Category: Employment

EMPLOYERS BEWARE: DISMISSAL FOR POOR PERFORMANCE COULD BACKFIRE

It is reasonable to want to dismiss an employee for not performing on the job, or failing to meet a specific target. However, Employer’s should ensure that the targets they set are actually achievable for the employee. If not, they could be found at fault for dismissing an employee who failed to achieve unreasonable targets.

Damelin (Pty) Ltd vs Parkinson

In a recent judgement, delivered in January 2017, tertiary education company Damelin (Pty) Ltd, hired Parkinson as the general manager of the Boksburg campus. Parkinson’s employment contract stated that, ‟continued nonattainment of performance goals may result in the termination of employment.”

When Parkinson took up his position in January 2011, the campus had 352 enrolled students of which 168 were first-year students. His target for 2012, which was the national target, was to enrol 420 first year students by February 2012. Andrew Pienaar, the national sales director, estimated that there were 15 000 grade 12 learners in the catchment area the Boksburg campus. Parkinson queried the target, saying that his team contacted all the schools in the area and there were only 12 735 grade 12 learners in his area. He claimed that unrealistic numbers give rise to unrealistic targets, and that it was like being set up to fail.

The actual enrolment of first-year students for the Boksburg campus for 2012 was 117 first year students. In 2011, the figure had been 168. Parkinson had not met the target. A disciplinary inquiry was convened. Parkinson was charged with poor work performance relating to his failure to reach sales targets and was dismissed.

Unhappy with his dismissal, Parkinson and his union went to the CCMA. The commissioner determined that the dismissal was the appropriate sanction. Still dissatisfied, Parkinson then went to court. The court determined that dismissal could only be considered as a fourth step. The court set aside the award and reinstated Parkinson saying that the informal letters written to Parkinson could not be considered warnings, and that he was not given an appropriate amount of time to reach his targets.

Conclusion

Setting unrealistic expectations on employees could set them up for failure. In these circumstances, dismissal would not be appropriate. It is therefore important that employers ensure the standards they set for their employees are achievable within a reasonable amount of time.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Case no: JA 48/15

CAUTION TO EMPLOYERS: DON’T FALSELY ACCUSE EMPLOYEES

Employers who dismiss employees should take remember not to falsely implicate them in the process. This could land employers in hot water with the CCMA, and the Court.

Clover SA (Pty) Ltd and Another v Sintwa

In a recent case, the High Court heard a damages claim arising from defamatory statements made by a witness while giving evidence before the CCMA.

Harrison Sintwa was employed by Clover SA as a team leader, reporting to Frederick Bopp, a production manager. He was responsible for checking machines and products to ensure that they passed the relevant standards. He was required to sign a daily operator report to confirm that the checks were done.

One day, it came to Clover’s attention that Sintwa had falsely signed that he had conducted certain checks when, actually, he had not. Clover charged him with fraudulently co-signing the report. A disciplinary inquiry was convened and Sintwa was dismissed.

The CCMA

Sintwa approached the CCMA with an unfair dismissal dispute. Bopp gave evidence on behalf of Clover at the disciplinary hearing and at the arbitration proceedings before the CCMA. During his evidence, he stated that it came to his attention that Sintwa had co-signed the report sheet and, therefore, committed fraud. The CCMA commissioner found Sintwa’s dismissal to be unfair on the basis that Clover had failed to prove that he was guilty of fraud, finding that his conduct was instead a result of negligence. Mr Sintwa was awarded four months’ salary as compensation.

Implicating an employee can lead to defamation

It didn’t end there, Sintwa also approached the High Court and instituted a damages claim against Clover and Bopp, based on the alleged defamatory statements they presented at the arbitration proceedings before the CCMA. Sintwa claimed R100 000 as damages saying that Bopp and Clover had wrongfully and unlawfully claimed that he had committed fraud.

The court concluded that the statement implicating Sintwa of fraud was irrelevant and unconnected to the arbitration proceedings before the CCMA and that Bopp had acted out of spite, which was supported by the fact that another employee who had co-signed the report with Sintwa had not been charged. It decided that Clover and Bopp had exceeded the bounds of qualified privilege and awarded Sintwa R100 000 in damages.

Conclusion

The take away is that employers should refrain from acting out of spite when dismissing employees. What you say, if untrue or unsupported, could make you accountable for an employee’s dismissal, to the CCMA and the Court.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

Clover SA (Pty) Limited and Another v Sintwa (CA2011/2015) [2016] ZAECGHC 77; [2016] 12 BLLR 1265 (ECG); (2017) 38 ILJ 350 (ECG) (13 September 2016)

Can I still make a case of unfair labour practice if I have settled?

A2_bIn this article we will discuss whether, in the face of an agreement between an employer and an employee in terms of which an employee accepts a demotion to a lower position, the employee is nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.

The facts in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] can be summarised as follows: The employee worked as an Administrative Manager at Builders Warehouse (Pty) Ltd. She was informed by doctors that she was very ill and would most likely have to go to hospital frequently and take various types of medication. Over the next three years her absenteeism increased significantly and her employers became concerned as she was no longer able to do her job effectively, even when she was not absent, due to the side effects of her medication. Builders Warehouse (Pty) Ltd, after having discussions with the employee, suspended her pending an investigation into her capacity to undertake the functions of an Administrative Manager, taking into account her health and performance. Builders Warehouse (Pty) Ltd held an incapacity hearing and the external Chairperson ruled that, due to the employee’s excessive and increasing absenteeism, dismissal was the appropriate sanction. The Chairperson, however, offered her a demotion instead of a dismissal. The employee accepted this demotion in writing.

After this agreement between Builders Warehouse (Pty) Ltd and the employee was concluded, she obtained legal assistance and subsequently complained to the CCMA that Builders Warehouse (Pty) Ltd had committed an unfair labour practice by demoting her.

The question here is whether, in the face of an agreement between Builders Warehouse (Pty) Ltd in terms of which the employee accepted demotion to a lower position, she was nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.[2]

The arbitrator in the CCMA decided that because there was consent to the demotion, the CCMA did not have jurisdiction to hear the dispute. The employee then appealed to the Labour Court and once again to the Labour Appeal Court, of which the outcomes are set out below.

The Labour Court and the Labour Appeal Court looked at Section 186(2)(a) of the Labour Relations Act[3] in this regard, which states the following:

“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits.”

The Labour Appeal Court upheld the judgement in the Labour Court and found that although a binding contract comes into existence when employers and employees settle their differences by agreement, such an agreement does not mean that the CCMA does not have jurisdiction to hear the dispute. The fact that the parties have agreed that the employee accepts demotion is not a complete defence for the employer because the ambit of this unfair labour practice is wide enough to include the implementation of an agreement to accept demotion.[4] The Labour Appeal Court confirmed that the determination of whether a demotion took place, unlike the determination of dismissal, does not require an arbitrator to determine if there was consent or not.[5]

In conclusion, it is clear from the Builders Warehouse case that, although consent is a relevant issue in regard to the merits of a dispute regarding an unfair labour practice, it is not a jurisdictional prerequisite. This means that the CCMA does have the power to hear a matter relating to a demotion even though there was consent thereto.

Bibliography

  • Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC
  • Labour Relations Act 66 of 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 13.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Can I still make a case of unfair labour practice if I have settled?

A4_b

In this article we will discuss whether, in the face of an agreement between an employer and an employee in terms of which an employee accepts a demotion to a lower position, the employee is nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.

The facts in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] can be summarised as follows: The employee worked as an Administrative Manager at Builders Warehouse (Pty) Ltd. She was informed by doctors that she was very ill and would most likely have to go to hospital frequently and take various types of medication. Over the next three years her absenteeism increased significantly and her employers became concerned as she was no longer able to do her job effectively, even when she was not absent, due to the side effects of her medication. Builders Warehouse (Pty) Ltd, after having discussions with the employee, suspended her pending an investigation into her capacity to undertake the functions of an Administrative Manager, taking into account her health and performance. Builders Warehouse (Pty) Ltd held an incapacity hearing and the external Chairperson ruled that, due to the employee’s excessive and increasing absenteeism, dismissal was the appropriate sanction. The Chairperson, however, offered her a demotion instead of a dismissal. The employee accepted this demotion in writing.

After this agreement between Builders Warehouse (Pty) Ltd and the employee was concluded, she obtained legal assistance and subsequently complained to the CCMA that Builders Warehouse (Pty) Ltd had committed an unfair labour practice by demoting her.

The question here is whether, in the face of an agreement between Builders Warehouse (Pty) Ltd in terms of which the employee accepted demotion to a lower position, she was nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.[2]

The arbitrator in the CCMA decided that because there was consent to the demotion, the CCMA did not have jurisdiction to hear the dispute. The employee then appealed to the Labour Court and once again to the Labour Appeal Court, of which the outcomes are set out below.

The Labour Court and the Labour Appeal Court looked at Section 186(2)(a) of the Labour Relations Act[3] in this regard, which states the following:

“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits.”

The Labour Appeal Court upheld the judgement in the Labour Court and found that although a binding contract comes into existence when employers and employees settle their differences by agreement, such an agreement does not mean that the CCMA does not have jurisdiction to hear the dispute. The fact that the parties have agreed that the employee accepts demotion is not a complete defence for the employer because the ambit of this unfair labour practice is wide enough to include the implementation of an agreement to accept demotion.[4] The Labour Appeal Court confirmed that the determination of whether a demotion took place, unlike the determination of dismissal, does not require an arbitrator to determine if there was consent or not.[5]

In conclusion, it is clear from the Builders Warehouse case that, although consent is a relevant issue in regard to the merits of a dispute regarding an unfair labour practice, it is not a jurisdictional prerequisite. This means that the CCMA does have the power to hear a matter relating to a demotion even though there was consent thereto.

Bibliography

  • Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC

Labour Relations Act 66 of 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 13.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Sexual harassment in the workplace

A3blThe idea of “the corporate workplace” has changed significantly in recent years and nowadays there are more women to be found in positions that were previously filled only by men. Unfortunately this has given rise to the issue of sexual harassment in the workplace. In this article we focus on what sexual harassment is and what someone can do if they are being subjected to it.

Both men and women can be victims of sexual harassment; however, it is more common for this type of harassment to be directed at women in the workplace. According to Section 6(3) of the Employment Equity Act[1] (EEA) harassment of an employee is a form of unfair discrimination and is prohibited on any of the grounds of unfair discrimination, which includes gender. The test for sexual harassment, as set out in Item 4 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Code), is whether the conduct is unwelcome, of a sexual nature, violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account the following factors:

  1. Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
  2. Whether the sexual conduct was unwelcome;
  3. The nature and extent of the sexual conduct; and
  4. The impact of the sexual conduct on the employee.[2]

There are three types of conduct that can constitute sexual harassment:

  1. Physical conduct such as touching;
  2. Verbal conduct such as innuendos; and
  3. Non-verbal conduct such as showing another person sexually explicit photographs.[3]

Certain types of sexual harassment are common in the workplace. One such type is quid pro quo harassment, which is where someone is forced to give in to sexual advances to avoid losing their job or a job related benefit. Another type is sexual favouritism where only those who submit to sexual advances can progress or receive benefits in the workplace. There is also sexual victimisation, where those who do not submit to sexual advances are prejudiced. Lastly we have the scenario where jokes, pictures or innuendos create a hostile working environment which need not be directed against one specific employee.[4]

According to Item 8 of the Code there is an obligation on employers to develop clear procedures to deal with sexual harassment, which should enable the resolution of problems in a sensitive, efficient and effective way. Section 60(1) of the EEA provides that conduct in contravention with its provisions must immediately be brought to the attention of the employer. This means as soon as is reasonably possible in the circumstances and without undue delay, taking into account the sensitive nature of sexual harassment, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace. The victim of the sexual harassment need not be the one to bring it to the attention of the employer; any other person who is aware of the sexual harassment may also do so.[5]

Once the sexual harassment has been brought to the attention of the employer the employer should consult all the relevant parties, take the necessary steps to address the complaint in accordance with the Code and the employer’s policy, and take all the necessary steps, which are set out in Item 8.3 of the Code, to eliminate the sexual harassment.[6]

A complainant or another person may choose to follow an informal procedure, the first of which is to explain to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her work. The second way of handling this is for an appropriate person to approach the perpetrator, without revealing the identity of the complainant, and explain that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable and interfere with their work.[7]

If a complainant does not find the abovementioned satisfactory then he or she can follow the formal procedure set out in an employer’s sexual harassment policy and/or collective agreement, which should outline with whom the employee should lodge a grievance, the internal procedures to be followed and time frames which will allow the grievance to be dealt with expeditiously.[8]

If the complainant is still not satisfied with the results a complaint of sexual harassment may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). It is important to note here that it is a disciplinary offence to victimise or retaliate against a complainant who in good faith lodges a grievance of sexual harassment.[9] 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Reference List:

Employment Equity Act, 55 of 1998

Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (4 August 2005)

A C Basson, M A Christianson, A Dekker, C Garbers, P A K le Roux, C Mischke, E M L Strydom: Essential Labour Law 5 ed (2009)

 

[1] 55 of 1998

[2] Item 4 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

(4  August 2005)

[3] AC Basson, MA Christianson, A Dekker, C Garbers, PAK le Roux, C Mischke, EML Strydom: Essential Labour Law 5

ed (2009) 223

[4] Basson et al: Essential Labour Law 5 ed (2009) 223

[5] Item 8.1 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[6] Item 8.2 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[7] Item 8.6 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[8] Item 8.7 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[9] Item 8.7 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

Step by step guide to easy UIF claims

A3blAlice recently lost her job. She is feeling very despondent since she has no income to provide for her family and cover her monthly expenses. She recalls that while she was employed she made monthly Unemployment Insurance Fund (UIF) contributions.

However, Alice has no idea how to claim from the UIF and whether she qualifies as a claimant.

  1. WHO CAN CLAIM FROM THE UIF?

All workers who contributed to the UIF can claim if they have been fired, if their contract has come to an end, or if their employer is bankrupt. Domestic workers who have more than one employer can claim if they lose their job with one of their employers or if an employer dies.

  1. WHO CANNOT CLAIM?
  • Persons who resigned or quit their jobs
  • Persons who are suspended from claiming due to fraud
  • Persons who do not report at set dates and times
  • Persons who refuse training and advice that may be given by UIF staff
  • Persons who receive benefits from the Compensation Fund or from an Unemployment Fund established under the Labour Relations Act
  1. WHEN CAN I CLAIM FROM THE UIF?

You can start claiming from the last day of employment until your UIF benefits are used up or you started working again. Your current contract must have expired before registering for UIF. Furthermore, you must claim within six months after your last day of employment.

  1. HOW DO I REGISTER FOR UIF BENEFITS?

Unemployed workers must apply for UIF benefits in person at their nearest labour centre. 

Step 1: Documentation

This step is of utmost importance if you want to claim your UIF successfully for the first time. It is important to have all the necessary documentation in order to avoid repeated trips to the labour centre. The required forms are available as PDF downloads at ezuif.co.za/uif-forms.

You need:

  • Your 13-digit bar-coded ID or passport
  • UI-2.8 for banking details(Notethatthis needs to be signed by your bank and be accompanied by a stamped bank statement to confirm your bank account details.)
  • Form UI-19 to show employment history. This form is to be filled in by your previous employer. (Notethat the Labour Department will check your last four years of work history to calculate your UIF benefit amount. Make sure you have all necessary declarations from previous employers dating back four years. If an employer has failed to issue you with a declaration, he must also fill out a UI-19 form.)
  • A workseeker form
  • Last two pay slips 

Step 2: Go to the nearest labour centre

Once you have all the documents, go to the nearest labour centre. You can find the address and telephone number of your nearest centre at http://www.labour.gov.za/contacts/contacts. Note that the average waiting period at the labour centre can be anything from two to six hours, so make sure you have enough time. There is a slight chance that the staff at the labour centre may ask unemployed workers to go for training or advice – this is within their rights and you will have to take their advice.

  1. HOW WILL I BE PAID?

Once you have registered for UIF benefits the staff at the labour centre will issue you with a UIF checklist. On this checklist you will find the address of the venue where you must sign for payment, as well as the date and time for your attendance. 

Step 1: Go to the signing venue

You must appear at the designated venue on the date and time stipulated in order to sign for your first UIF payment. It is important to be on time. Take the UIF checklist and your ID document with you.

Step 2: Sign the unemployment register and receive UI-6A forms

If you have successfully registered for UIF, your name will be read out from a list. You will be required to sign a register to mark your attendance and confirm that you are still unemployed. Collect all the UI-6A forms (one for each future signing). Keep all these documents in a safe place as you will need them every time you are due for a UIF payment. This whole process can take up to three hours. Your first payment will be paid into your bank account within two to four days after you have signed the register.

Step 3: Note your next signing date

Make sure you are aware of your future signing dates – they are printed on your UI-6A forms. Signing dates will be approximately four weeks apart. You will have to hand in the relevant UI-6A form every time you attend, so make sure you have it with you. Note that your application may be delayed and not yet processed by the date of your first signing. It is recommended that you call the relevant labour centre the day before going to the signing venue to ensure that your application has been processed. If your application has not yet been processed you do not need to go to the signing. Ask for the date of the next signing.

  1. HOW MUCH WILL I BE PAID?

The amount that you will be paid will depend on the amount of your monthly salary when you were employed.

Workers who earned less than R12 478 per month will receive approximately 36-56% of their average monthly salary for the previous four years; the higher the salary, the lower the percentage.

Workers who earned more than R12 478 per month will receive a fixed monthly benefit of approximately R4250-R4550.

How long you will be eligible to receive UIF payments depends on the length of time that you have contributed to the fund. You are eligible to receive one day’s worth of benefits for every six days that you had worked and contributed to the UIF over the previous four years. The maximum number of days you can claim for is 238. 

Note: You can calculate your UIF monthly payments by using the EZUIF calculator provided at: http://ezuif.co.za/2012-uif-benefits-calculator/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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