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BASIC GUIDE: LABOUR RELATIONS IN SOUTH AFRICA

In today’s world, we need to arm ourselves with as much information regarding our rights. Especially when it comes to fair and unfair labour practices., according to Labour Relations in South Africa.

Every employee/worker is entitled to fair labour practices in South Africa. Let us elaborate a bit more on fair labour practices, and the different types of unfair dismissal.

First, who does The Labour Relations Act apply to?

The Labour Relations Act applies to all employers, workers, trade unions and employers’ organisations. It does not apply to:

• National Defence Force,
• National Intelligence Agency, or
• South African Secret Service.

The Labour Relations Act (LRA), Act 66 of 1995 aims to promote economic development, social justice, labour peace and democracy in the workplace.

For a fuller understanding of The Labour Relations Act, please download it here.

DISMISSAL:

Under dismissal, every employee or worker has the right to not be unfairly dismissed.

What is the definition of DISMISSAL?:

“Dismissal” means that, or the reason for ‘Dismissal’ is –

• the employer has ended a job contract with or without notice;
• an employer did not renew a job contract as agreed, or offered to renew it on less favourable terms;
• an employer does not allow a worker to return to work after she –
  • has taken legal maternity leave;
  • has been absent up to 4 weeks before and up to 8 weeks after the birth;
• an employer, who has dismissed several workers for the same reason, re-employs only some of them;
• a worker ended a job contract with or without notice, because –
  • the employer made working circumstances unbearable; or
  • a new employer made working conditions less favourable than the old employer.

(www.labour.gov.za)

Fair Dismissal is when:

There is really only 3 grounds for fair dismissal;

1. Conduct of the employee
2. Capacity of the employee (his ability to do his job)
3. Operational requirements of your business (retrenchment)

As stated by (www.labour.gov.za), fair dismissal is also when;

• A worker has reached retirement age

If an employer wants to dismiss an employee, there are 5 vital elements to substantive fairness:

• The accused employee did commit the misconduct.
• The employee knew or should’ve known that the conduct was an infringement of your rules.
• The rule or standard was valid or reasonable.
• The rule was consistently applied.
• The misconduct was serious enough to merit the harsh penalty of dismissal.

What are some of the reasons an employer would want to dismiss an employee or worker?

• Absenteeism
• Alcohol addiction & abuse
• Breach of restraint of trade agreement
• Desertion
• Disability
• Email/Internet abuse
• Failure to observe security and safety regulations
• Gross incompetence
• Gross negligence
• Illegal striking
• Incapacity
• Insubordination
• Moonlighting
• Poor performance
• Refusal to work
• Retrenchment
• Sexual harassment
• Sleeping on duty
• Theft
• Time keeping

Unfair Dismissal is when:

• a worker intended to or did take part in or supported a strike or protest; or
• a worker refused to do the work of a striking or locked out co-worker, unless his refusal will endanger life or health; or
• a worker is forced to accept a demand; or
• a worker intended to or did take action against an employer by –
  • exercising a right; or
  • taking part in proceedings; or
• a worker is pregnant or intends to be pregnant; or
• an employer discriminated against a worker because of race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility; or
• an employer cannot prove –
  • a worker’s misconduct or inability; or
  • that the employer’s operational needs are valid; or
  • that the dismissal procedure was fair.

(www.labour.gov.za)

What happens after the idea of dismissal has been discussed?

There is something called ‘Pre-Dismissal Arbitration’, where, with a worker’s consent, an employer may want to seek assistance from a council, agency or Commission for Conciliation, Mediation and Arbitration also known as the CCMA, to arbitrate on a workers conduct or ability.

Only after the employer has paid the necessary fee, and the worker has given consent, will an arbitrator be appointed.

When the time for arbitration arrives, a worker may represent himself, or be represented by the following individuals:

• A co-worker
• A director or worker (if they are a juristic person)
• Any member of the workers registered trade union, or
• A lawyer that has been agreed to by both parties.

Now that we understand a bit more of the processes included before and during a dismissal, what exactly constitutes and ‘Unfair Labour Practice’?

Unfair Labour Practice:

Means any failure to act or unfair act of an employer towards a worker.

Concerning:

• Promotion/Demotion, Trial Periods, Training or Benefits.
• Suspending a worker or disciplinary action,
• Refusing to re-employ a worker, as agreed, and
• An employer makes circumstances difficult for a worker who was force to make a protected disclosure.

In the event of this happening, a worker may dispute their dismissal.

Disputes:

What is the procedure when it comes to ‘disputes’?

When unfairly dismissed, a worker may refer disputes for conciliation in writing to:

• a statutory or bargaining council; or
• the CCMA.

Referrals must be made within –

• 30 days of a dismissal date or an employer’s decision to dismiss;
• 90 days of the date of an unfair labour act; or
• 90 days of the date when a worker became aware of an unfair act.

Please note: A dispute may be referred to after the above periods if the worker can show good cause.

The employer must receive a copy of the referral.

What happens in an ‘unresolved dispute’?:

This is what needs to happen if a dispute remains unresolved: –

• a council or the CCMA must arbitrate it, if a worker requests it, if –
  • a worker alleges that the dispute is about his conduct or capacity;
  • the worker alleges that his employer made working conditions intolerable or less favourable after a transfer;
  • the worker does not know why he was dismissed;
  • the dispute is about an unfair labour practice;
• a worker may refer a dispute to the Labour Court, if they say the reason is –
  • automatically unfair;
  • based on operational needs;
  • they refused to join a trade union;
  • the worker was refused trade union membership;
  • the worker was expelled from a trade union.

A council or the CCMA must arbitrate immediately if –

• the dismissal is linked to a worker’s probation; or
• any other dispute where no-one objects to it being settled in terms of this subsection.

For more information on the CCMA, please visit www.ccma.org.za

 

Thank you for reading!

 

 

Measured Ability SA

 

WHAT CAREER PATH SHOULD I CHOOSE?

 

The step-by-step guide

 

When you start thinking about your future and choosing your career path, your heartbeat may increase and your brow may sweat, but never fear; the complete guide is here!

No need for settling, no need for dreading work; here are some of the best ways to make sure you choose your career wisely.

 

 1.

 What are you passionate about? Explore those fields.

What are some of your hobbies?

What do you like doing?

Once you have a better idea of that, start exploring the different job opportunities within the parameters of what you like, or possibly what you are good at.

You don’t have to only explore your likes, or interests, but understanding this provides you with a good starting point. Also, don’t compare yourself to others, choose a path that YOU would enjoy and perform the best in.

No matter if you are analytical, practical, creative or technical, you may even be a socialite; there will definitely be a range of career paths that will suit you.

 

2.

Now that you have jotted down your skills – Use them.

By now you should have written down your skills, qualifications, like, dislikes and experience. With this information you can further refine your potential role research, and have them actually play to your strength.

Bare in mind, no matter how well you excel within different skills, hard work will always pay off and there is always more to learn, but those skills you possess will make it easier to find an achievable job prospect.

This also means that your strengths will be recognised and used to their maximum potential. You don’t want to be stuck in a career that doesn’t use the skills you have developed.

 

3.

 You may not enter the perfect job straight away, but you can always plan it out.

Once you have made your decision, think about the steps you may have to take to work your way into your dream position in the career path of your choice. If you are a people’s person, and have great sales and customer service skills, your chances of becoming the Sales Director is greater, especially if you are willing to start from the bottom and learn all the tricks of the trade.

Also ask yourself: is what I’m study going to bring me closer to my dream? Is the experience I’m gaining beneficial? If not, consider changing your game plan.

Remember, if you feel stagnated in your current job, there are courses you can take, volunteering groups and further educational training. These steps also help you better understand your value, and it makes you more employable.

Also, remember that a field of work is far more than a single job. Fields are broad; try looking for 5 jobs within that field

 

4.

Experience is key.

So, the well-known double edged sword of, how do I gain experience, if I need experience beforehand?

People seem to forget about work experience and internship opportunities, and this is a good place to start. Within these, you will be able to use the skills you have in a practical fashion, in a work environment. You will also gain more skills while doing so. If you work hard, it may turn into a permanent position and you may leverage key connections within the industry. Networking is very important.

Learn as much as you can about the qualifications needed to enter this field.

Even if the position doesn’t work out, you have still learnt something, and knowledge is invaluable. You’ll also have a better idea of what you truly want to do.

Here is a list of current internships in SA.

 

5.

 Always research what the career actually entails.

Remember, nothing is what it seems, until you’ve dug a little deeper.

Speak to people in the industry, try and get an idea of what their day to day tasks are, and what sort of lifestyle they lead.

Lifestyle is extremely important. A high status roll like a doctor or a lawyer may seem great, but they aren’t for everyone.

Dedication is key to any career, so make sure you can commit to your chosen career path.

 

6.

Expectations, don’t make them too high.

Be realistic when setting goals and looking for your future career path. As much as we all want to follow our childhood dreams, if they aren’t attainable, your career may not go anywhere.

Go into every career with an open mind. Expectations can trump the reality of the job and you may not enjoy it as much as you thought because you set them too high.

For example: You may not like your job at first, but by keeping an open mind, it may turn into the best career decision you could ever make.

You also don’t want your CV to put forward the notion that you are a ‘serial job happier’.

Keep this in mind: Leaving a job after 6 months because you have realised that career choice is wrong for you is acceptable. Leaving after a day is not.

 

Let’s have some fun:

https://www.buzzfeed.com/ashleyperez/what-career-should-you-have?utm_term=.xmglXxYZb#.ik31DrQ4W

We hope that this read has helped you move along to your dream career. For more information on how to write a CV, how recruitment agencies work and more visit https://measuredability.com/blog/

Overtime Pay

 

Working times and overtime are regulated by Chapter two of the Basic Conditions of Employment Act.

The act applies to all employees except members of the South African Defence Force, National Intelligence Agency, State Security Agency, and unpaid volunteers working for a charitable organisation. Workers engaged in emergency work are excluded from certain provisions

 

Certain sections, including the sections on overtime, are also not applicable to:

• Senior managerial employees
• Sales staff who travel to customers and regulate their own hours of work
• Employees who work less than 24 hours a month for an employer
• Employees who earn more than the threshold amount (at time of publishing this was R205,433.30 per annum or R17,119.44 p/m)

 

The act states that the maximum ‘normal’ hours of work are 45 hours per week. The maximum ‘normal’ hours in a day would be 9 hours a day if the employee normally works 5 days or less a week, or 8 hours a day if they normally work more than 5 days a week.

However, this does not mean that an employee must always work a 45 hour week before overtime kicks in. The normal hours would be as per the contract signed by the employer and employee and could be less than 45 hours. If the employee normally works 40 hours a week, then any hours over 40 would be regarded as overtime.

Those earning above the threshold need to negotiate with their employer what their normal hours would be and this could be more than 45 hours.

Meal breaks are not included in the calculation of working hours and are unpaid. (However, an employee must be paid for the portion of a meal break that exceeds 75 minutes, unless they live on the premises.) So if an employee works a nine-hour day and has an hour meal break, they will be on-site for 50 hours a week but are still seen as working for only 45 hours. A meal break is normally an hour but can be reduced to 30 mins by contractual agreement.

Overtime can not be compulsory, and an employee cannot be expected to work overtime on short notice unless they have contractually agreed to do so. Having said this, an employee cannot refuse to work overtime if the work required must be done without delay owing to circumstances which the employer could not have planned for, such as repairing a machine that has broken down.

The maximum permissible overtime in a week is 10 hours in any one week or 3 hours in any one day. Employees earning less than the threshold should earn 1.5 times the normal rate of pay for any overtime except on a Sunday or public holiday when they should earn double pay. However, if the employee normally works on a Sunday, then work on a Sunday would be paid at 1.5 times their normal rate.

By agreement, the employer may give the employee paid time off instead of paying the employee for overtime. In this case, the employer must give the employee time off calculated using the same formulas (ie. one and a half or double the hours, depending on when the overtime was worked). This time off should be granted within one month of the overtime being worked, although this can be extended to one year by agreement. The parties can also agree to a combination of pay and time off.

Employees who earn over the threshold have no right to demand extra pay for working overtime. Nor can they demand time off for overtime worked. However, they still must agree to any overtime and cannot be forced to work overtime, or work overtime without compensation, unless they have agreed to do so. Whereas they don’t have a right to demand these things, they do have a right to negotiate for them.

It is important to note that any agreement reached on overtime during the first three months of working will expire after one year, and a new agreement needs to be reached.

Need Staff?

 

The Measured Ability group provides recruitment and labour broking services for all industries, all over South Africa as well as other parts of Africa and the Middle East. We can provide candidates for permanent or temporary placements, or we can hire out our own employees to you, which means we become responsible for all admin including payroll, leave (and overtime) admin, Industrial Relations and much more. Contact us for more information.

Need a Job?

Search through our latest vacancies, or send us your CV and let us help you to find the perfect job.

 

Disciplinary Procedure

 

Discipline is, for most people, a fairly unenjoyable but necessary part of labour relations. It is essential for a smooth-running business to have some form of the disciplinary procedure.

South Africa labour legislation does not set out any specific steps that need to be taken when conducting a disciplinary enquiry. But the following can be taken as a guideline for how to proceed. Please note that the following procedure would not substitute any collective agreement on disciplinary procedures. Parties may also, by mutual consent, approach the CCMA or bargaining council for arbitration.

It is important to have clear rules and to communicate those rules to your workforce. Some rules may not need to be specified as they could be seen as obvious. For example, breaking the law by stealing from the workplace or assaulting a colleague or superior are not really necessary to specify, as everyone should already know that such behaviour is not permitted.

It is good to keep the following in mind when engaging in disciplinary procedures:

• You should not discipline yourself when you are angry or upset.
• Discipline should be applied as soon as possible after the relevant incident.
• All other possible outcomes should be explored before dismissal is applied.
• Gather all of the facts, and ensure that proper procedure is followed.
• If disciplining a union representative or shop steward, then the union needs to be consulted and informed before going forward with any disciplinary action.

 

The difference between counselling and disciplinary action

 

The first step should always be to counsel the employee. This is appropriate when the employee is not performing to the expected standard or is not aware of a particular rule, or where a breach is fairly minor. The idea is to make sure they understand that they are not performing as expected or to explain and ensure they understand the minor breach that they have made, and to bring their performance or behaviour up to the expected standard.

The following is a recommended course of action for counselling an employee:

• Invite the employee to a meeting and ensure they know what it is about.
• Ensure a private and uninterrupted meeting.
• Draw the employee’s attention to the problem and ensure that you both agree that a problem exists.
• Ask the employee to explain their misconduct.
• Ask the employee if they have any ideas of how to correct the problem.
• Offer your suggestions and try to reach a consensus on the way forward.
• Agree on each party’s role going forward and set a date for when you will meet again to reassess the situation.
• Keep a note of the meeting and the agreement reached.
• Meet again on the agreed date to see if the problem has been remedied. If not, then disciplinary action should be considered.

Disciplinary action is appropriate where the breach of conduct cannot be condoned, or where previous counselling has not solved the problem.

 

Kinds of disciplinary action

 

There are a number of forms of disciplinary action that can be applied, which would depend on the severity of the offense and whether the employee has broken the same rule in the past. Before deciding on a form of discipline, a meeting should be arranged between the employee and management in order to explain the rule which has allegedly been breached. The employee must be given a chance to respond and explain their conduct. This meeting should preferably arrive at an agreement on how to remedy the situation.

The following forms of discipline can be used (in order of severity):

• Verbal warnings
• Written warnings
• Final written warning
• Suspension without pay (for a limited period)
• Demotion, as an alternative to dismissal only
• Dismissal

 

The employer must establish the severity of the infraction while referring to the company’s rules. If the offence is not serious, then an informal verbal warning may be given. The law does not specify any particular number of warnings, and dismissal can be applied to the first offence for a serious enough breach.

A final written warning can be applied when the contravention is serious, or if the employee has received warnings for a similar offence in the past.

An employee can appeal against a final warning, and the employer can hold a formal enquiry if they believe that it is only through such a process that the outcome can be determined.

A verbal warning is usually valid for 3 months. A written warning is normally valid for 6 months. After this time has elapsed, the warning should be removed from the employee’s records. A warning for one kind of infraction cannot be applied to another, different type of offence.

Employees should always be requested to sign their warning letters and given a chance to state their objections if any. The letter is still valid if the employee refuses to sign it. In this case, a witness should sign and state that the employee refused to do so.

It is recommended that employers keep records for each employee, specifying the nature of any breaches of conduct, the actions are taken, and the reasons for these actions.

Dismissal should be reserved for the most serious of offences, and must be preceded by a disciplinary enquiry, unless it is impossible or undesirable to hold such a hearing, for example where the employee has absconded, or where the enquiry would be likely to endanger life or property.

 

Formal Disciplinary Enquiries

 

An employee may be suspended on full pay pending a hearing, especially in cases where the employee being on-site may jeopardise the investigation of the incident.

The employer must give the employee at least three days’ written notice of such a hearing.

The letter should include:

• The date, time, and venue of the hearing
• Details of the charges
• The employees right to representation (by a fellow employee or union representative if applicable) should also be explained

Remember that if the employer is intending to discipline a shop steward, then the union must be notified before serving notice to the employee.

 

The following people should be present at a disciplinary hearing:

• A chairperson to chair the hearing. This should not be someone who has a personal interest in the outcome.
• A management representative.
• The employee is disciplined.
• Any representatives of the employee.
• Any witnesses for either side.
• An interpreter if required.

The employer should lead with evidence first, followed by the employee. The chair may ask any questions of witnesses for clarification. Once both sides have presented evidence and witnesses have been questioned, then the chair should decide on a verdict of guilty or not guilty.

 

They will need to decide:

• If a rule has been broken
• If the rule was valid and reasonable
• If the employee knows about or should have known about the rule
• If the employer has been constant in applying the rule

 

If the verdict is guilty, then the chair may ask both sides for input on the appropriate disciplinary measures. The chair makes the decision on what measures to implement and informs the employee. The employee should be informed that they have the right to appeal. If there is no appeal procedure, then the employee may take the case to the CCMA or bargaining council.

A failure to attend a disciplinary hearing is not caused to stop the hearing unless a valid reason for their absence can be provided.

 

Tired of having to deal with your own disciplinary procedures?

 

Measured Ability has a labour broking division, which means that we hire out all kinds of workers on a temporary basis to other employers.

Not only does this mean that any disciplinary action and IR issues become our problem, but we also handle payroll, all leave administration, PPE, and a million other things. And we are able to quickly increase or decrease your workforce complement based on seasonal fluctuations.

If you are interested in learning more about how we can take over all the headaches involved in your staffing, please contact us now and we’ll get one of our consultants to call you right back.

Similar Content:

Unfair Dismissal

Constructive Dismissal

 

Employee Assistance Programs

 

What is an Employee Assistance Program?

An Employee Assistance Program is an employer sponsored benefit program that helps employees deal with any personal programs that might affect their performance or emotional well-being. They do not have to be work related problems, but rather any problem that might negatively affect the employee’s ability to do their job. The services are often available to the employee’s entire family, not just themselves.

Such programs started in the 1930’s specifically to deal with alchohol abuse, but have expanded to offer support for a wide range of issues.

There can be many benefits for employers who start Employee Assistance Programs, especially reduced absenteeism and increased productivity. The employees generally have direct 24 hour access to professional psychological counsellors, with quick access to other medical professionals when necessary.

What do Employee Assistance Programs offer?

Employee Assistance Programs usually offer free and confidential counselling for the following kinds of issues:

• Substance Abuse
• Family and marraige problems
• Emotional problems
• Financial problems
• Legal problems
• Occupational Stress
• Employee Distress
• Major life events (Births, Deaths, Accidents etc)
• Major health concerns
• Separation and loss
• Trauma debriefing
• Burnout control
• HIV/AIDS counselling

Some providers might also offer assistance with retirement or lay-off issues, or even health related issues such as fitness and exercise, weight control, nutrition, quitting smoking etc.

Need to find quality staff?

Measured Ability is a recruitment agency and labour broker sourcing quality employees for all industries, nationwide. If you need some extra hands, on a temporary or permanent basis, from unskilled workers to top management, trust the experts to help you to find the right people.

Please contact us now to find the right person for your vacancy.

 

 

What is the Definition of Affirmative Action?

 

What does Affirmative Action Mean?

 

Affirmative Action refers to the methods used to try and achieve Employment Equity. It is an attempt to redress the imbalances caused by our history of Colonialism and Apartheid and ensure that all people have equal employment opportunities and are equitably represented in all categories and levels of employment.

 

The History of Affirmative Action

 

The term ‘Affirmative Action’ was first used in the USA in 1961, when President John F Kennedy signed an order (Executive Order No 10925) including a provision that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.”

In South Africa, Affirmative Action started with the Employment Equity Act and the Broad-Based Black Economic Empowerment Act which together aim to achieve workplace equality through advancing people from designated groups (defined as ‘black people’, women, and those with disabilities).

How does Affirmative Action work?

 

Employment Equity legislation requires companies with over 50 employees (or who exceed a certain turnover based on their industry) to do the following:

• Consult with their employees (or their representatives) from all levels and categories within the company, including designated groups and non-designated groups
• Conduct an analysis of current workplace policies, practices, procedures, and the working environment, in order to identify barriers that adversely affect those from designated groups
• Design and implement plans to improve their workplace equity and report on such plans to the Department of Labour annually or every two years, depending on the number of employees in the organisation.