Thursday, October 31, 2013
Managing Poor Performance & Incapacity
Managing Poor Performance & Incapacity
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18 - 19 February 2014
Managing Poor Performance & Incapacity equips managers and supervisors with the knowledge and skills to investigate, counsel and deal with cases of poor performance, incompatibility, intermittent absenteeism, sick leave abuse, genuine incapacity and repeated minor misconduct.
This programme is targeted at team leaders and employee representatives.
Based on a proven system integrating medical referrals and professional counselling/rehabilitation with the corrective disciplinary requirements of the LRA, this programme takes a fresh look at discipline in the workplace.
Content
• Demonstrate an understanding of the legislation underpinning the
management of poor performance, absenteeism, sick leave,
incapacity and minor misconduct at the workplace.
• Apply a structured problem solving approach to dealing with
employee shortcomings in the workplace.
• Identify unacceptable employee performance and behaviour and counsel and/or reprimand an employee constructively.
• Refer an employee for professional counselling/medical assessment.
• Conduct a formal corrective interview with an employee and take
appropriate corrective action.
• Give recognition to an employee whose performance or conduct has improved.
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Monday, November 12, 2012
Labour Relations Amendment Bill 2012 -
By Gavin Stansfield, Director in the Employment practice at Cliffe Dekker Hofmeyr
The Labour Relations Amendment Bill 2012 is currently in the process of parliamentary debate. If passed, it is likely to come into effect towards the end of 2012 or the beginning of 2013. In the first of a series of articles, the most important proposed amendments shall be discussed as they are likely to affect most employees within South Africa.
The term "organisational rights" refers to those rights granted to a trade union within the workplace. They are governed by chapter 3 of the Labour Relations Act (“LRA”). The rights afforded to a trade union are dependent on their level of representativeness in the workplace. There are two levels of representativeness in the workplace: sufficient and majority representation. Although not specifically defined in the LRA, a union is regarded as being sufficiently representative if it enjoys anywhere between 15% and 50% membership of all employees within a workplace. A union which has attained sufficient representation is entitled to enter an employer's premises in order to recruit members or otherwise serve their members’ interests. In addition thereto, a sufficiently representative trade union is entitled to insist that an employer deduct from the wages of a union member union subscriptions or levies payable to that trade union which are paid over to the union directly.
In addition, if an employee happens to be an office-bearer of a sufficiently representative union, such employees are entitled to reasonable paid time off every year in order to carry out union functions. Majority unions (50% + 1 member within a workplace) enjoy all of the preceding rights, in addition to which they are entitled to appoint shop stewards, the number of which depends on the total number of employees employed within that workplace. This is a crucial right for majority unions as shop stewards act as the voice of the union within the workplace. In terms of the 2012 Amendment Bill, it is proposed that unions who have only reached sufficient representation within a particular workplace shall nonetheless be entitled to appoint shop stewards and to have access to certain information of the employer provided that no other trade union within that workplace has been granted majority status within the workplace. These “majority rights” lapse if the trade union concerned ceases to remain the most representative trade union within the workplace.
The practical effect of this is that unions will no longer have to achieve majority status within a workplace in order to demand the appointment of shop stewards and to exercise the right to information (s16 of the LRA) currently afforded only to majority unions.
This is without doubt a victory for labour as these rights are currently the exclusive preserve of majority unions. Supporters of the amendment argue that it is appropriate for minority unions to be afforded the rights in question.
Those not in favour of the amendments argue that the sections dilute the principle of majoritarianism and will increase competition and probably friction between trade unions at the workplace.
By Gavin Stansfield, Director in the Employment practice at Cliffe Dekker Hofmeyr
The Labour Relations Amendment Bill 2012 is currently in the process of parliamentary debate. If passed, it is likely to come into effect towards the end of 2012 or the beginning of 2013. In the first of a series of articles, the most important proposed amendments shall be discussed as they are likely to affect most employees within South Africa.
The term "organisational rights" refers to those rights granted to a trade union within the workplace. They are governed by chapter 3 of the Labour Relations Act (“LRA”). The rights afforded to a trade union are dependent on their level of representativeness in the workplace. There are two levels of representativeness in the workplace: sufficient and majority representation. Although not specifically defined in the LRA, a union is regarded as being sufficiently representative if it enjoys anywhere between 15% and 50% membership of all employees within a workplace. A union which has attained sufficient representation is entitled to enter an employer's premises in order to recruit members or otherwise serve their members’ interests. In addition thereto, a sufficiently representative trade union is entitled to insist that an employer deduct from the wages of a union member union subscriptions or levies payable to that trade union which are paid over to the union directly.
In addition, if an employee happens to be an office-bearer of a sufficiently representative union, such employees are entitled to reasonable paid time off every year in order to carry out union functions. Majority unions (50% + 1 member within a workplace) enjoy all of the preceding rights, in addition to which they are entitled to appoint shop stewards, the number of which depends on the total number of employees employed within that workplace. This is a crucial right for majority unions as shop stewards act as the voice of the union within the workplace. In terms of the 2012 Amendment Bill, it is proposed that unions who have only reached sufficient representation within a particular workplace shall nonetheless be entitled to appoint shop stewards and to have access to certain information of the employer provided that no other trade union within that workplace has been granted majority status within the workplace. These “majority rights” lapse if the trade union concerned ceases to remain the most representative trade union within the workplace.
The practical effect of this is that unions will no longer have to achieve majority status within a workplace in order to demand the appointment of shop stewards and to exercise the right to information (s16 of the LRA) currently afforded only to majority unions.
This is without doubt a victory for labour as these rights are currently the exclusive preserve of majority unions. Supporters of the amendment argue that it is appropriate for minority unions to be afforded the rights in question.
Those not in favour of the amendments argue that the sections dilute the principle of majoritarianism and will increase competition and probably friction between trade unions at the workplace.
Monday, August 13, 2012
Monday, October 31, 2011
Does maternity leave protect the employee?
Lately, our house has been filled with the blessing of baby sounds, little hands, precious feet and angel eyes! We have many friends that also had little angels enter their homes and it seems that baby talk has taken over the conversation at almost every gathering.
I have noticed from these conversations that most people had many questions regarding maternity leave and the rights and obligations seems unclear to many. I decided to use this topic for my next blog and share some tips and advice with you.
Let me start by saying, those of you who had maternity leave, thank your employer. I am serious! As a sole proprietor, I had to face the reality of no income whilst I chose to spend the first few months with my baby at home. I have had the benefit of paid maternity leave twice before, and I truly realised now what a huge benefit this was. To my previous employers, thank you for the luxury you granted me. I now work from home with my three children and attempt to build up my business again. The reality is, it is not easy doing it on your own and I seriously believe that more employees should be grateful to their employers for the benefits they receive.
Most people know that they are entitled to maternity leave. However, when a female employee becomes pregnant, a range of issues immediately confront both parties – most important of which include the effects of her pregnancy on her job and her absence from work both before and after the birth of her child.
It is in dealing with these issues in relation to maternity leave, that I realised the application of maternity leave principles seem unclear. I have decided to discuss some basic questions but also to include an example of a specific scenario. I hope this will give some of you (employers and employees) better insight to ensure the correct application of maternity benefits.
Some basic questions are:
Are you entitled to maternity leave? And if so, how much leave ...
The answer is yes. All female employees can take at least four consecutive months’ unpaid maternity leave (Section 25(1) of the BCEA). In practice, collective agreements between employers and trade unions and individual contracts of employment often address the
issue of maternity leave and the associated benefits. In some instances, these agreements mirror the provisions of the Basic Conditions of Employment Act (BCEA), but often they can be more generous.
Important: Chapter Three of the BCEA (which deals with all types of leave) doesn’t apply to:
• your employees who work for less than twenty four hours per month
• leave granted to your employees that is in excess of the minimum entitlement granted to your employees in terms of the BCEA. For example, if you grant your employees five consecutive months’ unpaid maternity leave, Chapter Three of the BCEA won’t
apply to the one month in excess of the statutory minimum.
Do you have to pay employees on maternity leave?Employers aren’t obliged by law to provide paid maternity leave (Section 25(7) of the BCEA).
It’s common for employers (especially larger employers) to provide their employees with benefits during their period of maternity leave. The amount of the benefits payable varies from company to company.
Can your maternity leave ever be reduced to less than 4 months?The bottom line is that the core rights in the BCEA cannot be reduced. Any collective agreement must be consistent with the Act. As maternity leave is a core right, no agreement may reduce the period of maternity leave granted to employees in terms of the BCEA
(although employees themselves often choose to return to work earlier than this).
Remember: Maternity leave is unpaid (Section 25(7) of the BCEA).
Should your job be kept open for you while you are on maternity leave?The right to return to the same or comparable job after pregnancy related absence is protected in South Africa. A dismissal includes the refusal to allow an employee to
resume work after she has taken maternity leave in terms of any law, collective agreement or her contract of employment (Section 186(c) of the Labour Relations Act).
A dismissal on the basis of pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair (Section 187 of the Labour Relations Act).
Also, if you offer an employee returning from maternity leave a lesser position than the one she held before, it would amount to unfair discrimination on the basis of pregnancy, which goes against the Employment Equity Act, or even a constructive dismissal (when you, as an
employer, cause the resignation of an employee because you have made continued employment intolerable).
When must the employer be notified that you will be taking maternity leave?For the employer to make arrangements regarding your e absence, she must notify you in writing (unless the employee is unable to do so) of the dates on which she intends to begin maternity leave and return to work (Section 25(5) of the BCEA). Your employee
must notify you:
• at least four weeks before she intends to begin maternity leave
• if it is not reasonably practicable to do so, as soon as is reasonably practicable.
Obviously there can be circumstances in which the employee doesn’t know in advance she will need to start her maternity leave earlier than was planned or envisaged, hence the reason for the last proviso (Section 25(6) of the BCEA).
Does an employee have to disclose her pregnancy when applying for a job?No – in the case of Thandi Mashava v Cuzen and Woods Attorneys (2000) 21 ILJ 402 (LC) the Court held that employees needn’t disclose their pregnancy to their employers, and that the dismissal of Thandi Mashava on the basis of deceit for withholding that information from the employer amounted to an automatically unfair dismissal.
What about adoption?Maternity leave (on whatever basis you ordinarily offer maternity leave) is also usually offered to female employees who adopt a new born or small baby and failure to do so may be considered discriminatory.
Due to the economic climate of the past few years, we have entered a long season of retrenchments, operational changes, optimisations, restructurings etc.
Many employees believe that they cannot be retrenched whilst on maternity leave.
Is this true, or can employees on maternity leave form part of a restructuring process? If the employer decides to retrench an employee who is on maternity leave, or who has just returned from maternity leave, the reasons must be genuine and may not be related to the pregnancy or the fact that you have taken maternity leave. The Employer can include the employee on maternity leave in the process and should not neglect the consultation obligations towards that employee.
ExampleYour company is undergoing a restructuring exercise. The employer consult with all affected employees, and after applying fair and objective selection criteria, a person who has just returned from maternity leave is dismissed for operational reasons. The reason for her dismissal in this case is genuine, as it has to do with the operational requirements of the business and not her pregnancy or leave. However, if you dismiss an employee for operational reasons simply because she has taken maternity leave – the reason for her dismissal won’t be genuine. If your decision to retrench is a sham, you risk having to compensate the employee with 24 months’ pay.
You may not discriminate against pregnant employees!! There are a number of legislative provisions that prohibit discrimination on the basis of pregnancy. These include:
• the Constitution, which prohibits direct and indirect discrimination on the grounds of pregnancy
• the Labour Relations Act in terms of which any dismissal of an employee on the grounds of
pregnancy or any other reason related to pregnancy constitutes an automatically unfair dismissal (see page L06/010)
• the Employment Equity Act, which prohibits direct and indirect unfair discrimination against any employee on the basis of pregnancy.
Should you require any assistance in relation to maternity leave application in your workplace, do not hesitate to contact me.
As always, yours in service,
Ilene
Tuesday, November 23, 2010
Employee privacy - what about it?
The issue of employee privacy featured high on my to do list this month. I had two clients who had a great deal to learn and a high price to pay because they did not understand the issue of employee privacy.
Firstly, my one client was dismissed because of the content of skype communications she had with her husband where she discussed her management and expressed her frustration that she experienced at work. She had signed an electronic communications policy and the Company claimed she breached the policy and dismissed her. Secondly, my other client, an employer, had to deal with a PA who sat on facebook and social webpages for hours at a time during working hours. The Employer had no policy in place and also discovered that the employee had been sending her confidential material via mail to friends and other contacts. Several downloads were made from websites and printed at work. This client had to spend a lot of time and money to correct this situation and to prevent this from happening again.
Whilst doing research on these two cases, I read that the Federal Cabinet in Germany has approved a draft law, which states employers can search for information about a job applicant online…but only on search engines or professional networking sites, not Facebook. This is because Facebook is a social, not professional, networking site, so the employer would be invading the applicant’s privacy.
I’m curious to see if South Africa will adopt a similar stance. The issue of employee privacy should be at the forefront of your mind, given the Protection of Personal Information Act .
Both my clients asked questions like, can an employer monitor private emails and Internet use, and are they allowed to monitor their private laptops and memory devices while they’re on company property?
As an employer, you must state in your employment contract or company policy that you have the right to monitor this. Furthermore, the employee must have signed that he/she agrees to this. If you don’t have signed consent, you may still be able to monitor activity if you have informed the employee you will, and it's for legitimate business purposes. The 'ROICA' legislation regulates this. This won't apply to private laptops where the employees may have an expectation of privacy, unless they have consented explicitly.
I strongly urge all employers to implement a policy that allows you to monitor electronic communications at the workplace and to which employees consent before you go ahead and please get all your employees to sign this policy!
It is important that staff acknowledge that they are aware of the Company’s IT Policy and that there is no guarantee or expectation of privacy on their part when using the Company’s IT systems and to this end, expressly waive any right to privacy that they may be entitled to when using the Comapny’s IT systems.
Expressly inform staff that any failure to observe and adhere to this Policy may, if applicable, result in the Company instituting disciplinary action against them, and if found guilty of such infringements this may lead to removal of their Internet privileges or dismissal, amongst other disciplinary sanctions, in terms of the Company’s Disciplinary Code.
It was sad to see how two individuals were affected negatively as a result of their failure to regard this issue in a serious light. Internet abuse and e-mail abuse is no laughing matter and if left unmanaged, it will have a detrimental effect on your profit and productivity.
If you do not have systems or policies in place to protect your business interest regarding internet and e-mail usage, you could face a serious challenge in terms of the Protection of Personal Information Act. And to all employees out there, don’t loose your job because you think the Company will not enforce their communications policy. It’s just not worth it!
For more information regarding this issue, please contact me. As always, I am happy to help.
Yours in service,
Ilene Power
Firstly, my one client was dismissed because of the content of skype communications she had with her husband where she discussed her management and expressed her frustration that she experienced at work. She had signed an electronic communications policy and the Company claimed she breached the policy and dismissed her. Secondly, my other client, an employer, had to deal with a PA who sat on facebook and social webpages for hours at a time during working hours. The Employer had no policy in place and also discovered that the employee had been sending her confidential material via mail to friends and other contacts. Several downloads were made from websites and printed at work. This client had to spend a lot of time and money to correct this situation and to prevent this from happening again.
Whilst doing research on these two cases, I read that the Federal Cabinet in Germany has approved a draft law, which states employers can search for information about a job applicant online…but only on search engines or professional networking sites, not Facebook. This is because Facebook is a social, not professional, networking site, so the employer would be invading the applicant’s privacy.
I’m curious to see if South Africa will adopt a similar stance. The issue of employee privacy should be at the forefront of your mind, given the Protection of Personal Information Act .
Both my clients asked questions like, can an employer monitor private emails and Internet use, and are they allowed to monitor their private laptops and memory devices while they’re on company property?
As an employer, you must state in your employment contract or company policy that you have the right to monitor this. Furthermore, the employee must have signed that he/she agrees to this. If you don’t have signed consent, you may still be able to monitor activity if you have informed the employee you will, and it's for legitimate business purposes. The 'ROICA' legislation regulates this. This won't apply to private laptops where the employees may have an expectation of privacy, unless they have consented explicitly.
I strongly urge all employers to implement a policy that allows you to monitor electronic communications at the workplace and to which employees consent before you go ahead and please get all your employees to sign this policy!
It is important that staff acknowledge that they are aware of the Company’s IT Policy and that there is no guarantee or expectation of privacy on their part when using the Company’s IT systems and to this end, expressly waive any right to privacy that they may be entitled to when using the Comapny’s IT systems.
Expressly inform staff that any failure to observe and adhere to this Policy may, if applicable, result in the Company instituting disciplinary action against them, and if found guilty of such infringements this may lead to removal of their Internet privileges or dismissal, amongst other disciplinary sanctions, in terms of the Company’s Disciplinary Code.
It was sad to see how two individuals were affected negatively as a result of their failure to regard this issue in a serious light. Internet abuse and e-mail abuse is no laughing matter and if left unmanaged, it will have a detrimental effect on your profit and productivity.
If you do not have systems or policies in place to protect your business interest regarding internet and e-mail usage, you could face a serious challenge in terms of the Protection of Personal Information Act. And to all employees out there, don’t loose your job because you think the Company will not enforce their communications policy. It’s just not worth it!
For more information regarding this issue, please contact me. As always, I am happy to help.
Yours in service,
Ilene Power
Wednesday, September 1, 2010
Do the smoking laws apply to your business?
The answer – in almost all cases a resounding YES
As employers, we are not always 100% sure which new laws create any liabilities or responsibilities for us. You may think that you only have a small business, employing perhaps only one or two people, both of whom may be smokers. Fact is – smoking is prohibited in all public places! This includes any indoor, enclosed or partially enclosed area that is open to the public – yes, this includes a workplace!
The new tobacco law (Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999) ) gazetted on Friday, 29th September 2000 by the South African Department of Health was passed to protect the rights of all South Africans to breathe clean air by controlling smoking in public places and to ensure a healthy environment for daily activities –from work to travel and public events.
What does this mean for employers? Now you have an ethical, moral and legal responsibility to protect the environment of all people in your workplace by establishing a smoke-free workplace, even if you work from home or have a small business where there are only one or two smokers.
Further, employers must have a written policy on smoking in the workplace and you are also totally free to prohibit smoking in the workplace. You are required to display signs and make announcements to inform any person who enters an area where smoking is prohibited or of the prohibition. So make sure you source the appropriate signs to display prominently and amend your existing smoking policy and rules in the workplace to ensure they comply with the amended smoking act.
Non-compliance with the tobacco act: any employer failing to comply with the obligations stated above, imposed by the act is liable for a fine not exceeding R100 000, similarly any employee that fails to comply with the regulations may be liable for a fine not exceeding R50 000.
If we can assist you in any way to compile your smoking policies or any other workplace policies, please call us for a consultation – 021 8515493 / 078 802 9708.
Remember – you may completely prohibit smoking and yes, you do need a policy!
Wishing you great success,
Ilene Power
As employers, we are not always 100% sure which new laws create any liabilities or responsibilities for us. You may think that you only have a small business, employing perhaps only one or two people, both of whom may be smokers. Fact is – smoking is prohibited in all public places! This includes any indoor, enclosed or partially enclosed area that is open to the public – yes, this includes a workplace!
The new tobacco law (Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999) ) gazetted on Friday, 29th September 2000 by the South African Department of Health was passed to protect the rights of all South Africans to breathe clean air by controlling smoking in public places and to ensure a healthy environment for daily activities –from work to travel and public events.
What does this mean for employers? Now you have an ethical, moral and legal responsibility to protect the environment of all people in your workplace by establishing a smoke-free workplace, even if you work from home or have a small business where there are only one or two smokers.
Further, employers must have a written policy on smoking in the workplace and you are also totally free to prohibit smoking in the workplace. You are required to display signs and make announcements to inform any person who enters an area where smoking is prohibited or of the prohibition. So make sure you source the appropriate signs to display prominently and amend your existing smoking policy and rules in the workplace to ensure they comply with the amended smoking act.
Non-compliance with the tobacco act: any employer failing to comply with the obligations stated above, imposed by the act is liable for a fine not exceeding R100 000, similarly any employee that fails to comply with the regulations may be liable for a fine not exceeding R50 000.
If we can assist you in any way to compile your smoking policies or any other workplace policies, please call us for a consultation – 021 8515493 / 078 802 9708.
Remember – you may completely prohibit smoking and yes, you do need a policy!
Wishing you great success,
Ilene Power
Friday, June 18, 2010
Don't get caught on the back foot
My client got a nasty surprise the other day, and so did I. Usually I love surprises, but this one, was not pleasant.
A surprise visit by the Bargaining Council agent, turned into a nightmare when the agent made a big deal out of something my client thought was trivial. In fact, he thought that the requirements did not apply to him. One visit and one inspection resulted in 5 charges and an award against him that could criple his business. Ouch... that hurt! Now, we have to approach the Labour Court and attempt to review the process. It's a lot of money and time, stress and effort.
This incident made me understand why some sole proprietors out there feel that it's impossible to obey the law. How do you give attention to something that seems pretty insignificant when you have so much to deal with?
I'd like to help you say goodbye to those labour headaches out there and make it easy for you to follow the law and apply to law to the benefit of yourself, your staff and your pocket. Many professing businessmen and women appear blissfully unaware of their obligations, or they think some requireents don't apply to them because they employ only 5 or 10 people.
Something very trivial is displaying summaries of the Employment Equity Act, the Basic Conditions of Employment Act, the Occupational Health and Safety Act and the Skills Development Act. Like I said, you might think this is pretty insignificant but, its going to be a big thing to the inspector if you are not doing it. According to news reports, the Department of Labour is going to become even stricter on employers who don't comply with labour alws. If employers who aren't doing the simple things thought they might get into trouble before, I have bad news for you. Department of Labour will be taking no prisoners when it comes to employers who are not complying.
My first business tip........ you need to display the BCEA, EEA, OHSA, and Skills Development Act somewhere your employees can read them. It could cost you if you don't. And, don't give an inspector an excuse to give you a fine. Simply order these posters asap - they cost about R175.00 each, certainlly less than the fine you'll have to pay.
It really couldn't be easier to make sure you are doing things properly and help relieve the stress of a visit from the labour inspector.
happy to help,
Yours in service,
Ilene Power
www.ilenepower.co.za
A surprise visit by the Bargaining Council agent, turned into a nightmare when the agent made a big deal out of something my client thought was trivial. In fact, he thought that the requirements did not apply to him. One visit and one inspection resulted in 5 charges and an award against him that could criple his business. Ouch... that hurt! Now, we have to approach the Labour Court and attempt to review the process. It's a lot of money and time, stress and effort.
This incident made me understand why some sole proprietors out there feel that it's impossible to obey the law. How do you give attention to something that seems pretty insignificant when you have so much to deal with?
I'd like to help you say goodbye to those labour headaches out there and make it easy for you to follow the law and apply to law to the benefit of yourself, your staff and your pocket. Many professing businessmen and women appear blissfully unaware of their obligations, or they think some requireents don't apply to them because they employ only 5 or 10 people.
Something very trivial is displaying summaries of the Employment Equity Act, the Basic Conditions of Employment Act, the Occupational Health and Safety Act and the Skills Development Act. Like I said, you might think this is pretty insignificant but, its going to be a big thing to the inspector if you are not doing it. According to news reports, the Department of Labour is going to become even stricter on employers who don't comply with labour alws. If employers who aren't doing the simple things thought they might get into trouble before, I have bad news for you. Department of Labour will be taking no prisoners when it comes to employers who are not complying.
My first business tip........ you need to display the BCEA, EEA, OHSA, and Skills Development Act somewhere your employees can read them. It could cost you if you don't. And, don't give an inspector an excuse to give you a fine. Simply order these posters asap - they cost about R175.00 each, certainlly less than the fine you'll have to pay.
It really couldn't be easier to make sure you are doing things properly and help relieve the stress of a visit from the labour inspector.
happy to help,
Yours in service,
Ilene Power
www.ilenepower.co.za
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