the employer relies on the employee for expertise and judgement in conducting the business
• The extent to which the employee is in a position of trust.

Clearly, the more junior the employee the less these fiduciary factors are likely to prevail. That is, with some exceptions, junior employees normally do not have the right or duty to make crucial business decisions or the opportunity to misuse decision-making power.

The line between who is a senior employee and who is not and the line between who is in a position of trust and who is not are blurred. Whether, for example, a junior salesperson is in a position of trust or not depends on the specific circumstances of each case. Therefore, in order to protect itself from employees acting against the employer’s interests every employer should:

• Build in checks and balances that prevent the abuse of power
• Inform all employees of their fiduciary duties in relation to their positions of trust
• Make sure employees at all levels know the seriousness of breach of their fiduciary duties
• Take swift, fair and consistent action against employees who breach their fiduciary duties
• Obtain expert legal advice before acting against suspects.

Source: Business Matters 

Employees needed 42 hours each to familiarise themselves with their latest software with nearly three quarters of office workers are using photocopiers and nearly half still using fax machines proves paper-reliant office is far from dead.

According to new research from serviced office specialist Workthere, the average UK worker is wasting 50 hours a year as a result of failing technology in the office, which Workthere estimates could result in an £11 billion loss for UK businesses, based on employment data from the ONS.

In particular, the next generation of office workers, those aged between 16 and 24, struggle most with outdated tech, wasting 62 per cent more time every week on inefficient technology compared to their colleagues that are aged 55 or over.

The survey of UK office workers, commissioned by Workthere and carried out by independent research company CensusWide, also found that it took around 42 working hours for an individual office employee to fully familiarise themselves with each new piece of software, which Workthere estimates equals around £830 worth of a professional employee’s time.

With businesses having introduced an average of four pieces of new software over the past three years, 45 per cent of workers claim that despite their employers’ investment in new technology, they don’t invest enough time into training staff to use it properly.

Cal Lee, founder of Workthere, commented: “With regards to the serviced office market in particular, the first thing we are asked about, after the cost, is what specification of technology will be available for a business to use. The office tech inventory can affect profits as well as play a vital role in the perception of a business, both internally and externally. Gone are the days of just ‘location, location, location’ – in the eyes of office workers, digital connectivity tops the list of innovations that will improve the office working experience in the next few years.”

HTML tutorial
Workthere found that office technology can have a direct impact on employee performance and efficiency, with many employees believing that their company’s investment into its office technology is linked to its investment into staff welfare and how it conducts business. The survey results showed that almost half of respondents said a business with cheap office technology is probably not going to invest in the wellbeing of its staff.

In addition, 24 per cent indicated that they wouldn’t be prepared to do business with companies that do not have the most up-to-date office technology.

While the research shows that the paper-reliant office is far from dead, with 73 per cent of office workers using photocopiers and 42 per cent fax machines, it also shows that 42 per cent of respondents use cloud technology for file sharing and 36 per cent have video conferencing capabilities.

Lee continues: “The digital revolution is clearly taking a firm grip of office spaces. We found that connected technology is by far the number one technology that office workers deem most useful to improve the way they work in the next five years, with voice activated tech and wireless charging pads taking spot two and three respectively.

“Whilst different businesses will have different priorities, office tech that works efficiently and improves productivity without proving a distraction, or making staff anxious about using it, is definitely high on the agenda for both staff and employers. It is therefore increasingly important for businesses to know that their office spaces are able to facilitate a smooth tech experience.”

Source: Business Matters

Increasingly companies are seeing the workplace as a strategic tool for productivity and collaboration by introducing workplace innovations that make offices much more appealing places to work.

Richard Andrews, MD of Inspiration Office, said: “What makes an office environment great is different for every company. But these are six innovations we are seeing in offices around the world and increasingly in South Africa.”

Overlap zones
“A way to encourage spontaneous collaboration among employees is designing space to allow for “overlap zones,” which make it more likely employees will run into each other,” says Andrews.
Research from the University of Michigan showed that when scientists worked in a space where they ran into one another they were more likely to collaborate. The data suggests that creating opportunities for unplanned interactions among employees both inside and outside the organisation actually improves performance.

Samsung built an office that includes large outdoor areas sandwiched between floors that encourages employees to hang out and mingle in shared spaces. Online clothing store Zappos purposefully planned to build a smaller office for their U.S. headquarters to increase the number of probable interactions per hour per acre.

Configurable desks
Said Andrews: “We are seeing greater demand for desks there fit together like puzzle pieces. They can be moved, reworked and reattached as employees see fit. It matches their immediate needs such as working solo for a collaborative project.”

Music rooms
“One way to boost employee productivity at the office is to foster a positive company culture,” Andrews notes.

It’s not prevalent in South Africa yet but overseas music rooms are proving popular, as long they are soundproofed! At LinkedIn’s headquarters in Mountain View, California employees can play in a room that’s stocked with high-end music equipment like drums, guitars, keyboards, AV equipment, microphone stands, and even stage lighting.

The program improves the company’s marketability to potential employees, especially musicians, both as a specific perk and means to demonstrate the company is not like all the others.

A monitor revolution
We could be entering a new age for office monitors in 2018. “The past year has seen many offices upgrade their screens to 32-inch or even bigger screens and the latest models feature almost border-less edges or even a curved display.”
Besides the significant productivity advantages, companies are also beginning to deeply consider how their technology impacts on the look and feel of the workplace.
Monitors and other technology have become more prominent, as more workplaces opt for sit-stand desks, the back of the screen and the cables are more visible. These latest screens create a sleeker, modern look across the workplace, in turn, organisations are also choosing support tools with aesthetic appeal and that hide cables.

A superdesk
Designing an office space around the “open office” concept is one thing. But what about creating a shared desk for your company’s entire staff?
To represent their collaborative approach to work, marketing company the Barbarian Group built a 400 square meter desk that weaves through their office headquarters in New York City, which can sit up to 170 people at once.

“Of course this might note be practical for employees who want to work in a quieter spaces but it does create a fun sense of oneness,” says Andrews.

Plants and greenery
It isn’t too hard to believe that spending time around nature and sunlight and fragrant greenery is good for you. But now, there’s scientific research to back that claim. A 2014 study in Journal of Experimental Psychology by Nieuwenhuis et al showed that adding plants and greenery in an office can help increase employee productivity by 15%.

“Office landscaping helps the workplace become a more enjoyable, comfortable and profitable place to be,” Andrews adds.

For example, Google’s office in Tel Aviv, Israel has an indoor orange grove that turns an otherwise normal, collaborative space into a relaxing area that makes you feel like you’re sitting outside on a park bench.

Social media is part of the modern fabric of interaction, with some reports suggesting that 66% of users spend time checking social media accounts while at work.

Industry tracker Mediakix suggests that popular platforms YouTube and Facebook consume one hour 15 minutes per day.

But when you leave your company, who owns your Twitter, YouTube, Facebook or even Gmail account? Legal experts in SA say the law is not clear.

“This is a grey area, and it would really depend on a thorough investigation of the history, purpose and origin of the social media account in question,” Pamela Stein, head of Employment Law at Webber Wentzel told Fin24.

“In order to demonstrate ownership, the employer would have to show that the social media account was clearly created for the purposes of promoting the growth of the business, and that this growth was achieved by social media activity generated during company time.”

Personal information

She added that factors over the ownership of a social media account would depend on whether the account had been created as part of the employment contract, or for the purpose of growing the organisation’s profile.

Unlike a company cellphone, computer or car, a social media account does not only exist on a mobile device, and the law assigns protections of personal information, as described in the Protection of Personal Information Act, which forbids unwanted sharing and exploitation of personal information.

“You have rights over your identity. However, if there was a clause in the contract of employment saying any personal account created during their employment is the property of the employer – perhaps the employer would have rights to it,” specialist technology attorney Russel Luck told Fin24, though he was careful to agree that the matter is not a settled one under South African law.

“If these accounts were set up so the employee could engage with the public as an extension of his work services, then perhaps the employer would have rights over it. Even more so if the email address used to verify the social media account is a work email, not personal one,” he added.

This reflects a US case in which Phonedog sued former employee Noah Kravitz over marketing on his Twitter account. The company alleged that 17 000 Twitter followers Kravitz had amassed was a customer list and demanded damages of $340 000.

A News24 survey revealed that 53% of social media users accessed the platforms while at while at work, and 3% said they would like to, but were not allowed.

Personal logins demand

Stein said that in SA, an employer seeking to claim a social media account would have to show just cause.

“Firstly, the employer would have to establish a basis for such a claim, and then sue the employee in the appropriate court depending on the cause of action.

“The employer could seek an order prohibiting the employee from any further use of the social media account and requiring the employee to take all reasonable steps to return the social media account to them.

“In addition, all social media sites allow users to report breaches et cetera and once such an order is obtained the social media platform could be notified and requested to assist.”

However, Luck argued that for a local company to demand personal logins to social media accounts would be a contravention of South African law.

“On the other side of the coin, SA law does follow international trends that you don’t need to give your employer your login details to your personal Facebook account – ie it’s unlawful to force an employee to do this.

“Where employers are making employment, promotion, dismissal or labour decisions based on access (or lack of access) to the personal Facebook account of an employee it would amount to unfair discrimination.”

Source: Fin24

Great offices are not merely well decorated and thoughtfully designed, but also have a profound effect on workers’ productivity and their sense of well-being.

Richard Andrews, MD of Inspiration Office says, “It’s one of the main reasons why there’s a trend the world over for companies to make over their boring and old furniture by including stylish, pleasing chairs, couches and desks which is transforming utilitarian, drab spaces.”

Here’s how great office space can enhance productivity in the work place:

Boring furniture will make you lazy – and bored
Being surrounded with boring furniture, individuals oftentimes lose interest in work and lead to a drop in productivity “Even if we don’t think dull workplaces impact productivity they do by creating a subconscious listlessness that is associate with dreary surroundings,” Andrews says.

Vibrant colours bring enthusiasm
Lots of offices are choosing furniture and fittings in bright colours. “Bright colours assist in lifting a person’s mood. It’s a good way to alleviate stress, as well as increase productivity,” says Andrews.

Standing desks making your healthier
Several studies have discovered a link between the amount of time an individual spends sitting and her or his odds of developing diabetes, cancer and cardiovascular diseases.

For example, one 2010 Australian study, discovered that for every additional hour participants spent sitting on a daily basis, their overall threat of dying within the study period (7 years) increased by 11%.

Says Andrews: ”A 2012 study discovered that if the average person in America decreased her or his sitting time to 3 hours a day, life expectancy would increase by 2 years.”

Keep it clean, and orderly
“Cleanliness and order are very important factors for an office that feels good to work in,” noted Andrews. “ A disorganised office deprives workers of the enthusiasm and send a message than sloppiness is OK.”

A clean and orderly office, helps to keep workers comfortable and productive.

Fixed spaces for handy items
A good idea is to always keep things in their place, as well as keeping them handy.

“Often workers put off their work because they need to get up and go to an additional place for finishing the task or wonder around trying to find something like a stapler. Keeping items handy won’t just speed work up, but it also makes you more productive,” says Andrews.

Where possible let the daylight in
“We all know the uncomfortable feeling of being stuck in a windowless room under fluorescent lights during daylight hours,” says Andrews. “Lack of natural light has profoundly negative effect on people’s health and therefor productivity.”

In a study entitled Impact of Workplace Daylight Exposure on Sleep, Physical Activity, and Quality of Life researchers at the Neuroscience program at Northwestern University in Chicago, reported that the detrimental impact of working in a windowless environment is a universal phenomenon.

It concluded that there is a strong relationship between workplace daylight exposure and office workers’ sleep, activity and quality of life.

“Employees who did not have windows reported reduced scores than their counterparts upon life quality measures associated with vitality and physical problems. Also, they had poorer outcomes within measures of overall sleep efficiency, sleep quality, daytime dysfunction, as well as sleep disturbances,” Andrews added.

Furniture installed by Inspiration Office is created in South Africa by AngelShack. It is German designed but locally produced to international standards. All furniture is VOC (Volatile Organic Compounds such as adhesives and dyes) free, made from sustainable material and coated with anti-microbial finishing.

AngelShack is one of the first companies in the world to apply this anti-germ technology.

Dismissal for poor performance

While the law allows employers to decide what the proper standards of performance are, the employer will, if taken to the CCMA, be required to prove the fairness of the dismissal.

Employers must therefore ensure that their performance management systems and practices are designed to enable the employer to prove at arbitration that:

• The employee knew what the required performance standard was;

• The standard was realistically achievable;

• The employee was given sufficient opportunity to achieve the standard; and

• It was the employee’s fault that he/she failed to achieve the standard.

How must the employer’s systems be geared to provide legal proof in these four areas?

Did the employee know what the performance standard was?

The employee’s signed employment contract or performance agreement must spell out that, for example, that he/she is required to make 10 sales per month, reach 2 million rand turnover per year, pack 100 boxes per month or make 3 widgets per hour.

Was the standard achievable?

The employer’s formal records of actual past performance of the employee and others who have done the same work must clearly show that the agreed standard (e.g. 10 sales per month) has regularly been achieved and that therefore the standard is achievable and fair.

In the case of White vs Medpro Pharmaceutica (2000, 10 BALR 1182) the employee failed to meet her targets in nine out of ten months. The CCMA nevertheless found her dismissal to be unfair because the employer had set targets that were not achievable in the CCMA’s view.

Has the employee been given sufficient opportunity to achieve the standard?

The employer’s records relating to the employee’s performance must clearly show that, for example, the employee:

a) Has been given sufficient work to do to provide the necessary practice to become proficient
b) Has the time to get the work done properly.

Was it the employee’s fault that the performance standard was not met?

The employer’s performance monitoring records must show that:

• The employer has consistently provided the employee with the necessary work materials, training and equipment;

• The market demand for employer’s product has not reduced; or

• That there were no other reasons beyond the employee’s control for the employee’s poor work performance.

In Robinson vs Sun Couriers (2003, 1 BALR 97) the CCMA found Robinson’s dismissal to be unfair because the employer had neither established the reason for the poor performance nor brought any proof that the poor performance was the employee’s fault.

Employers must therefore be able to prove that they have:

• Set targets that are provably reasonable;

• Adjusted targets when new circumstances dictate this;

• Given employees a real chance to achieve the desired performance level; and

• Removed all obstructions to the achievement of the standards.

Thus the format of a good performance control system would be as follows:

• Details of the quantity, quality and time frame requirements of each employee;
• Proof that these standards have been achieved regularly;
• The nature of the specific tasks that the employee has been given during each performance period, the number of hours that the employee has been given to perform those tasks;
• The availability to the employee of all resources in good order needed for successful completion of the work; and
• The contact details of a reputable expert in labour law and performance management.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Many employers often find themselves in a predicament when employees resign without adhering to the notice periods stipulated in the contract of employment. In order to address the recourse available to employers, it is important to first look at what legislation prescribes for notice periods.

Notice periods

A reasonable notice period that either party in an employment relationship needs to abide by is derived from common law, however section 37 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) has specifically developed the common law and makes specific provision for notice periods. Depending on the length of service of the employee, notice periods range from one (1) week, two (2) weeks or one (1) month, however it is common for companies to provide for notice periods which differ from the BCEA or any other relevant legislation including collective agreements. This is permitted only if the notice periods are not less than the periods stipulated in the relevant legislation. An employee may not be required to give longer notice than the employer. It is important to note that there are provisions whereby the notice periods are waived and that include matters of a constructive dismissal.

Employer’s remedies

Employees who fail to give notice as per the stipulated notice period are in breach of contract and the employer has specific remedies to compel the employee to adhere to the contractual obligations.

Order for specific performance

The first recourse is for the employer to refer the matter to the High Court to request an order compelling the employee to comply with the conditions of the employment contract (order for specific performance). In terms of section 77A (e) of the BCEA, the court may use its discretion whether or not to grant or deny an order for specific performance in terms of the reasonableness of the matter.

The court indicated in Nationwide Airlines (Pty) Ltd v Roedinger & another [2006] JOL 17221 (W) that the applicant was entitled to enforce the three (3) month notice period against the respondent, as the respondent only gave one (1) month’s notice. The respondent was deemed a professional employee and entered into the employment relationship on his own accord. The respondent was fully aware of the conditions in the contract of employment and that the agreed notice period had not been forced on him. The court furthermore took into consideration the potential operational risk as flights might have to be cancelled due to the airline not having a replacement for the respondent, who was the only pilot qualified to pilot a particular Boeing, which would have resulted in a substantial financial loss for the business.

In contrast, in Santos Professional Football Club (Pty) Ltd v Igesund & another [2002] JOL 10021 (C), the head coach of the professional football team indicated that he would like to resign due to another competitive offer of employment he received. The team referred the matter to the High Court and sought relief in terms of an order for specific performance. They deemed it unfair for the coach to breach the conditions stipulated in the fixed term contract purely because he received a better offer of employment.

The High Court had to take into consideration whether the order would be viable and appropriate. It was found that the coach would not be as committed as he ought to be, should he be compelled to adhere to his contract. The coach’s dignity as well as the employment relationship between the coach and management were taken into consideration. It was found that the working relationship was irreparably broken, therefore a future working relationship would not be viable. In this case the order for specific performance was denied.

Claim for damages

The second remedy for the employer is to terminate the employee’s contract and to sue for damages. Claiming for damages is not as easy as employers might envisage it to be due to employers being required to physically prove that there was harm caused as a result of the employee not serving notice. Employers cannot simply rely on the mere fact that the employee was in breach of the employment contract.

In Rand Water v Stoop & another (2013) 34 ILJ 576 (LAC), the court found that where employees have breached their contract of employment by failing to act in good faith, in relations to section 77(3) of the BCEA, the Court may decide whether or not the employer may claim for damages incurred as a result of the breach of contract.

In Aaron’s Whale Rock Trust v Murray and Roberts Ltd and Another [1992] 3 All SA 390 (C), the court held:

“Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the Court to quantify his damages and to make an appropriate award in his favour. The Court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the Court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.”

Withholding statutory payment

In practice, employers find it frustrating and costly as the financial implication of referring the matter to court equals more than the physical harm caused by the employee not serving notice. Therefore employers have been advised to include a clause in the employment contract to specifically indicate that should an employee fail to serve their full notice period, the employer is entitled to withhold final remuneration until the employee serves such notice. This will compel employees to return to abide by their contractual obligations.

In the two key judgments of Singh v Adam (2006) 27 ILJ 385 (LC) and 3M SA (Pty) Ltd v SA Commercial Catering & Allied Workers Union & Others (2001) 22 ILJ 1092 (LAC) it was specifically held that the employment contract is a reciprocal contract to which these provisions apply. The employer can therefore refuse to pay out any final payments until the employee has rendered proper performance.

Conclusion
It is evident that employers have various remedies in place regarding employees who are in breach of contract in terms of serving their notice period as per the employment contract. The remedies of applying for an order of performance and claiming for damages will result in costs incurred and may not necessarily be successful. Employers are therefore advised to include a clause in their employment contract whereby the employer may withhold the amount equal to the required notice from the employee’s final statutory payments until the employee serves notice as agreed in the contract of employment.

Source: LabourNet

How the gig economy could shake up employment law

The gig economy has taken over the world, with most people not fully realising its impact. Put simply, the gig economy is a labour market characterised by freelance, flexible, on-demand work rather than the more traditional nine-to-five working model. Instead of being paid a regular salary, workers are paid for each “gig” they do, such as a car journey, food delivery or a cleaning job.

Typically, workers in the gig economy find jobs by registering on websites or apps and signing up for what they want to do. Around 15.6% of the UK’s workforce make up the gig economy. The figure is 34% in the US and expected to rise to 43% by the year 2020. South Africa will, no doubt, follow suit.

The major difference between the gig economy and traditional freelancing or contractual work is the flexibility and transparency that go with it. Gig freelancers can work from wherever they like, whenever they like and for whomever they like.

Timing of jobs is more spontaneous, and apps and websites now automatically connect people to deliver on requirements in real-time.

The major difference between the gig economy and traditional freelancing or contractual work is the flexibility and transparency that go with itBut how many of these gig workers prefer the work to permanent employment, and how many simply cannot find better pay or jobs elsewhere? With South Africa still recovering from recession and an unemployment rate of 27.7%, there’s no doubt that a lot of these “gigs” are performed because there is nothing better out there.

While some may argue that the gig economy empowers entrepreneurs, others argue that it is purely another means of exploiting workers. In most countries, only employees are entitled to the protection of employment legislation, such as being protected from unfair dismissal, and receiving minimum basic benefits such as holiday pay, sick leave and minimum working hours. Independent contractors are not offered such protection and their recourse is limited to what is contained in their service contracts.

UK test case
Last year in the UK, an employment tribunal ruled that Uber drivers are “workers”, and not self-employed contractors as their contracts stipulated. Uber has always maintained that it does not employ any drivers or own any cars. Instead, it provides the technology platform that enables the connection between driver and passenger. In the court case, judges held that the drivers are workers and should be given a basic set of rights under the law, including a national minimum wage. Uber appealed against this ruling, which was heard in September. A ruling is yet to be handed down.

In South Africa recently, the Commission for Conciliation, Mediation and Arbitration (CCMA) issued a ruling that seven Uber drivers who had been “deactivated” from the Uber platform and had subsequently referred unfair dismissal claims to the CCMA were not independent contractors but must be considered employees. This means these drivers are given employee protection in terms of the Labour Relations Act and the Basic Conditions of Employment Act. Uber South Africa has appealed the ruling and is currently awaiting judgment.

British prime minister Theresa MayWith the new world of work and the rise of the gig economy, the line between who is an employee and who is not is becoming increasingly blurred. But will this change how our courts view these types of workers in the future?

Seeming to shed light on this topic in the UK, the Taylor Review of Modern Working Practices was released in July this year with the hope of addressing the widespread deprivation of employment rights in the gig economy. Prime minister Theresa May had requested Matthew Taylor, chief executive of the Royal Society for the Arts, to conduct an independent review into how employment practices in the UK need to change to keep pace with modern business models.

Interestingly, the Taylor Review suggests that the UK government create a new category of worker, the “dependent contractor”, that sits between contractors and those in full employment, and brings with it some benefits and wage protections. It also called for the employment status to have a clearer definition that better reflects the reality of modern working arrangements.

Recommendations
Here are some of the review’s recommendations to the UK government in relation to gig workers:
It should develop legislation and guidance that adequately set out the tests that need to be met to establish employee or “dependent contractor” status.The national minimum wage legislation should be updated so that “dependent contractors” receive at least the national minimum wage, but on a piece-rate basis.

Under these rules, a gig company would have to demonstrate through its data that at times of normal demand, an average person could earn 20% more than the national minimum wage. However, if that person chose to work at a time of low demand, he or she might not earn the minimum wage; the company would have to use its real-time data to warn them of this in advance.

Government should provide maximum clarity on status and rights for all individuals, by extending the right to written particulars to all in employment. At the moment, employers only need to provide a written statement to employees that outlines their employment terms and conditions from the first day of employment. Workers are not entitled to such a statement.

The Taylor Review received a mixed response in the UK. While some have welcomed some of the proposals and agree that current legislation is no longer fit for purpose and needs updating, others have concerns that some of the proposals will materially increase costs and administration for employers.

The UK government will engage with stakeholders across the country before publishing a full response to the review later this year.

Although there are no immediate plans to revise the legislation to accommodate the gig economy, only time will tell as to whether or not a similar approach will be considered in South Africa.

By Amanda Arumugam for Tech Central

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