Tag: employers

By Paige dos Santos, digital lead at SAP Africa

What would you do if you didn’t need the money? It’s not a question we often give much serious thought to, but it may very well be one that we need to answer in the next few decades. The advent of the internet was expected to result in widespread economic democratisation; instead, it has resulted in increased polarisation of wealth – creating a small number of uber rich. According to the World Economic Forum’s Global Risks Report for 2017, between 2009 and 2012 the income of the top 1% in the US grew by 31% , compared with less than 0.5% for the remaining 99%.

This trend is likely to become exacerbated as digital concentration continues unchecked. This level of polarisation cannot sustain itself in the long term and could result in social upheaval. The shifting role of organisations in this new paradigm requires many traditional organisations to fundamentally rethink their reason for being and their approach to their employee value propositions, both now and into the future.

Seismic societal shifts

Murmurings of public policy response can already be seen internationally. Over the last few weeks, the United Kingdom announced the introduction of Digital Services Tax, a 2% revenue charge on “specific digital business models,” predominantly targeting tech giants such as Google, Amazon and Facebook. However, the situation we find ourselves in might well require action that is a little more radical. Yanis Varoufakis, Greek economist, academic and politician, posits that a new approach is in fact imperative to the stability of civilisation. Enter the Universal Basic Income. Call it an obligation-free dividend if you will. Universal Basic Income is a fixed income bestowed upon each citizen of a country every month – regardless of income, resources or employment status. The World Economic Forum 2018 featured several discussions exploring the concept.

Would such an approach result in sloth-like existences for us all? Will we become the embodiment of the “idle-hands” saying? Perhaps not. Several studies are currently investigating the impact of universal basic income, two of which are underway on the African continent. Studies in Uganda showed that recipients of a basic income worked an average of 17% more hours per day, increased business assets by 57% and reported a reduction in spending on vices such as alcohol and cigarettes. The reason? For the first time, people had hope.

Concurrently to digital economic concentration, our global population is burgeoning rapidly, heading towards what Charles C. Mann points out is biological ‘outbreak’ status. Our beautiful planet has finite resources. If we continue to take these for granted by pursuing linear, consumption-driven economic development approaches, we will only see an acceleration of the difficulties we are starting to face globally: choking pollution, food shortages, extreme weather and more. We urgently need to find ways to preserve our world for years to come by redesigning our processes and economies to conserve and optimise, rather than consume and monopolise.

The UN Sustainable Development Goals provide highly visible targets around this. These problems are too big for governments alone to solve. Public private partnerships, and responsible corporate citizens, are essential to making this a reality. This is something that SAP is taking very seriously, contributing to the adoption of technology to help the world run better and improve people’s lives. Purpose needs to be something indistinguishable from our core business. It should define what we do and why we do it, contributing to a beautiful world for generations to come.

Systemic purpose

Let’s revisit the opening question. In light of our changing society, if you had enough money to cover your basic expenses, what kind of an organisation would you want to work for? One that chased profits above all else, or one that really had a higher purpose? A study undertaken by BetterUp found that workers would be willing to forego 23% of their entire future lifetime earnings in order to have a job that was always meaningful.

Engaging your total workforce around organisational purpose can be hugely beneficial, creating significant opportunity for organic and innovation driven growth. However, this is easier said than done. As organisations metamorphose to perform in the digital age, talent models are changing. The skillsets required are in a constant state of flux, and the gig-economy is booming in response to this. According to Deloitte Human Capital Trends Report 2018, more than 40% of workers in the US are now engaged in alternative work arrangements – contracting or gig working.

With such high percentages of an organisation’s human talent involved in external work arrangements, it’s essential to ensure that they are engaged and contributing to the organisations purpose too. Technology tools are available to assist customers in achieving this level of integrated engagement by approaching workforce management holistically. The SAP SuccessFactors and Fieldglass solutions integrate powerfully to ensure that both your internal and external workforce are striving towards a shared sense of purpose, and that individuals can see the impact of their efforts. At the same time, the solution suite manages the ever-present external workforce risks from a legal, security and privacy perspective.

Interlock – combining intuition and logic

When you are working for a purpose you truly believe in, you want to be able to add as much value as possible to that purpose every day. But as humans, we are fallible creatures. We often believe we are being logical and pragmatic, when the reality is that, according to research performed by Daniel Kahneman and his associates, we are primarily using our automatic intuitive responses rather than our logic-based ones. This is where intelligent systems are providing us with remarkable tools that ensure we get the right insights, at the right time, to equip us to make the best logical decisions for our organisations and minimise heuristic bias.

Consider the recruitment process. SAP SuccessFactors uses in-built machine learning analysis to ensure that job specifications created by managers are worded to equally attract male and female candidates, directly impacting gender diversity in the workplace. If the description contains too many masculine-oriented words, the system will automatically suggest replacing certain words and provide appropriate synonyms. This results in a gender-balanced job specification.

When embarking on new projects, SAP Fieldglass Live Insights enables organisations to identify the best geographic locations for the project, based on critical success factors. The solution scans SAP Fieldglass data on contract workers countrywide to recommend the best location based on resource skill level, availability and cost. Tools such as these enable our employees and organisations to perform at optimal levels, making the best possible decisions for their organisations and in turn, achieving their purpose.

The potential to thrive

If you didn’t have to work, would you choose to spend 18 hours a day at the office, sacrificing your family life and mental and physical wellness? And if by chance you did, would you be performing optimally? In the digital world, human creativity, curiosity and resilience are essential to personal and organisational performance, to achieving the purpose the organisation is driving towards. These characteristics are most evident when employees thrive, which is why special attention needs to be paid to the link between wellness and performance at work.

SAP, in collaboration with Ariana Huffington’s Thrive Global, has developed a solution that brings these together: SAP Worklife. SAP Worklife combines data on critical health indicators such as sleep, exercise, diet and mental health, with performance, development and employee satisfaction. The insight it provides enables HR professionals and managers to nurture talent to become the best they can be, in every aspect of life. Imagine the impact of unlocking curiosity and creativity across your organisation, and the energy of working with a team who are truly fulfilling their potential, not just as workers, but as human beings.

Universal basic income is just one of many possibilities that may unfold as we journey into exciting new frontiers as a human race. As our natural resources come under increased pressure and our societies start to shift, we need to pay careful attention to the change. Are we stubbornly focused on the immediate time horizon, ignoring the emerging reality of the next five years in order to fight fires for the next six to twelve months? Or are we thinking further ahead?

It’s time to be honest when you answer the question – would your employees still work for you if they didn’t need the money?

Source: Supermarket & Retailer

The National Minimum Wage Act (NMWA) provides for, amongst others, a national minimum wage; the establishment of a National Minimum Wage Commission; a review and annual adjustment of the national minimum wage; and the provision of an exemption from paying the national minimum wage.

Who does the NMWA apply to?

The NMWA applies to all workers and their employers, except members of the South African National Defence Force, the National Intelligence Agency, the South African Secret Service; and volunteers who perform work for another person without remuneration. It applies to any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind.

What is the national minimum wage?

The national minimum wage is R20 for each ordinary hour worked. There are, however, certain exceptions to the national minimum wage amount of R20 per hour.

Farm workers are entitled to a minimum wage of R18 per hour. A ‘farm worker’ means a worker who is employed mainly or wholly in connection with farming or forestry activities, and includes a domestic worker employed in a home on a farm or forestry environment and a security guard on a farm or other agricultural premises, excluding a security guard employed in the private security industry.

Domestic workers are entitled to a minimum wage of R15 per hour. A ‘domestic worker’ means a worker who performs domestic work in a private household and who received, or is entitled to receive, a wage and includes: a gardener; a person employed by a household as a driver of a motor vehicle; a person who takes care of children, the aged, the sick, the frail or the disabled; and domestic workers employed or supplied by employment services.

Workers employment on an expanded public works programme are entitled to a minimum wage of R11 per hour from a date that will be determined by the President in the Government Gazette. Expanded public works programme means a programme to provide public or community services through a labour-intensive programme determined by the Minister. And funded from public resources.

Workers who have concluded learnership agreements contemplated in section 17 of the Skills Development Act 97 of 1998 are entitled to the allowances contained in Schedule 2 of the NMWA.

Employer’s should note that, within 18 months of the commencement of the NMWA, being 1 January 2019, the National Minimum Wage Commission, will review the national minimum wage of farm workers and domestic workers, and within two years, determine an adjustment of the applicable national minimum wage. The national minimum wage in respect of workers in the expanded public works programme will be increased proportionately to any adjustment of the national minimum wage.

How is the national minimum wage calculated?

The calculation of the national minimum wage is the amount payable in money for ordinary hours of work. It excludes:

  • any payment made to enable a worker to work including any transport, equipment, tool, food or accommodation allowance, unless specified otherwise in a sectoral determination;
  • any payment in kind including board or accommodation, unless specified otherwise in a sectoral determination;
  • gratuities including bonuses, tips or gifts; and
  • any other prescribed category of payment.

‘Ordinary hours of work’ means the hours of work permitted in terms of section 9 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) (currently 45 hours per week) or in terms of any agreement in terms of section 11 or 12 of the BCEA. worker is entitled to receive the national minimum wage for the number of hours that the worker works on any day. An employee or worker who works for less than four hours on any day must be paid for four hours on that day.

This is applicable to employees or workers who earn less than the earnings threshold set by the Minister over time, presently being R205,433.30. If the worker is paid on a basis other than the number of hours worked, the worker may not be paid less than the national minimum wage for the ordinary hours of work.

Any deduction made from the remuneration of a worker must be in accordance with section 34 of the BCEA, provided that the deduction made in terms of section 34(1)(a) of the BCEA does not exceed one quarter of a worker’s remuneration.

Does a worker have a right to the national minimum wage?

Every worker will be entitled to payment of a wage not less than the national minimum wage. Employers will be obligated to pay workers this wage. The payment of the national minimum wage cannot be waived and overrides any contrary provision in a contract, collective agreement, sectoral determination or law.

Must a worker’s contract of employment be amended in light of the NMWA?

The national minimum wage must constitute a term of the worker’s contract, unless the contract, collective agreement or law provides for a more favourable wage. Employers should thus, where applicable, amend their contracts of employment to make reference to the national minimum wage. An employer should note further that a unilateral change of wages, hours of work or other conditions of employment in connection with the implementation of the national minimum wage will be regarded as an unfair labour practice.

When does the provisions of the NMWA come into effect?

The NMWA will came into operation on 1 January 2019. Section 4(6) of the NMWA, which prohibits the payment of the national minimum wage being waived and further provides that the national minimum wage takes precedence over any contrary provision in any contract, collective agreement, sectoral determination or law, operates with retrospective effect from 1 May 2017.

Can an employer be exempt from paying the national minimum wage?

An employer or employer’s organisation registered in terms of section 96 of the Labour Relations Act 66 of 1995 (LRA), or any other law, acting on behalf of a member, may apply for exemption from paying the national minimum wage. The exemption may not be granted for longer than one year and must specify the wage that the employer is required to pay workers. The exemption process provided for in the regulations to the NMWA must be complied with when doing so.

An employer or a registered employer’s organisation may assist its members to apply to the delegated authority, for an exemption from paying the national minimum wage.

The application must be lodged on the National Minimum Wage Exemption System.

An exemption may only be granted if the delegated authority is satisfied that the employer cannot afford to pay the minimum wage, and every representative trade union has been meaningfully consulted or if there is no such trade union, the affected workers have been meaningfully consulted. The consultation process requires the employer to provide the other parties with a copy of the exemption application to be lodged on the online system.

The determination of whether an employer can afford to pay the minimum wage must be in accordance with the Commercial, Household, or Non-Profit Organisations Financial Decision Process outlined in Schedule 1 of the Regulations to the NMWA.

The delegated authority may grant an exemption from paying the national minimum wage only from the date of the application for the exemption. The exemption must specify the period for which it is granted, which may not be more than 12 months.

The delegated authority must specify the wage that the employer is required to pay workers, which may not be less than 90% of the national minimum wage.

The delegated authority may grant an exemption on any condition that advances the purposes of the NMWA.

An employer exempted from paying the national minimum wage must display a copy of the exemption notice conspicuously at the workplace where it can be read by all employees to whom the exemption applies. Further, a copy of the exemption notice must be given to the representative trade union, every worker who requests a copy, and the bargaining council.

Any affected person may apply to the delegated authority for the withdrawal of an exemption notice by lodging an application on the online system in the prescribed format. Before the delegated authority makes the decision to withdraw an exemption notice, the delegated authority must also be satisfied that the employer has been consulted, and the representative trade union or affected workers have been given access to the application lodged.

If an exemption notice is withdrawn, the delegated authority must issue a notice of withdrawal on the Exemption System.

What is the role and responsibility of the National Minimum Wage Commission?

A National Minimum Wage Commission is established by the NMWA. The Commission must review the national minimum wage annually and make recommendations to the Minister on any adjustment of the national minimum wage. The recommendations must consider: inflation, the cost of living and the need to retain the value of the minimum wage; wage levels and collective bargaining outcomes; gross domestic product; productivity; ability of employers to carry on their businesses successfully; the operation of small, medium or micro-enterprises and new enterprises; the likely impact of the recommended adjustment on employment or the creation of employment; and any other relevant factor.

Jacques van Wyk is director and labour law specialist at Werksmans Attorneys.

By Nicole Norfleet for Seattle Times

To appeal to more workers, many companies and building owners are re­designing and renovating their offices. Modern kitchens with high-top seating, collaboration areas made for informal meetings and adaptable office furniture with standing desks have all become the new standard for office renovations.

While many of those features are predicted to still be prevalent in 2019, architects and designers say new design trends have emerged, with some clients investing in more privacy for their open offices, heavily branded design that reflects their company ethos, and more adaptable layouts.

Branded environments. Many clients want their workspace to reflect their company, a marketing tool that helps organizations stand out to prospective clients as well as a way to reinforce company culture among employees.

“They are really coming up with unique ways to define themselves,” said Natasha Fonville, brand manager of Minneapolis-based Atmosphere Commercial Interiors. “That beautifully branded experience is really going to keep trending and keep elevating the spaces around us.”

At the new downtown offices of Sleep Number, the company’s emblem is throughout the space on the wall and ceiling with Sleep Number settings on some of the tables.

At Field Nation’s new Minneapolis offices, a network of orange piping that runs electricity to light fixtures was designed as a representation of a technological network.

No receptionists
Some companies have decided to do away with front-desk receptionists, sometimes using technology to direct guests to where they need to go or having a more informal entry area.

Betsy Vohs, founder and chief executive of design firm Studio BV in Minneapolis, said 75 percent of her clients don’t really need a receptionist to answer calls or greet guests. “Having them at the front desk isn’t the best use of their time and energy,” Vohs said.

At the new Hopkins offices her firm has helped to design for Digi International, the company opted to skip the front-desk receptionist and use the space for an entry lounge with a coffee bar and a digital kiosk.

This past summer, Studio BV designed the offices of Field Nation, which also doesn’t use receptionists.

More agile space
Adaptable space has also become more of a priority as many companies have reduced the square footage dedicated to individual employees. With workers more nomadic, many new offices are currently designed to allow for rearrangement of the furniture layout and changes to walls and partitions.

“I think it’s just a sign of our times that workplaces are being so agile and really adapting to how people work best … and that’s always evolving,” Fonville said.

At Atmosphere’s downtown office, the walls are moved about once a year. For example, the company recently noticed that employees weren’t using some of the office enclaves, so leaders decided to take out a few walls to allow for more breathing room and larger meeting areas.

Audio privacy
As offices have become more open, one side effect has been that sound can carry throughout the space, making audio privacy a concern. Many new offices have private call rooms. Companies also have requested other sound-dampening materials such as acoustic foam, felt, drapery and carpet, Vohs said.

The renovated offices of Gardner Builders in Minneapolis, which Studio BV helped design, feature cubbies wrapped in acoustic foam.

The recently renovated RSM Plaza downtown has similar cutouts in its lobby. Some companies go as far as installing white-noise machines throughout their offices.

Move over, millennials
Much has been said about how current offices have been designed with millennial employees in mind, but designers have already begun to shift gears to interpret how the younger Gen Z might use their spaces. After millennials, defined as being born between 1981 and 1996, Gen Z is the newest defined generation. Gen Z is believed to be more realistic, social change-oriented, tech-integrated and interested in on-demand learning, said Rich Bonnin, a design principal at HGA in Minneapolis.

“These aren’t the decision-makers now, but they will be,” he said, at a recent broker event at the St. Paul Curling Club organized by real estate company Newmark Knight Frank.

Gen Z workers are more likely to value face-to-face interactions, shared space, choice-rich environments, security and the natural as well as the digital experience, he said.

Wellness
More architects have begun to incorporate design standards to advance workers’ health and well-being. WELL certification is still a relatively new concept that explores how design can help workers live better through improvements in air, water, light, fitness and other areas.

“It has kind of become the new LEED,” said Derek McCallum, a principal at RSP Architects in Minneapolis, which now has WELL-certified staff.

The 428 office building in St. Paul was WELL gold-certified and has high-level air filtration close to hospital grade, added water filtration, and a prominent and open staircase to promote physical activity.

Engaging employees
Companies are studying and surveying their employees more to make informed design decisions.

For the new headquarters for Prime Therapeutics in Eagan, external consultants studied the company’s previous offices to determine how much square footage per person was being used and the operational costs of the space.

They interviewed employees and observed to how they worked. Data showed that desks were sitting empty about 60 percent of the week, with people opting for shared spaces, said Kim Gibson, the company’s senior director for real estate workplace.

“We really wanted to understand how people were working and the things that they desired to help make them more productive,” Gibson said. The data helped Prime Therapeutics and architecture firm HGA create different spaces to accommodate workers, such as one-on-one spaces and private “oasis rooms.”

Amenities, amenities, amenities
The amenities race continues for many multi-tenant offices, with landlords investing heavily in community space and building perks such as modern gyms and lounges with high-end furniture. Many downtown Minneapolis office buildings have undergone recent rehabs of their amenity spaces, including RSM Plaza and the AT&T Tower.

Piedmont Office Realty Trust, the owner of U.S. Bancorp Center, plans to spend about $7.5 million to create a tenant-amenity space on the top floor of the tower. The building is more than 98 percent leased, but the company wanted to continue to improve the building, said Thomas Prescott, executive vice president of the Midwest region of Piedmont.

“It’s the right thing to do, enhancing our asset,” he said. “We’re excited. We’re making a significant investment in a building that’s mostly leased.”

A large stairway will lead up to the space that will feature a full fitness facility, tenant lounge, conference area and a game room with a golf simulator.

Source: Fin24

A landmark court ruling by the Constitutional Court that decriminalised the private and personal use of cannabis could leave employers in a pickle when it comes to health and safety in the workplace, experts have said.
This is because it may be difficult to determine for certain whether an employee is under the influence of cannabis or not when they come to work, which could have implications – particularly for employees performing potentially hazardous work.

The Occupational Health and Safety Act states that no person who is or appears to be intoxicated may enter or remain at a workplace. They may also not have in their possession, partake of, or offer any other person intoxicating liquor or drugs, it adds.

The exception is medicine in any form such as CBD Gummies, Vape or Liquid consumption, where the employer may only allow them to perform their duties if the side effects are not a threat to anybody’s health or safety.

Why it’s hard to test for cannabis
Gerhard Roets, Construction Health & Safety Manager at the Master Builders Association North, says the cannabis ruling left the construction industry scratching heads over how to ensure employee safety.
“In practical terms, the issue for employers is how to determine whether workers are under the influence of cannabis or not when they come to work.”

This is because the metabolism of cannabis is complex. Delta 9-tetrahydrocannabinol (THC) is the psychoactive substance in cannabis that provides the “high”.

Hemp oils derived from cannabis seeds are used medicinally – the health benefits are associated with the non-psychoactive cannabidol (CBD). But hemp products may contain some THC, which could also show up in drug tests. See the full review of the drug tests in order to know exactly what might or might not show up. Furthermore, a standard urine test just screens for the metabolites of cannabis, which can show up long after the psychoactive effects have worn off. There are rumors that, some experts who know how to clone weed are attempting to create a strand that, does not remain in the system for nearly as long. This would make it even more difficult to test for.

All this means is that a positive test may not reveal anything that incriminates the employee.

“One needs to understand that the Court’s ruling only decriminalises the possession, consumption and private cultivation of cannabis for private use in a private space. This means that employers remain responsible for providing and maintaining a work environment that is safe for all,” says Roets.

The Master Builders Association believes the main issue is that there is not an effective, standardised testing method available that can be used across industries.

“Until the testing issue is resolved, and the state of being ‘under the influence of cannabis’ is medically defined, employers will have to tread carefully,” says Roets.

But do you need a test?
Labour lawyer Michael Bagraim, also a DA MP and the party’s spokesperson on labour, says regardless of grey areas around testing, employers will have to rely on good old-fashioned observation for now – and employees should be aware that they don’t need a positive test in order to risk dismissal.

“Just like alcohol, cannabis intoxication is not acceptable at the workplace,” he told Fin24.

“On many occasions, and there have been many cases to this effect, the dismissal takes place after physical interpretation of intoxication. For instance, with alcohol you would notice slurred speech, bloodshot eyes, erratic behaviour and even breath smelling of alcohol. On the strength of the witness who notices this, a disciplinary inquiry is held and the individual can be dismissed.”

He says it is “slightly more difficult” with cannabis, but “you can palpably see if someone is intoxicated or not”.

“An eye witness is often stronger than the outcome of a positive result in a test,” he explains. “On many occasions an employee refuses a test and you cannot force someone. Also, cannabis can be detected for over a month after its use. A person might not be intoxicated but will still fail the test. A much stronger argument is an individual noticed to be intoxicated, with erratic behaviour.”

Professor Halton Cheadle, partner at specialist labour law firm BCHC, told media earlier this month that companies may have to reconsider their policies that deal with substance abuse. It’s important to review policies to ensure employers are equipped to take care of their employees’ safety, Cheadle said.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Xenophobia deters many South African employers from employing immigrants. However, many other employers are not at averse to employing aliens whether they are in the country legally or illegally.

Some of the reasons for the high number of illegal immigrants gaining employment in South Africa include:

• Job seekers from outside our borders provide potential employers with false identity documents or work permits

• Employers do not always think of asking prospective employees for proof of their right to work here

• Other employers, aware of the holes in the law enforcement system in South Africa, close a blind eye to such legal requirements because they couldn’t be bothered

• Some employers believe that an illegal immigrant will be more likely to do his/her work properly and obey the employer’s rules for fear of being reported to the Department of Home Affairs

• Illegal immigrants are often willing to accept lower remuneration than is paid to legal employees

• Employees without legal papers are often more willing to accept poor treatment, transfers to out of the way locations, extra work and not being registered for unemployment insurance

• Many skills are difficult to find in South Africa and many employers do not care whether they obtain these skills legally or illegally.

It is therefore not surprising that so many employers turn a blind eye to the law’s requirements. However, they do this at their peril because the courts have the power under the Immigration Act to repatriate illegal immigrants and to impose heavy fines on offending employers.

Immigration legislation very strictly prohibits the employment of foreign nationals unless extremely stringent, rigid and unrealistically lengthy procedures are first carried out. That is, the employer is, before employing an immigrant, required to prove that it has done everything in its power to recruit a South African into the post in question and that no such South Africans are available. By the time the employer has dragged itself through this time consuming process the foreign national with the rare skills has accepted a job in another country. These restrictive regulations are, under the latest amendments, currently becoming even more rigid and draconian.

What then must employers do when they discover that some employees are working illegally? Such employers obviously need to terminate the employment of such employees. However, what is not so obvious is how the employer should go about such terminations.

An employer cannot dismiss a suspected illegal alien before checking up on these suspicions. This is because, if the employee is incorrectly fired for being illegal, it may constitute an unfair dismissal and/or unfair discrimination on the grounds of ethnicity. This could result in the employer having to pay the employee compensation up to the equivalent of 24 months remuneration.

The wise employer’s first step is to investigate thoroughly all allegations that employees are working illegally.

Secondly, especially where the employee’s status is unclear, the employer should hold a hearing to establish the truth of the matter before firing the employee. This will give a properly qualified chairperson the opportunity to look thoroughly into the legality of the employee’s status.

Thirdly, where the hearing proves that the employee is working illegally the chairperson should end the employment relationship making it clear that this has been done purely for reasons of immigration law.

Employers: beware of unfair labour practices

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Section 186(2) of the LRA defines “Unfair labour Practice” as “any unfair act or omission that arises between an employer and an employee involving-

(a) unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee);
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 on account of the employee having made a protected disclosure defined in that Act.”

The word “unfair” is mentioned several times in the above definition. For example, under part (b) of the definition the section mentions “…any other unfair disciplinary action…” However, without an explanation of what ‘unfair’ means the entire definition of an unfair labour practice is meaningless. For example, there are many fair actions relating to discipline and many unfair ones. How do we distinguish between these? In addition to the definition of ‘unfair’ that I proposed above it is useful to examine the way in which arbitrators attempting to resolve labour disputes decide whether an act of an employer is fair or unfair.

In the case of Bosman vs SA Police Services (2003 5 BALR 523) Bosman and a black female had been shortlisted as candidates for promotion. The selection committee decided that the black female should be promoted for reasons of population group representivity. However, the committee was unable to prove at arbitration:

  • That the appointment of the black female would have promoted representivity and
  • That the black female was the best suited candidate

In the light of this the arbitrator found that the failure to promote Bosman was unfair and ordered the employer to promote her. The ‘unfairness’ decision here was made on the basis that:

  • Bosman had been proven to be the best candidate and therefore had the right to be promoted and
  • The decision to promote the black female was inappropriate because she was not the best candidate and there was no proof that her promotion would have served the purpose of affirmative action.

At the root of many “unfair” practices is the employer’s attempt to gain something. There is nothing wrong per se with an employer gaining something, as long as the employee or job candidate does not lose out unfairly as a result. Thus, an employer is entitled to protect its interests or save money by disciplining an employee or changing the employee’s benefits provided that the discipline is merited or the loss to the employee is justified.

As always, the challenge for the employer is to judge when its actions are merited and justified. Due to the complexity of the law such judgement cannot be done via guesswork. Every employer must therefore obtain comprehensive and in-depth expertise in labour law via the use of a reputable labour law expert and via training of all levels of management in the application of labour law.

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.

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.

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. Visit Babcock online to get more information on the aforesaid 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. San Francisco employment law attorney has experience in civil litigation and may represent you if needed.

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

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