Tag: dismissal

Source: MyBroadband

Here are 10 steps before considering dismissing an employee for refusing to take the Covid-19 vaccine:

1. Perform a Covid-19 risk assessment

This will determine whether a mandatory vaccination policy is necessary and to identify employees who work in situations where:

  • The risk of transmission is high due to the nature of their work.
  • The risk for severe Covid-19 or death is high due to an employee’s age or comorbidities.

2. Develop a vaccination plan or adjust your existing Covid-19 plan

3. Educate employees about vaccines and provide them with more information

Relevant information can be found in the vaccine FAQ section of the NICD’s website .

4. Assist employees with registering for vaccination on the EVDS portal

Registering on the health department’s Electronic Vaccination Database System (EVDS) allow South Africans to book a time and select the vaccination site where they would like to receive their vaccine.

5. Give employees paid time off to be vaccinated

If you implement a mandatory vaccination policy, you may not withhold pay or force employees to take leave without pay.

6. Place employees who suffer from vaccine side effects on paid leave

Employees who suffer from side effects after taking the vaccine should be given sick leave. If their sick leave is exhausted, they may qualify for further paid time off.

7. Keep employees informed on vaccination issues

This includes notifying them about:

  • The obligation to be vaccinated and by what date.
  • The right to refuse to be vaccinated on constitutional or medical grounds.
  • The opportunity to consult with a health and safety representative, worker representative or trade union official.

8. Counsel employees who refuse to be vaccinated on any constitutional grounds

Talk to employees and allow them to seek guidance from a health and safety representative if requested. Refer the employee for further medical evaluation if they refuse to be vaccinated based on a medical condition.

9. Explore alternative arrangements

Dismissal should only be a last resort. The employer should attempt to accommodate the employee in a position where they do not require the vaccine.

Possible options to consider include letting the employee:

  • Work off-site
  • Work from home
  • Work in isolation (at the workplace)
  • Work outside normal working hours
  • Work while wearing an N95 mask

10. Follow the correct procedure for dismissals

If all other options have been exhausted, Truter advised against disciplinary action. Instead, he said to deal with the dismissal as one of “operational requirements” or “incapacity”.

By Loyiso Sidimba for IOL

The Labour Court has ordered the dismissal of an employee who refused to self-isolate and continued working despite testing positive for Covid-19.

Labour Court Judge Edwin Tlhotlhalemaje overturned the Commission for Conciliation, Mediation and Arbitration’s (CCMA) decision to hand Eskort assistant butchery manager Stuurman Mogotsi a final written warning.

Mogotsi was found guilty in the internal disciplinary process and fired in September last year.

However, after referring an unfair dismissed case at the CCMA he was handed a final written warning and reinstated.

Eskort approached the Labour Court to challenges the CCMA ruling.

The CCMA had found that Eskort’s disciplinary code and procedure called for a final written warning in such cases and failed to justify the sanction of dismissal and ruled that Mogotsi must be reinstated retrospectively, without back-pay and given a final written warning.

On March 18, Judge Tlhotlhalemaje reviewed and set aside the CCMA award and substituted the ruling with an order that Mogotsi’s dismissal was substantively fair.

Mogotsi had been found guilty of gross negligence in that after receiving his Covid-19 test results, which were positive, he had failed to self-isolate, continued working for three days and put the lives of his colleagues at risk.

In the three days he continued working after testing positive for Covid-19 he failed to follow workplace health and safety protocols and to adhere to social distancing and personally came to work to hand in a copy of his results.

Judge Tlhotlhalemaje described Mogotsi’s actions of not informing his employer about his results, hugging fellow employees, walking around his workplace without a mask as extremely irresponsible in the context of the Covid-19 pandemic, and therefore grossly negligent.

“For reasons which are clearly incomprehensible, Mogotsi had through his care-free conduct, placed everyone he had been in contact with whether at the workplace or at his residence at great risks,” reads Judge Tlhotlhalemaje’s ruling, for which he delivered reasons on March 28.

In his defence, Mogotsi claimed he did not know that he needed to self-isolate, despite being a member of the in-house Coronavirus site committee.

After testing positive Mogotsi was found hugging a fellow employee who had undergone a heart operation five years earlier and had recently experienced post-surgery complications.

”In the midst of all the monumental harm he had caused, and which was clearly foreseen, Mogotsi could only come up with the now often used defence that he was victimised. At no point did he show any form of contrition for his conduct,” Judge Tlhotlhalemaje found, adding that Mogotsi was not only grossly negligent and reckless, but also dishonest.

The judge described the facts of the case as “indeed extraordinary”.

 

Beware dismissals based on spite

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Feelings of spite arise at work for a great variety of reasons such as:

  • Power struggles between managers
  • Employees competing for advancement
  • Racial and other prejudices
  • Scapegoating
  • Managers feeling threatened by other managers or senior staff
  • Sexual affairs
  • Favouritism and victimisation
  • Nepotism
  • The development of factions

Feelings of spite occur across the spectrum of all types of employers. While these smouldering conflicts affect all levels of employees, they tend to become much more intense and damaging in the senior levels of the organisation.

For example, in the case of Joseph vs Standard Bank of SA (2001, 8 BALR 868) Joseph was dismissed for failing to be present when money was being prepared for collection. The CCMA arbitrator found that, in the specific circumstance, it was unreasonable to have expected Joseph to be present at the preparation of the cash. This was because she was required to carry out a number of other duties at the time of the cash preparation. The CCMA also found that the dismissal had been implemented out of spite due to a personal clash between Joseph and her superior. As a result the employer was ordered to pay the employee 12 months’ remuneration in compensation.

In cases of dismissal due to spite employers might lose not only financially due to CCMA awards. A more serious consequence can be negative publicity. Also, the fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation.

It is therefore crucial that the employer:

  • Identifies personal hostilities early
  • Accepts that it needs to be dealt with urgently
  • Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in an orderly, fair, pragmatic and legal way.

The higher up the organisation ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal.

However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.

Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached the law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration. And this is becoming a more and more common occurrence.

On the other hand, we have also been able to help employers to avoid having to pay such crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.

Workplace politics are here to stay but employers and employees can, by acting timeously and sensibly, prevent them from causing irreparable harm.

By Phumi Ramalepe for Business Insider SA

Discovery Health has dismissed 10 employees for being part of a private WhatsApp group that apparently aimed to get its Cape Town offices closed.

The 10 young call centre employees apparently asked to be allowed to work from home around the beginning of lockdown. Three of them said they contracted Covid-19.

Their lawyer says their privacy was violated. Discovery says the evidence it obtained through a whistleblower is grounds for dismissal.

Discovery Health fired 10 call centre employees during lockdown for being part of a WhatsApp group that, apparently, sought to “shut down” local Cape Town offices in March, for fear of the coronavirus.

Now the employees want compensation, and their jobs back, but Discovery says it had solid grounds to dismiss them – even though the chat group was private.

According to Discovery, another employee, who had been an active participant of the group, provided information about posts in the group. The company characterises the conversations as bringing it into disrepute, while, it says, the employees failed to raise their concerns internally.

“Ten employees were plotting to sabotage Discovery Health, including plans to involve external third parties to bring the company into disrepute,” said Ryan Noach, the CEO of Discovery Health.

“The motive appeared to be an attempt to achieve the closure of the local Discovery Health offices, in order not to have to work during the period.”

Although the group chat was private, Discovery insists that the employees were “acting subversively”, based on evidence from the whistleblower.

After investigations were conducted, the employees were dismissed in July.

The employees’ pro bono lawyer, Nkosinathi Malgas, said the employees were dismissed unfairly, and only created the WhatsApp group to support each other after Discovery Health refused to let all of them work from home while three of them contracted Covid-19.

“The contents of the WhatsApp group were them talking about their safety in the workplace, and they were supporting one another in terms of the emotional trauma that they were going through,” said Malgas.

Malgas argues that the employees’ right to privacy was also violated, since information that was meant to be private was used against them.

“Constitutional rights of citizens override any social [media] policy. This information was processed from their personal cellphones and these individuals have got a right to privacy.

“Their information is protected in terms of the Protection of Personal Information Act, and therefore anyone who wants to get into your personal information must do so with your consent as well as a court order,” said Malgas.

It would have been a different story had the employees used Discovery’s tools of trade, according to Malgas, rather than their own cellphones and a chat platform unconnected to the company.

Noach, however, insisted no one’s rights were infringed throughout investigations.

“It should also be entirely clear, that all device information utilised in this disciplinary investigation was submitted voluntarily and without coercion, by a whistleblower who made their personal device available.

“There was certainly no infringement of any personal confidential device information whatsoever,” Noach said.

An arbitration that wasn’t
Discovery and the employees had been due to appear before the Commission for Conciliation, Mediation and Arbitration (CCMA) on Monday, but Discovery did not show up, according to Malgas.

A clause in the employees’ contracts stipulates that any dispute related to labour matters, dismissals or termination of employment will be referred to a private arbitration, Malgas said, which means they will have to pay a potion of the cost of such private arbitration.

Discovery tells a different story, however. It had applied for the CCMA matter to be heard virtually, the company said.

“The Commissioner tasked to deal with the matter was unfortunately unavailable and the file was handed to another. It was unfortunate that technical issues were experienced on the side of the CCMA and we could not engage further,” Noach said.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

The Labour Relations Act (LRA) provides that “Any person determining whether a dismissal for poor work performance is unfair should consider –

(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably have been expected to be aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.”

Items 8(2) and 8(3) of the above-mentioned code provide that:

“(2) …… an employee should not be dismissed for unsatisfactory performance unless the employer has-

(a) given the employee appropriate evaluation, instruction, guidance, training or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal to remedy the matter.”

These guidelines make it clear that the employer does have the right to dismiss poor performers. However, this can only be acceptable if the employer can prove factually that it has, prior to the dismissal, complied with all the substantive and procedural requirements of the law. That is, the onus at the CCMA falls entirely on the employer to bring solid proof:

• that it followed the procedural guidelines quoted above; and also
• that, regardless of the procedure followed, the dismissal decision itself was appropriate under the circumstances.

Employers often lose poor performance cases at the CCMA because they are unable to prove that the employee failed to perform or because the dismissal process was unfair. For example, in the case of Nationwide Airlines (Pty) Ltd vs Mudau & others (2003, 3 BLLR 279) the employer dismissed Mudau after he failed a flight simulator test. However, at the disciplinary hearing the employee was neither given the right to union representation nor was he given a copy of the results of the test that he failed. In its defence, the employer contended that the employee was in a senior position. Despite this the Court upheld the CCMA’s decision that the dismissal was unfair, stating that the employee’s seniority did not deprive him of the right to fair procedure.

However, one employer came off second best at CCMA merely because the charges put to the employee were badly formulated. In Fourie vs Capitec Bank (2005, 3 BALR 314) the CCMA found that it was unfair for the employer to have charged the employee with poor performance as well as for failing to obey the employer’s instruction as these two charges were laid for one and the same incident. It appears that the employee, as a result of failing to follow the employer’s instruction, did not perform the work properly. The CCMA also found that the employer had unfairly taken into account a previous final warning for poor performance. This CCMA finding most surprising as well as frightening because:

• The CCMA viewed the bringing of the two charges as an unfair duplication of charges. In my view, as the one charge flowed form the other, the employee was in fact guilty of both charges, and bringing both allegations resulted in a comprehensive complaint that was both factually correct and justified.

• Poor performance was part of the complaint. Therefore, the taking into account of the previous warning for poor performance was fair and proper.

This CCMA award leaves employers very unsure as to what they are and are not allowed to charge an employee with. It may be that the CCMA commissioner expected the employer to charge the employee only with poor performance and then to use the employee’s failure to follow the employer’s instruction as an aggravating circumstance rather than as part of the charge itself. However, the Labour Relations Act (LRA) does not require this. Common sense dictates that the labels given to the charges should be much less important than what the employee did or failed to do in the incident in question.

However, while decisions such as that in the Capitec case are still being made, employers need to err on the side of caution. That is, employers need to ensure that their managers undergo intensive and ongoing training by a legal expert not only in enforcement of performance standards and fair procedure but also in how to formulate charges relating to poor performance. Alternatively, if such training does not take place, then the employer should take no steps towards employee discipline or performance correction without first consulting a labour law expert.

Dismissals require relevant evidence

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

Even if an employee has committed murder, dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove guilt.

Providing convincing proof of guilt is a factual and skilful exercise requiring:

  • Testimony that is not contradictory;
  • Evidence that, after having been challenged by the accused employee, still holds water;
  • Documents that are validated and that clearly show up the employee’s misconduct;
  • Evidence that is corroborated by other evidence;
  • Testimony from credible witnesses;
  • Evidence derived from thorough and honest investigation; and
  • Evidence that makes the truth look like the truth.

Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.

However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.

For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.

At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence.

Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.

It is not always easy for the presiding officer to decide if evidence is relevant or not because:

• the presiding officer may nor be properly trained to be able to understand what is and is not relevant.

• of lack of clarity of the evidence itself.
• the evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.

It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Employers are entitled to use confessions as evidence in disciplinary hearings.

However, just because an employee makes a confession this does not allow the employer to fire the employee on the spot.

This is because:

• Even where the employee does confess s/he is still entitled to a proper hearing

• The confession may have been coerced

• The employee may not have understood what he was doing when he/she signed the confession

• The act to which the employee confessed may not amount to misconduct serious enough infringement to merit dismissal.

• The CCMA might find, for technical reasons, that the confession was invalid.

We need to look at each of these factors more closely:

Even where the employee does confess he/she is still entitled to proper procedure

The Labour Relations Act (LRA) gives employees the unassailable right to a hearing and not even a confession of murder will allow the employer to deviate from this principle.

Even where the employee properly confesses to an act of misconduct it may not be a serious enough infringement to merit dismissal

Dismissal would be unfair where the employee admits to having arrived half an hour late for work especially if this is a first or second offence because dismissal must be reserved for repeated offences or for gross misconduct.

The CCMA might find, for technical reasons, that the confession was invalid

For example, in the case of FAWU obo Sotyato vs JH Group Retail Trust (2001, 8, BALR 864) the employee signed a confession that he had stolen two bottles of beer. However, the CCMA ruled out this confession on the grounds that it had not been sworn before a commissioner of oaths.

The confession may not have been made willingly

If the confession was made under duress it will not qualify as a confession at all. At best it will constitute a meaningless statement coerced out of the employee; and at worst it will act as proof that the employer was seeking a scapegoat or was trying to concoct a false case against the employee as a means of getting rid of him/her for unacceptable reasons.

The employee may not have understood what he was doing when s/he signed the confession

The employee may be asked to sign a confession document but may, for example, think he/she is signing acknowledgement of receipt of a notice of a disciplinary hearing. Should this be proven the confession will become invalid.

Confessions that are properly made and wisely used can be valuable at disciplinary hearings. The challenge for the employer is therefore to obtain the expertise necessary to ensure that once a confession is made that it sticks and is appropriately used.

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

One would think that if an employee is found to be under the influence of alcohol at work it is a straightforward dismissible offence. Recent case law has shown that this is not necessarily so.

Employers often operate under the mistaken belief that testing positive for alcohol equates to the employee being under the influence of alcohol.
Alcohol and drug abuse is a form of misconduct. Schedule 8 of the Code of Good Practice of the Labour Relations Act, No 66 of 1995 (LRA) recognises misconduct by an employee as a fair reason for dismissal. My neighbough ended up looking for professional help within Virginia Center for Addiction Medicine’s opioid detox program, so I know that this can be an issue.

There are two scenarios in which an employee may be charged for their use of alcohol at the workplace:

The first scenario is where the employee’s drunkenness can be proven by sight, smell and/or the conduct of the
employee. Factors showing drunkenness include aggressive behaviour from the employee, slurred speech and bloodshot eyes. The degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work. The onus is on the employer to prove this. No expert witness is required for such purposes.

The second scenario is where an employee tests positive for alcohol on a breathalyser apparatus. A positive outcome does not necessarily prove that the employee is under the influence of alcohol or that the employee’s ability to work has been impaired. Employers often mistakenly believe that a positive test result is sufficient proof to show that the employee was under the influence of alcohol and then mistakenly charge the employee for being under the influence of alcohol. Recent case law has confirmed that a positive test result is not necessarily sufficient to dismiss an employee. In Tosca Labs v CCMA 2012 33 ILJ 1738 (LC) the Labour Court found that a positive test result on a breathalyser test is not sufficient proof to indicate that the employee was under the influence of alcohol. The court referred to Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC) which stated that the real test is whether the employee’s competence to perform their work has been impaired. In this case the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.

What should an employer do?

• The employer should adopt a zero tolerance in terms of its alcohol policy in the workplace. Such policy should be specific and also provide for a summary dismissal, even when the employee has just been tested positive for the use of alcohol or drugs. The rational for such policy should be based on the safety considerations of the employer. This means that an employee may be summarily dismissed irrespective of whether his/her ability to work is impaired or not. To adopt such a policy depends on the status thereof and may sometimes simply require consulting with the employees before the implementation of such policy. According to the employment law the employer should always ensure that all employees are aware that there is a zero tolerance policy and that if they test positive for any usage of alcohol, they will be in breach of the policy and may be subjected to disciplinary action and possible dismissal.

• In addition to the above, the breathalyser apparatus should be properly calibrated and the person administering the test should be trained to do so correctly. The test should also always be done in the presence of a witness.

• However where possible and applicable, evidence should preferably be obtained to show that the employee’s ability to work was impaired – if that was indeed the case.

• If it emerges that an employee is dependent on alcohol the employer has an obligation to consider providing counselling and assist the employee as is set out in item 10 of Schedule 8 of the LRA.

The Labour Court has found that the dismissal of four of the eight journalists fired by the SABC to be unlawful.

The court ordered that the journalists be allowed to return to work.

The SABC was also interdicted from continuing with the disciplinary action against them.

Trade union Solidarity, acting on behalf of four of the eight journalists — Foeta Krige, Suna Venter, Jacques Steenkamp and Krivani Pillay — lodged an application in the Labour Court in a bid to have dismissals overturned.

Eight journalists were suspended for questioning an editorial decision taken to ban the footage of violent protests where public property was being burnt. Following this seven of the eight were fired.

By Genevieve Quintal for BDLive

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