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Labour Complexity

CCMA – Against The Odds

Play it safe and talk to the experts about labour law to avert costly disputes.

Entrepreneur

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South Africa’s labour laws are complex and tend to favour the employee, making life tough for any business that feels the need to dismiss staff, for whatever reason. The mistake many small businesses make is not realising that labour laws apply to all types of employers, not just big business.

To gain an understanding of the numerous pitfalls confronting business, Entrepreneur spoke to Ivan Israelstam, a specialist in the field. Israelstam’s career spans 27 years in labour law and industrial relations; twelve of these as a litigator at the Commission for Conciliation, Mediation and Arbitration (CCMA) and four as a CCMA commissioner. He writes numerous labour law columns in major publications and has authored several labour law books.

Israelstam says that a key error made by SMBs is that they seem to think that if they dismiss an employee, they can repair the problem by paying the employee off; however, the default remedy for unfair dismissal is full reinstatement to the job often with full back pay.

“The answer to this, and all the other problems I will outline, is to simply pick up the phone before acting against an employee and spend a few minutes talking to a labour expert, as this will be cheaper than making the mistake first and turning to the expert later,” he says. “A vital piece of advice I can give employers is never to fire someone while you’re angry – think things through first, otherwise you may be setting yourself up for some serious legal troubles.”

He says that it is important to be aware that anytime you consider the termination of someone’s employment, there is a specific legally required procedure to follow, dependent on the type of dismissal.

“It is for this reason SMBs should contact a reputable expert in the field, as the expert will be able to help you draw up a disciplinary code and procedures, as well as employment contracts, performance standards and so on. I don’t believe it is possible to run a business successfully in the long-term without this sort of input.”

Israelstam points out that should you dismiss someone, you have to be able prove that no reasonable employer could continue such a working relationship. Also, he says that once a case goes to the CCMA, failing to use an expert representative will be detrimental, since arbitration is in effect a court case, so you must be prepared.

“Failing to investigate allegations properly is another common mistake – one always needs to remember that there are two sides to every story. Badly selected or badly worded disciplinary charges can also negatively impact your case, so you should always formulate the charges correctly in order to suit the proof you do have.

“Remember that there is no institution that is stricter on employers than the CCMA, so the odds are stacked against you from the beginning with the onus being on you to prove the dismissal was fair, the employee doesn’t have to prove it was unfair.

“Labour law is a minefield for the employer, and the proof of this is in the fact that the CCMA deals with 140 000 cases annually, of which about 80% are dismissals. Therefore, it is clearly in your own best interest to talk to an expert before following through on anything related to this subject,” says Israelstam.

Top 10 labour law pitfalls

  • You cannot solve an unfair dismissal by throwing money at the problem
  • There are specific procedures to follow when terminating employment, dependent on the type of dismissal
  • You cannot dismiss someone without a legally acceptable reason
  • Failure to use an expert representative if taken to the CCMA could be disastrous
  • Failure to investigate allegations properly could cost you plenty
  • Badly selected or badly worded disciplinary charges can negatively impact your case
  • There are far-reaching labour law consequences around the subject of mergers and acquisitions
  • Placing fixed-term employees into permanent jobs, then failing to renew the contract at term’s end may be seen as unfair dismissal
  • Hiring employees and disguising them as independent contractors. If they are treated as normal employees they must be hired as employees
  • Not following the correct process for dismissing employees for being sick or injured

For more information contact Ivan Israelstam at Labour Law Management Consulting on +27 11 888 7944 or email labourlaw@absamail.co.za

Entrepreneur Magazine is South Africa's top read business publication with the highest readership per month according to AMPS. The title has won seven major publishing excellence awards since it's launch in 2006. Entrepreneur Magazine is the "how-to" handbook for growing companies. Find us on Google+ here.

Labour Complexity

When Culture And Law Clash

Fortunately, our courts have begun to provide guidance as to how to deal with this potential conflict in the workplace. We deal with two such cases below.

Aadil Patel

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With 11 official languages and nearly 56 million citizens, South Africa is a true melting pot of diverse cultures, traditions and beliefs. Our country’s rich diversity raises interesting and complex questions from an employment perspective. Although the Constitution protects diversity, it is often difficult for employers, especially entrepreneurs, to align their business needs with the cultural, religious and traditional beliefs of their employees. Fortunately, our courts have begun to provide guidance as to how to deal with this potential conflict in the workplace. We deal with two such cases below.

The employee who sought to become a sangoma: Kievets Kroon Country Estate (Pty) Ltd v Mmoledi and others [2014] 1 All SA 636 (SCA)

The employee in question sought one month of unpaid leave to attend a ritual ceremony for sangoma training. She submitted a certificate from a traditional healer (and other supporting documents) to substantiate her request. The employee also informed the employer that this was a calling from her ancestors and that if she did not fulfil the request, she would die. The employer refused the request.

Nevertheless, the employee went on the training without permission and she was subsequently charged with insubordination and absence from work and thereafter dismissed.

The employee did not argue that she was sick in the conventional sense. She said that, owing to her cultural beliefs, her ancestors had called her to undergo training to become a sangoma. The interesting question before the court: Was the employee’s absence from work justifiable?

This case shows how employer and employee interests often conflict. On the one side, you have an employer who is trying to run a business while on the other, you have an employee who believed that her ancestors were summoning her to become a sangoma.

The Supreme Court of Appeal confirmed that South Africans have different belief systems which form part of their culture (that is, customs, ideas and social behaviour). A court (in general) are not equipped to evaluate the acceptability or consistency of a belief – it can only scrutinise the sincerity (or reasonableness) of an employee’s belief. In this case, the court found the employee’s belief to be reasonable.

Related: What The Law Says About Employee Leave And Absence

Traditional dispute resolution practices verse disciplinary codes: Harmony Goldmine Company Limited v Raffee N.O. and Others (JR1205/15) [2018] ZALCJHB 169 (8 May 2018):

An employee (Mr Ndele) was assaulted by a fellow employee (Mr Ndabeni) at a hostel bar. Mr Ndele fractured his leg during the assault. Although this case is related to Mr Ndabeni’s assault by of Mr Ndele, it concerns a different employee: Mr Puzi. Mr Puzi was a colleague and friend of Mr Ndabeni and from a cultural perspective, Mr Puzi formed part of Mr Ndabeni’s “delegation”.

After being released from hospital, Mr Ndele informed the employer’s mine governor about the assault. Mr Ndabeni (and his delegation) then, in terms of the Mpondomise tradition, visited Mr Ndele to ask for forgiveness and to offer monetary compensation. However, the parties could not agree on the amount of compensation. Mr Ndele then formally reported the assault incident to the employer.

Due to his involvement in what the employer viewed as behind-the-scenes negotiations, the employer charged Mr Puzi with bribery and dishonesty, and the employer later dismissed him.

The matter posed two interesting questions:

  • In a culturally diverse workplace, to what extent should the employer embrace employees’ individual cultural norms and traditions?
  • Would the practice of those cultural norms and traditions prohibit the employer from disciplining employees?

An expert (on African norms) submitted, in court, that the practice of traditions cannot be used to defeat the ends of justice or conceal a transgression.

However, the court considered the Ubuntu approach to conflict resolution and stated that “ubuntu societies place a high value on communal life, and maintaining positive relations within the society is a collective task in which everyone is involved… if an individual is wronged, he or she may depend on the group to remedy the wrong”.

In this matter Mr Ndabeni (and his delegation) sought to make peace, through methods of cultural conflict resolution, with Mr Ndele following the assault. However, the employer viewed the actions of the employees as constituting dishonesty and attempted bribery. The court disagreed, holding the claims to be unfounded. The following extract from the judgment is worth noting:

Even though employers may not be bound by the cultural traditions, they cannot simply ignore the reality of their existence, especially in instances where the cultural traditions are aimed at achieving societal good and are not in conflict with the Constitution… where the perpetrator showed true remorse and was willing to promote peace with the victim in accordance with their norms and traditions, the employer would be expected to earnestly consider same in good light.

Related: Master The Ins And Outs Of South Africa’s Labour Laws

These cases provide two overarching lessons for employers and entrepreneurs:

  • If employees provide reasons for absence from work that relate to cultural, religious and/or traditional beliefs, you should carefully consider these requests and, where possible and reasonable, be accommodative to such employees; and
  • You must be cautious in applying disciplinary codes in a blanket manner, without taking cognisance of employees’ cultural methods of conflict resolution.

At the end of the day, entrepreneurs must be cognisant of the fact that employees have their own unique religious and cultural belief systems. Implementing an approach that is blind to this reality may result in employers treating their employees unfairly.

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Labour Complexity

Why Employees Need Funeral Cover

Why your employees need funeral cover – the macabre topic you didn’t think you needed to discuss.

Amy Galbraith

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Being the boss is difficult. You need to be sure that your company is running smoothly, keep customers happy and ensure that your employees are satisfied and content. One effective way to keep your employees satisfied is to offer them benefits such as a medical aid, life insurance or funeral cover.

Group scheme funeral cover is especially important to employees as the costs of funerals continue to rise. If you are interested in offering this to your employees, read on below for just some of the reasons why your employees need funeral cover.

The cost of a funeral

If you have not planned a funeral recently, then you will not be aware of how costly they can become. Even if you water it down to the basics, a funeral is an expensive endeavour. Often you will see people struggling to put together the funds to pay for a funeral of a loved one, which could be the case for one of your employees.

Sometimes, employees will put finances together for their coworker, so the family can use these funds towards the funeral. This is especially true if the employee was the sole breadwinner of their family. Getting funeral cover for your employees will alleviate this burden and allow their friends and families to grieve in peace.

Related: Sick and Tired of Employees being Sick and Tired?

There are fewer exclusions

There are usually exclusions for funeral cover but, for group scheme funeral cover, there are significantly fewer. In some cases, your employees do not have to undergo a medical exam and if they are smokers, they will not have to pay a higher premium than the other employees.

Unlike individual funeral cover, group scheme funeral cover works on the principle of pooled risk, it is available to all employees regardless of their health status. If one of your employees has high cholesterol, they will not be excluded from the cover. Similarly, if someone has diabetes, they will not be excluded. This is a fantastic aspect if your employee is the sole person who works in their family and does not have the means to afford their own cover.

Benefits apply automatically to all employees

One of the major reasons why group scheme funeral cover is so good for your employees is that the benefits will apply immediately to all employees. This means that, regardless of their health, age and level in the company, they will have access to the benefits.

This is highly advantageous to your employees as they will not have to wait to see if they qualify for the cover. While there might be a certain time period you will have to wait before making a claim, your employees will all reap the benefits equally. This makes for a happier workplace and less stressed employees, which benefits everyone.

Their families will have closure

If or when one of your employees passes away, it is a very difficult time for their family. This can be made even more difficult if they have to scrape together money to pay for a funeral. Having a proper, dignified funeral is part of the grieving process and provides closure for the family.

If their family is not able to plan a proper funeral, this could mean that they have an open-ended period of loss in front of them, with no official goodbye to their loved one. You will also find that fellow employees find closure, as they will be able to attend the funeral and give their condolences to the family. Having closure is an important part of the grieving process and will ensure everyone involved can grieve properly.

Related: Why Innovative Employee Benefits Are Your Competitive Advantage

It offers a good incentive

If you want to find and retain talent, you will need to offer your employees a good incentive to choose to stay with your company. Group scheme funeral cover might seem like a minimal benefit, but your employees will be happy with the fact that you are actively helping them to look out for the best interests of their family.

Having funeral cover will make it more likely that your employees will stay loyal to you, as you are offering something that will help with their future and the future of their family. While some employees might have taken out their own cover, there are some who might not be able to afford it. Your employees will feel valued and appreciated and will stay with your company rather than look for work elsewhere.

Final words

Your employees need funeral cover for a wide variety of reasons, one of which is the rising cost of funerals in South Africa. There are fewer exclusions with group scheme funeral cover, which means that all of your employees will be covered, no matter what their health status is.

Some options even allow employee family members to be covered, which can be of immense help to the employees in their time of need. Offering funeral cover to your employees is affordable and allows them to have one less stress in their lives, which means more productive workers and a happier office atmosphere.

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Temporary Employment Service Providers Underpin IPP Economic Development Goals

Preference will be given to Independent Power Producer projects valued at R56 billion that possess a plant technology and location that contributes to local economic development.

Workforce Staffing

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“Independent Power Producer (IPP) projects will provide 61 600 full-time jobs,” stated Energy Minister, Jeff Radebe, while announcing the plan for 27 new renewable energy plant projects to be rolled out under the IPP programme.

This is an excellent and beneficial initiative. However, the fact that many of the skills will be required only on a temporary or project basis during the construction and setting up of each facility, may pose a challenge for IPPs looking to get started.

Skills sourcing

Sean Momberg, Managing Director of Workforce Staffing, says that IPP projects stand to benefit from consulting experienced Temporary Employment Service (TES) providers. “IPP projects require a significant investment in human capital, which becomes more complex and time-consuming by having to source local staff,” he explains.

Related: Temporary Employment Providers — Friend or Foe?

“Once the main contractor is appointed, they are responsible for sourcing skilled staff and suppliers for the duration of the construction and commissioning phases. A TES provider can significantly reduce the workload, by managing all human resources and industrial relations for them.”

Building an alternative power plant is a lengthy process. The 27 projects mentioned have spent approximately two years in this sign-off period and, now that they have been approved, IPPs need to work quickly to get the ball rolling. From civil work and environmental impact assessments, to mechanical, engineering, electrical and physical site building — each project requires a varied and vast number of skills.

Running interference

“TES providers go beyond providing temporary and project-based staff,” says Tebogo Moalusi, National IR Director at Workforce Staffing. With unions such as NUMSA protesting against IPP projects, even though job losses due to coal mine closures were unrelated to the introduction of IPPs, TES providers’ expertise in managing union relationships can prove a valuable aid to IPPs.

“IPP projects commonly face hinderances like demarcation disputes,” adds Tebogo. “A reputable TES provider understands local economic development as well as relationship management and works with both local employment providers, the community and unions to mitigate concerns.”

IPP projects often involve investment from international players and communication between international and local parties. Sean says that TES providers assist in breaking down these communication barriers, focusing on the importance of local job creation, while ensuring that international standards are maintained.

 “TES providers assess local catchment areas keeping fair processes in mind. This takes procurement into account, and sourcing of local equipment, accommodation, transport and catering is all considered,” he says.

Frequently with international parties, payment terms are set at 90 days from invoice. Sean stresses that this is not sustainable in local environments, where suppliers and staff don’t have the financial capacity to work within those terms. A reputable TES provider has the financial capacity to ensure that payment demands are met weekly or monthly, based on local requirements.

Related: Does A Strike Hit The Heart Of Your Business?

A focused approach

“A TES provider’s focus remains employment. Although the IPP’s goal is to complete their project on time and within budget, TES providers have the experience and knowledge to provide employment and procurement solutions that underpin the IPP’s objectives, ensuring a smooth and hassle-free project roll out,” Sean concludes. n

Temporary Employment Services’ part in minimising IPP job losses

  1. Onsite training and skills courses upskill temporary project workers.
  2. Skills transfer helps ensure future employability.
  3. Entrepreneurial skills development fostered for post-project maintenance contract work.

Workers obtain marketable skills they can add to their CV.

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