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.
By Lameez Omarjee for News24
An owner of eight Spar grocery stores has been ordered to pay over R11-million to staff for not complying with labour laws.
The Department of Employment and Labour on Monday issued a statement indicating that the Commission for Conciliation Mediation and Arbitration had granted it eight arbitration awards – against the owner, cited only as a “Mr. Giannacoupolous” in the department’s statement.
The CCMA’s decision comes following inspections at outlets conducted in May 2019 by the department, this after it had received a “series of complaints of alleged gross violations of labour laws”.
The Spar stores inspected were the Spar Orchards, Dely Road, Doornport Spar, Montana Spar, Wierda Spar, Silverton Spar, Zambezi Super Spar, Rietfontein Spar, Silverplace Spar and Safari Spar in Rustenburg. Collectively, the stores employ 565 workers.
“On investigation, all the stores which happened to be violating the labour laws were found to be owned by Mr Giannacoupolous. Ten stores were affected, with nine based in Gauteng and one in the North West,” the department said.
The issues raised in terms of violations to the labour laws include: failure to issue employment contracts, long working hours for staff without overtime compensation, pay for Sunday work and public holidays not granted according to the law, illegal deductions and complaints related to the hiring of illegal foreign nationals, according to the department.
In October last year Business Insider reported that the Spar head office had terminated the membership of the 23 stores which had fallen under the Giannacoupolous Group, with the intention to run them directly – as the group had brought the Spar brand into disrepute. A spokesperson of the Spar Group on Monday told Fin24 that the stores have since been returned to the Giannacouplous Group.
The Spar Group would not comment on the latest developments between the Department of Employment and Labour and the Giannacoupolous Group. The Spar Group is currently engaged in a legal battle with the Giannacoupolous Group, which is set down to be heard by the court in early March, making all matters between the two sub judice, the spokesperson said.
The Spar owner has to comply with the CCMA award within 14 days, or pay an amount with accrued interest.
Spar’s share price opened at R177.3 on Monday and was trading 2.26% lower at at R168.51 by 15:55.
By Lizle Louw and Shane Johnson for Webber Wentzel
Following the Constitutional Court’s Prince judgment, cannabis use, possession and cultivation in South Africa has been decriminalised with adult persons now permitted to use, possess and cultivate cannabis in a private place for personal consumption.
Given that Prince does not deal with the effects of the decriminalisation of cannabis in the workplace, many unanswered employment related questions emerge which we set out below.
What can be said, at this stage is that Prince does not affect an employer’s obligation to maintain a safe working environment for all of its employees, which includes prohibiting employees who are “intoxicated” from entering the workplace, and policies and testing applicable to alcohol use in the workplace are not likely to be appropriate in dealing with cannabis use.
Cannabis in the workplace
In terms of Prince, the use, possession and/or cultivation of cannabis by adults is permitted “in private”. Although cannabis use, possession and cultivation is not confined to one’s “home” or a “private dwelling”, it is likely to be difficult for an employee to argue that the workplace is a “private” space, especially given that the use of cannabis in public or in the presence of non-consenting adult persons is not permitted.
The more difficult issue is where employees use cannabis in private, outside of the workplace, and thereafter report for duty. Cannabis can affect an employee’s occupational capacity in various ways, including performing tasks more slowly, performing poorly when handling routine, monotonous tasks, difficulty in multi-tasking, difficulty in taking instructions from superiors, difficulty in making crucial decisions (especially in high risk situations), difficulty in operating machinery and/or motor vehicles. It is these consequences that an employer will have to consider when the employee reports for work and test positive for cannabis use.
The above scenario may not seem very different to employees using alcohol in private and then reporting for work. The difference, however, between alcohol and cannabis in relation to workplace policy is that for as long as alcohol is detected in the human body, it results in impairment; Cannabis may be detected in the human body for months after use, which at that time may no longer cause impairment.
Testing of employees for cannabis
Medical testing of employees remains regulated by section 7 of the Employment Equity Act (EEA). Medical testing of employees is permitted if it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. An employer who wishes to test an employee for cannabis may be able to justify such testing relying on the provisions of the EEA. A number of tests (some of which are not available in South Africa at present) are used to test for cannabis: breath, blood, oral fluid (saliva), urine, sweat and hair.
Saliva tests will show cannabis use in the past 24 hours (which could be an indication that the employee is still impaired) but hair testing will show cannabis use for up to months after use (which could mean that the employee is no longer impaired). It will not necessarily be the actual testing that will be problematic, but what one does with the test results.
Workplace policies and procedures
Most employers enforce a zero tolerance approach to the use of any drugs and/or alcohol in the workplace. Prior to Prince it was relatively easy to deal with cannabis at work as cannabis use, possession and cultivation was a criminal offence. Following Prince, and given that traces of cannabis may remain in the body for months after use (which does not automatically result in impairment) employers may need to regulate cannabis as a separate issue and by implication through a separate policy and procedure. Zero tolerance policies may not be justifiable.
Employers and their occupational medical practitioners should consider the safety requirements at the workplace and determine whether a zero tolerance approach is justifiable or whether there is an acceptable limit of cannabis trace after some time of use. This may include conducting a screening test (such as a saliva test) that will show immediate past use and then conducting further tests to establish the level of impairment.
By Qama Qukula for Cape Talk
Last year, President Cyril Ramaphosa signed a landmark law that provides new fathers with 10 days consecutive paid leave after the birth of their child.
But many questions remain about the amendments, what they mean, and when they come into effect.
According to Business Tech, labour minister Thulas Nxesi referred the amendments and the corresponding regulations to the Unemployment Insurance Board for consultation. The next steps will see the amendments gazetted for public comments before the legislation is finalised.
Employment law expert Anli Bezuidenhout tackled some frequently asked questions about parental leave and how it will apply to fathers.
Paternity leave will be paid out of the Unemployment Insurance Fund (UIF), it will not be the employer’s responsibility.
Employees will be given a partial payout. It can be up to 66% of the father’s salary.
Can dads bargain?
Employees can negotiate some kind of co-payment with their employer to pay the balance of their salary and establish a work back contract for when they return to work.
When must the leave be taken?
The leave may commence when the child is born. Bezuidenhout says the Act provides the scope for fathers to negotiate with their employers.
What must employers do?
Employers need to amend their employment contracts to make them compliant with this new law.
What happens to family responsibility leave?
The three days of family responsibility leave will still exist and remains separate from parental leave.
However, it cannot be used when a child is born. It can be used in cases when a child falls sick or passes away.
By Ivan Israelstam, chief executive of Labour Law Management Consulting
One of the legal terms and concepts that appear to confuse employers and employees is ‘victimisation’. This is partially because the labour statutes do not deal fully with the concept of ‘workplace victimisation’.
The LRA does appear to deal with the issue of victimisation in a partial and indirect way. For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. Also, chapter 2 of the EEA also alludes to practices that could constitute victimisation. These sections attempt to define and prohibit the following acts on the part of employers:
• Interfering with the rights of employees or job applicants relating to trade union membership or or activities;
• Prejudicing an employee or job applicant due to his/her legitimate disclosure of information or exercising of any right conferred by the LRA;
• Unfair promotion, demotion, suspension, discipline, training or provision of benefits
• Unfair conduct on the employer’s part relation to probation or contravention of the Protection of Disclosures Act.
• Unfair discrimination and harassment.
While labour law does, as outlined above, deal with many types of employee mistreatment that could constitute ‘victimisation’ there are a number of large gaps in the LRA and EEA. For instance, these acts do not specifically or directly prohibit an employer from shouting at assaulting or making unfair threats against an employee. The acts also do not specifically prohibit the employer from moving the employee out of his/her office into a draughty passage or from transferring the employee from location to location as a means of victimising the employee. Section 186(e) does consider a forced resignation as a dismissal but this does not help an employee who cannot afford to resign in order to escape victimisation. Employees are also not sure how to go about exercising their legal rights in this regard. For example, in the case of NEHAWU obo Mashigo & Others vs Department of Health (2004, 11 BALR 1362) the employees lodged a grievance against the employer due to unhappiness with their employment benefits. They were later dismissed and referred a dispute for unfair dismissal to their bargaining council. The arbitrator ruled that:
The bargaining council had no jurisdiction to deal with such a dispute of unfair discrimination. Despite having ruled itself to have no jurisdiction the bargaining council nevertheless issued an award to the effect that the dismissal was not unfair. This case illustrates that arbitration awards can be made which ignore victimisation allegations. However, employers should not make the mistake of believing that they are free to victimise their employees, as this is not the case.
For example, in the case of OCGAWU obo Fex & Others vs Highway Motors (2004,3 BALR 369) three employees raised a number of complaints with the employer. Thereafter, the employer reduced their working hours to 24 per month and hired new employees to perform the work on a full-time basis. The three employees referred this to the CCMA as an unfair labour practice (suspension). The CCMA held that the employer had unfairly victimised the three employees and ordered the company to pay each one the equivalent of 12 months’ remuneration.
This case illustrates that, before employers act against employees in any way, they need to get expert advice from a reputable labour specialist.
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:
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.
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.
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.