How do you actually write “Mr … was lazy and unreliable” in a legally correct way when giving a reference? And in such a way that the employee cannot sue you later! Believe it or not:
Even a “!” in the wrong place may be the reason that you lose a case at the CCMA. The frustrating thing is, it’s exactly such petty errors and similar loopholes in the labour law that mean employers lose 51% of all CCMA cases.
These technicalities don't apply to references only, but also to written warnings and dismissals.
But how do you dismiss correctly? How do you make a dismissal stick, even if it goes to the CCMA?
Simply read on, for your own benefit, to see how you can successfully effect dismissals that are 100% legally watertight and will hold up at the CCMA. You’ll find a selection of the most important issues surrounding dismissals, taken from the Labour Law for Managers loose leaf service. We show you how you can justify your dismissals and protect your business completely. 29 experienced labour law consultants give you hands-on advice on the right strategy for making your dismissals stick.
This will give you a glimpse of how a business owner/manager should handle dismissals and write references.
The comprehensive Labour Law for Managers Loose Leaf Service gives you all the details you need for maximum protection in labour-related problems. You will find, for example:
- Information on the problem areas managers have to handle in the workplace daily, and appropriate solutions
- Valuable advice for employers, based on the ever-changing legislation
- Sample contracts, dismissals and warning letters, etc.
- Numerous practical checklists
How can you benefit from this practical handbook?
FREE: See for yourself how valuable this product is to you as an employer. It’s clearly different from other jargon filled, technical products on the market. Order it today and I'll give you a 90-day money-back guarantee. You will definitely find it worthwhile, even if you have a labour lawyer. It’s simpler, faster and much cheaper to look up something than to wait until your lawyer calls you back.
We wish you all the best in your investigation of these new labour strategies.
Lizle Louw, Editor-in-Chief
PS: If you reply quickly, you will also receive an invaluable copy of "Say You're Fired and Make it Stick!" In this groundbreaking booklet, you'll find out why you shouldn't insert long notice periods into employment contracts; the legally justified reasons you can use for dismissing an employee; all bargaining council contact numbers; and much more.
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Employment contracts: what the law says you must do
By Ivan Israelstam
You must give your employees, in writing, the terms and conditions of their employment. This document can take the form of a letter of appointment, or you can create a more formal contract of employment – the form doesn’t matter it’s the content that’s important. Getting your employee to sign the document avoids disputes about whether or not it was given and what it contains. You must do this when the employee starts employment and you must retain the document for at least three years after termination of the employment relationship (Section 29 of the BCEA).
You must also update this employment document and provide the employee with a new copy when:
- the law changes
- you and your employee agree to changes in the terms and conditions
- you increase the employee’s pay or benefits (this you could do in a supplementary letter).
TIP: Better late than never! Check all your personnel records and draw up the employment documents now, even if your employees have been working for you for years.
Even part-time staff must have a contract
This law applies to you if your employees are temporary or part-time, even if they:
- have a fixed employment period, or
- only work one day a week, or
- only work every weekend, or
- only work half day.
In other words, anyone who qualifies as an ‘employee’ should receive this document from you (refer to chapter E03 in Labour Law for Managers loose leaf service).
3 Easy steps to protect yourself from legal comebacks
The South African labour laws offer your employees protection, but they also allow you a degree of flexibility in what you agree with your employee – so you need to be proactive and protect yourself.
Do this by taking these three steps today:
Design an employment agreement (whether it’s in the form of a contract or a letter) that complies with the law, but fits with your business requirements.
Make it a requirement for the selected job applicant to sign the contract BEFORE commencing employment
Explain (with the aid of an interpreter if necessary) the contents of the contract to the employee/applicant in a language he understands. This is required by law.
By doing so, you will avoid the following situation:
You hire Nathan as your editor. He starts work on Monday without signing his employment contract. You ask him on Thursday to sign the document, but he refuses because he doesn’t agree with the restraint of trade clause. You threaten to cancel the contract. He threatens to go to the CCMA because, having started work, he has automatically become your employee.
In this situation Nathan is right – you can’t cancel his contract. If you want him to sign, you will have to take out the restraint clause. Rather ensure Nathan signs the contract – including the restraint of trade clause – before you appoint him or he commences employment. If he refuses to accept the terms of employment, you don’t have to employ him, because he has neither signed the contract, nor begun work.
As South African labour laws offer your employees more protection than they offer you, you need to be proactive and protect yourself!
By law, there are 17 elements that must be contained in the employment contract. Protect your business by including another 9 vital points in the contracts. Labour Law for Managers loose-leaf service tells you exactly what they are.
You have to dismiss an employee, but do you know how?
By Ivan Israelstam, CEO of Labour Law Management Consulting, and DerekJackson, labour law consultant
Legally, dismissals are either 'fair' or 'unfair'… According to the Labour Relations Act, there are only three reasons for dismissal that are 'fair'. And even if you dismiss with due cause, if you don't follow the correct procedure, you'll end up at the CCMA – for sure!
3 Grounds for fair dismissal
Conduct of the employee
Capacity of the employee (his ability to do his job)
Operational requirements of your business (retrenchment)
The above three reasons for dismissal form the basis of 'substantive fairness'.
However, if you dismiss someone for fair reason, but fail to follow procedure, the dismissal will still be found to be unfair.
Don't get done on technicalities!
In a case brought before the CCMA, the employee was a manager for a security firm. He testified he had been held up by armed robbers at the Qwa-Qwa branch of his employer's company, where he was robbed of money and a company vehicle.
He subsequently opened a criminal case at the local police station. Five days later, he phoned the police station to enquire about the progress of the case. The police told him to wait where he was, at the premises of the employer.
The police arrived a short while later and arrested the employee, presumably in connection with the alleged robbery. The employer then dismissed the employee on the spot.
In the criminal case, the employee was found not guilty, and he then returned to work but his employer confirmed his dismissal.
The law favours the employee!
The CCMA Commissioner held that the dismissal was unfair, because the employer didn’t dispute the employee's testimony at the CCMA arbitration hearing, and in addition, dismissed the employee without a disciplinary hearing.
In other words, the employer couldn't show good cause (substantive fairness) and hadn't followed the correct procedure.
The Commission awarded the employee 12 months' salary as compensation.
This is a classic case of what happens when an employer ignores the very basic requirements in any disciplinary procedure. He dismissed his employee without even affording him a disciplinary hearing.
5 Vital elements of substantive fairness
Warning: The dismissal should pass (and you must prove) all of the following tests to ensure substantive fairness:
- The accused employee did commit the misconduct.
- The employee knew or should have 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.
Checklist: Disciplinary hearing
6 Key elements of an effective and legally compliant disciplinary hearing
- Investigate and prepare your case thoroughly before the hearing
- Choose an unbiased and skilled chairperson
- Ensure the accused is given every chance to prepare and defend his case
- Base the outcome on facts
- Ensure the penalty is appropriate to the offence
- Record the hearing so you can prove you complied with the law
Procedural fairness is where it gets tricky…
Refer to the Labour Law for Managers loose leaf service for more details on when to give warnings, and when they're not needed; how to present evidence at a disciplinary hearing; finding a verdict based on the 'balance of probabilities'; aggravating and mitigating circumstances; dealing with the appeal; and so much more.
Including important amendments to the law and new case law
You receive unlimited usage rights for all sample contracts and additional agreements!
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Important reasons why you may need to dismiss
You want to reduce costs... So you decide to retrench
When a Labour Court judge presides over a retrenchment case brought by your employee (or a trade union on behalf of your employee), he must look at a number of factors when deciding whether you retrenched the employee fairly:
4 Factors that determine fair retrenchment
Whether you had a sufficient reason for the retrenchment
Whether you used a fair criterion when choosing the employee to be retrenched
Whether you consulted fully and in good faith with the employee or his trade union before making the retrenchment decision
Whether you disclosed to the employee or union all the information to be used for purposes of consulting on retrenchment
The ugly consequences of unfair dismissal:
In a case brought before the Labour Court, it found that the retrenchment was unfair. The employee, Mr Manyaka, had been a computer operator. Before he was retrenched the employer hired another employee into a new computer operator post, but at a higher level.
Sick leave – when do you NOT have to pay?
An employee is entitled to 30 days’ paid sick leave if he works five days a week, and 36 days’ paid sick leave if he works six days a week.
You don’t have to pay an employee for sick leave if the period of absence is longer than two consecutive days, or if he has been absent on more than two occasions during an eight-week period, unless he gives you a valid medical certificate from a registered medical practitioner.
The Court found that the employer, instead of retrenching Mr Manyaka, could have trained him for the higher level computer operator post. The Court therefore reinstated the employee with back pay and granted costs against the employer (Manyaka vs Van de Wetering Engineering 1997 11 BLLR 1458).
Insubordination vs insolence
Refusal to obey an instruction versus “just plain bad attitude”
It’s easy to confuse the two, because in practice, they frequently occur simultaneously. Insolence is disrespectful behaviour towards the employer. Insubordination is the refusal by an employee to obey a lawful and reasonable instruction from his superior.
Tip: If an employee is both insubordinate and insolent, the allegations forming the basis of his disciplinary hearing to be convened must include two charges, i.e. insubordination and insolence. This will strengthen your case, should you wish to dismiss the employee.
Not all cases of insubordination justify dismissal!
If the employee’s refusal doesn’t have serious or significant negative consequences for the employer, a written or final written warning would be more appropriate. The Code of Good Practice: Dismissals, stresses that only gross insubordination warrants dismissal on a first offence.
One scenario where you may be able to dismiss (and there are at least six other scenarios outlined in the Labour Law for Managers loose leaf service) is in circumstances where the employee makes it clear that he has no intention of ever complying with future instructions.
If you follow the correct procedure, you can win your case!
Case example: The employer charged and dismissed the employee for gross insubordination in that she failed to comply with the company clocking-in procedure, which obliged employees to clock in and out when taking tea breaks.
The employee conceded that she was aware of the company rule requiring employees to do so. She had received a prior final written warning for the same offence. The dismissal was held to have been fair (SACCAWU obo Ngobese vs Pick‘n Pay KN20877-02).
What is desertion?
Desertion occurs when an employee doesn’t come to work without taking leave and without the intention of returning to work OR without informing you of the reason for his absence and without the intention of returning to work. However,
the problem is you don’t always know whether he intends to return. For this reason you must implement a desertion procedure designed to protect your business (see sample policy in the Labour Law for Managers).
Abuse of email/Internet facilities
Your communication systems are central to the effectiveness of your business, but the use of the Internet has become a huge problem, with many employees abusing this business tool. The potential consequences for you, the employer, are dire! This could cost you thousands of rands in lost working time, legal expenses and damaged electronic systems.
‘Privacy’ can be a thorn in your side!
Because of the legal protection of an employee’s right to privacy, you need to tread very warily when designing effective management tools of your e-communications system. However, there are actions you can take, which we cover in chapter E02 in Labour Law for Managers:
- Permit you to inspect emails sent or received through your computer facilities
- Reduce the abuse of email and Internet facilities
- Reduce your legal risk when employees send out offensive emails, or emails that could bind your company legally
- Reduce the risk of computer viruses invading your computer system.
Dismissal from A to Z
The following reasons for dismissal are described in detail in Labour Law for Managers – Practical Handbook:
- Alcohol addiction & abuse
- Breach of restraint of trade agreement
- Email/Internet abuse
- Failure to observe security and safety regulations
- Gross incompetence
- Gross negligence
- Illegal striking
- Poor performance
- Refusal to work
- Sexual harassment
- Sleeping on duty
- Time keeping
Strikes can cripple your business – find out how to prevent them
By Ivan Israelstam, CEO of Labour Law Management Consulting
Strikes can result in loss of productivity, angry customers, financial losses, injury, damage to property and soured employee relations. Find out how to minimise and deal with strikes at your workplace.
Who has the right to strike?
All employees have the right to go on strike.
This right springs from the constitutional right to protest and engage in trade union activity (Chapter 4 of the LRA 66 of 1995, and Section 23 of the Constitution of South Africa No. 109 of 1996).
Warning: Employees do not have to be part of a trade union to go on strike. Previously, for a strike to be legal, 50% + 1 of your employees first had to vote in favour of it. But this requirement for a majority ballot has been scrapped. Also, the concepts of legal and illegal strikes have been scrapped. Instead, we now have the concepts of protected and unprotected strikes.
Warning: You can never dismiss employees for going on a protected strike because the employees are ‘protected’ by law from dismissal (Section 67(4) of the LRA). In fact, such a dismissal will be regarded as automatically unfair (Section 187 (1) (a) and (b) of the LRA).
Make 100% sure you know whether your employees’ strike is protected or unprotected!
If you incorrectly assume that the strike is unprotected and you dismiss the strikers, the cost to your business could be huge.
If the Labour Court finds the strike to have been a protected one, not only will you have unfairly dismissed your workforce, but the dismissal may be found to be automatically unfair. This means you may have to:
- Pay each dismissed employee up to two years’ remuneration in compensation, or
- Reinstate them with full back pay calculated from the date of the dismissal.
12 Steps on how to deal with protected strikes
Step #1: Make absolutely sure the strike is a protected one. This is because you cannot use court interdicts or dismissals to deal with protected strikes.
Step #2: Make sure the employees understand why you are sticking to your position. Meet with them or issue notices explaining the rationale of your decision on the matter. Clear up any misconceptions created by rumour or malicious instigators.
Step #3: Negotiate: Compromise on those demands that are fair and you can afford to compromise on.
For example, consider agreeing to shorten the working hours of those employees not directly involved with production.
Step #4: One option is to sit it out. In other words, let the employees strike and continue with your business. You can only consider doing this if you:
a) are definitely not in a position to give into any of the strikers’ demands;
b) have been unable to settle the dispute through negotiation as per steps 1 and 2 above;
c) are sure you have made reasonable counter proposals, which the strikers have rejected. That is, even if you’ve tried to negotiate, you should relook at whether your proposals are reasonable or could be improved;
d) are in a strong financial position and can keep production going.
Step #5: You have the right to take industrial action known as a 'lock-out'.
Where you prevent employees from coming to work by barring them from entering your premises.
Lock-out the strikers only if this is really necessary to prevent damage, violence or obstruction of operations. An employer has the right to lock-out its employees only after it has followed the above procedures required for a protected strike. Only then will it be a protected lock-out.
You can also lock them out to compel them to accept a demand.
Step #6: Bring in replacement labour where this is practical. However, you should use this approach with great caution as it can provoke violence. You'll need to provide in advance for protective security to prevent attacks on the replacement workers.
Step #7: Temporarily evacuate non-strikers if they are in danger.
Note: You'll probably have to pay the non-strikers if you evacuate them.
Step #8: Pay special attention to protecting lives and potentially dangerous or strategic installations such as fuel depots or electrical generators.
Step #9: Do not discipline or dismiss any employees for having gone on a protected strike.
Step #10: Avoid provoking the strikers unnecessarily, e.g. do not taunt them by calling them names or doing a mock toyi-toyi.
Step #11: Deal with sabotage, blockades, picketing or other disruptive or prohibited conduct during strikes in a firm but restrained manner. You may need to bring in police or security personnel. Try to do so in such a way that their presence is preventive. Give instructions that no excessive force is to be used.
Step #12: Never pay employees for the period they were on strike! The employees are allowed to strike for as long as they want, but will be unable to hold out forever because of the loss of income.
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9 Golden rules of Performance Appraisals
By Len Segal, Director, Executive Placements
It's your direct responsibility to see that performance appraisals happen – it's something that may not be delegated. Only you can adequately assess your employee’s performance.
It focuses on the individual’s performance, which is measured against the standards set out in the job description.
It focuses on proven performance, not potential.
A performance appraisal is never a psychological appraisal, nor should psychologists be allowed to draw up the appraisal document. It's based solely on the job description.
NEVER reward poor performance.
If it can’t be measured, then it can’t be managed. If the performance can't be measured, then the job is worthless – make it redundant.
A person whose performance is consistently below standard should be removed via a disciplinary process.
Appraisals should be viewed retrospectively, because emphasis is placed on what has occurred in the past. It’s pointless trying to appraise what might not have been done.
Discussion of performance is separate from a salary review. The appraisal should occur at least three months before the salary review. This gives the employee time to get back on track, should it be necessary.
Forget the paperwork – it isn’t necessary!
Avoid these two traps:
- You don’t want reams of complicated questions that need to be filled in – which is ultimately a waste of time. You undoubtedly have little time to waste. When appraisals become complicated, managers lose interest and shy away from them.
- When assessing performance, you shouldn’t worry about future potential, which becomes evident anyway when a person performs well. Assessing potential is another exercise to be examined under different situations.
18 Discriminatory selection practices – avoid them!
If you're not careful, you could be found guilty of unfair discrimination on any one of the 18 grounds listed below:
- Political opinion
- Trade union affiliation
- Marital status
- Family responsibility
- Ethnic or social origin
- Sexual orientation
- HIV status
The burden of health and safety provisions rests on you!
By Cynthia Hayward, Labour Relations lecturer, Peninsular Technikon
The law stipulates that the employer must provide first aid equipment and services to employees who are injured at work. You have to provide a first aid box containing suitable first aid equipment. Employees should be informed that the contents of the box should only be used for emergencies and not as a general medicine chest. You must display a sign that indicates where the box is kept.
MINIMUM contents of the first aid box:
Antiseptic, such as TCP (100ml)
Swabs for cleaning wounds
Clean cotton wool (100 g)
10 Squares of sterile gauze
1 Pair of tweezers (for splinters)
1 Pair of scissors (minimum size 100 mm)
1 Set of safety pins
4 Triangular bandages
4 Roller bandages (75mm x 5m)
4 Roller bandages (100mm x 5m)
1 Roll of elastic adhesive (24mm x 3m)
1 Non-allergenic adhesive strip (25mm X 3m)
1 Packet of adhesive dressing strips, 10 assorted sizes
4 First aid dressings (75 x 100mm)
4 First aid dressings (150 x 200mm)
2 Pairs of disposable splints
2 Pairs of large disposable latex gloves
2 Pairs of medium disposable latex gloves
2 CPR mouthpieces
What information will you find in the Labour Law for Managers – Practical Handbook?
Here are just SOME of the topics and issues covered in the Handbook:
- 10 Clauses you must include in your employment contracts
- How to reduce absenteeism and deal with deserters
- All your questions answered about leave
- How to deal with probation effectively and legally
- The A-Z of disciplinary hearings: Investigation, notification, preparation, suspension, evidence, legal representation and more
- How to implement a disciplinary process that increases performance and not litigation: Sample warnings, codes of conduct, levels of offence, types of discipline, sample policy and more
- What you can and can’t ask in an interview
- The legal dos and don’ts when advertising for a position
- Your 6-step employment equity plan
- What to do when a grievance is reported
- How to deal with trade unions
- How to prevent and prepare for strikes, and deal with a strike misconduct
- Bargaining council, CCMA, SETA and Department of Labour contact details
All tips, recommendations and information in the Labour Law for Managers loose leaf service are 100% legal, and checked by 2 independent consultants.
In each case you'll receive:
- Practical advice explained in simple English;
- Step-by-step instructions;
- Proven sample contracts and letters;
- Real life case studies; and
- Each and every item referenced and justified.
With the Labour Law for Managers loose leaf you will find:
- What the pros and cons are of belonging to a bargaining council;
- How to reduce absenteeism;
- Step-by-step instructions on how to conduct yourself at conciliation and arbitration hearings to emerge successful;
- Which disputes are arbitrable and which are not;
- What your rights are as a manager with regards to employee privacy;
- All the amendments to the LRA and how they affect you;
- The difference between fair and unfair dismissals;
- How to implement a disciplinary process that increases performance and NOT litigation;
- Whether sexual harassment is a form of discrimination;
- What truthfully constitutes Affirmative Action and how to implement it to achieve your company's Employment Equity objective;
- The impact of HIV/Aids on your business;
- What you can and can't ask in an interview;
- Skills development- how to avoid paying hefty penalties;
- And much more...
Our Panel of Experts
Lizle Louw (BCom, LLB)
Editor-in-Chief. Lizle is an admitted attorney and conveyancer. She is a director at Edward Nathan Sonnenbergs in the employment law department. Lizle specialises in employment law, occupational safety and mine health and safety. She acts for a diverse range of clients in the mining and retail industries. Lizle’s general practice includes litigation in the CCMA, Bargaining Councils, Labour Court and Labour Appeal Court, drafting of employment and safety related policies and training of line managers on all employment related matters. Lizle holds the following qualifications: BComm Law (University of Johannesburg) LLB (University of Johannesburg) Certificate in International Criminal Law (University of Antwerp)
- Ivan Israelstam (BA Hons., Adv Dip (IPM))
- Alan Rycroft (BA, LLB, LLM (London))
- Barney Jordaan (BA LLB (cum laude) and Doctorate in Law (LLD))
- Des Squire
- Anton Steenkamp (BA, LLM, LLM(Pret), LLM (summa cum laude) (Notre Dame, USA)
- Penny Bosman (BA, LLB (cum laude))
- Liezl-Mari Mouton
- Lee-Ann Randall (BSc Occ Ther, MA, Cert Health Ec, Adv Dip Voc Rehab)
- Ebrahiem Abrahams
- Dale Hutchison (BCom, LLB (magnacum Laude), PhD (Cambridge)
- Helen Wilsenach
- Nicky van der Westhuizen (BCom, LLB)
- Matthews Dikane
- Gill Loveday (BA, B.Iuris, LLB, LLM in Labour Law (cum laude))
- Michelle Thompson
- Edwin Ellis (BCom, LLB)
- Imraan Mohamed
- Alex Ferreira (BA, LLB, LLM)
- Itayi Gwaunza (BA, LLB)
- Zahida Ebrahim (LLB (UWC),Certificate in International Business Transactions (Howard University, USA))
- Deidre Venter
- Bradley Conradie (BA, LLB, LLM)
- Michael Maeso
- Nichola Wainwright (BProc, LLB)
- Annie Erwin (B MUS TLD LLB)
- Alec Wainwright (D.Litt et Phil)
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- All tips, recommendations and information in Labour Law for Managers are 100% legal, and are checked by 2 independent consultants
- You’ll receive the loose leaf binder with 500 pages of practical information and in each section you will receive:
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- Step-by-step instructions
- Checklists to make sure you haven’t forgotten anything
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- Many immediately understandable examples
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- FREE gift: When you order Labour Law for Managers, you will receive "Say You're Fired! And Make It Stick"
- Sample letters of notice
- Why you shouldn’t insert long notice periods into employment contracts
- The legally justified reasons you can use for giving an employee notice
- All the bargaining councils contact numbers
- And much more...
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