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Dealing With Dismissals For Misconduct

What constitutes fair dismissal? It’s a question that causes major headaches for entrepreneurs because the goalposts are constantly shifting. But a new set of guidelines may change that.

Ivan Israelstam

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The Commission for Conciliation, Mediation and Arbitration (CCMA) is drafting a document called Guidelines: Misconduct Arbitrations. The purpose of these guidelines is to “…promote consistent decision making in arbitrations dealing with dismissals for misconduct,” highlighting the plight of employers accused of dismissing employees unfairly.

The issues that the guidelines seek to address include how an arbitrator should conduct the proceedings, how evidence should be valued for the purpose of making an award, how to assess the procedural fairness of a dismissal, how to assess the substantive fairness of a dismissal, and how to determine the remedy for an unfair dismissal. Once the CCMA publishes the final document you’ll be able to use the guidelines as a useful tool to direct you on what you need to present to commissioners at arbitration.

How the Draft Guidelines Help Entrepreneurs

  • Item 10 of the guidelines will make it compulsory for arbitration awards and rulings to be lawful, reasonable and procedurally fair in terms of section 33 (1) of South Africa’s Constitution. This could assist entrepreneurs asking the labour court to overturn unfair dismissal decisions made against them. Business owners can, in other words, bring their review applications on the grounds that the CCMA award breached these constitutional provisions.
  • To an extent, the guidelines standardise the manner in which the arbitration hearing is conducted. This should make it easier for entrepreneurs to know what to expect at the CCMA.
  • The draft document also lays down rules for the assessment of evidence by arbitrators. This could reduce the temptation of arbitrators to ignore evidence brought by an entrepreneur.
  • The fact that the draft guidelines go into detail as to what constitutes substantive fairness will assist entrepreneurs in their preparation for hearings and in their presentation of evidence. For example, the guidelines state that differing circumstances can justify different sanctions even where the two employees were charged with the same offence.
  • The elements of fair disciplinary procedure are also explained, which will make it easier for entrepreneurs to avoid procedural pitfalls.
  • The draft guidelines also set out the procedure for the discipline of shop stewards.
  • The proposed guidelines reinforce the principle that the legal onus is on the employer to prove the fairness of the dismissal. This will remind entrepreneurs that they need to take extreme care in disciplining employees fairly and in gathering and presenting proof of this.

A Word of Caution

The draft guidelines, although not yet complete, make up a thorough and well thought out document that has the potential to add a great deal of clarity to the law of dismissal. However, it still remains to be seen whether:

  • Commissioners will all interpret these guidelines, once they are finalised, in the same way
  • The “consistent decision making” desired by the CCMA will be achieved
  • Fewer defective arbitration awards will be made

Next steps for executives

We can be optimistic that if these guidelines are taken seriously by commissioners, arbitration awards will begin to be more consistent and less reviewable. There is no doubt that if entrepreneurs ensure that they obtain copies of the final version of the guidelines – and get proper advice on how to learn from them – they will be able to comply more successfully with the laws of discipline.

Ivan Israelstam is CE of Labour Law Management Consulting. Contact him on +28 11 888 7944, +27 82 852 2973, labourlaw@absamail.co.za, or go to www.labourlawadvise.co.za

Ivan Israelstam has a BA Honours degree from the University of Witwatersrand and an IPM Diploma in Personnel Management and Training. He has more than 20 years of experience in labour law and industrial relations. He is a member of SACOB’s Labour Affairs Committee and is involved with business sector decision-making on labour issues. He also writes a weekly column for The Star newspaper.

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Why Your Employees’ Health Is Your SME’s Wealth

Absenteeism costs R16 billion annually, according to Stats SA. That’s a lot more than it costs to sign up for a group offering that is specifically designed for small to medium enterprises.

Fedhealth

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Fedhealth’s Commercial Executive, Michelle Morton explains the importance of group health cover to keep your SME’s pulse strong.

1. Why is it important for a SME to care about the health of its employees?

First, when an employee in a critical role within the SME falls ill, there’s often nobody else to fill the skills void created by his or her absence. This can have a detrimental effect on the daily operations and business output.

Second, offering sound medical aid may attract and retain the right talent to the business.

Third, choosing a medical aid like Fedhealth, which places a big emphasis on preventative health and wellness, can also assist the SME owner in cultivating a healthy culture in the workplace.

Related: Fedhealth Brings Healthy Benefits to your Staff

2. What should business owners consider when looking for a group medical plan?

Apart from factors like affordability, a good reputation, and ability to pay claims, look for schemes that offer value-added services, such as wellness days where staff can undergo crucial health screenings, and programmes to address specific health issues.

3. What are the top health concerns for today’s workforce?

Back and neck pain are second to headaches when it comes to painful conditions affecting humans — especially office workers, who are often desk-bound for hours on end. Fedhealth offers qualifying members a 12-week Conservative Back and Neck Rehabilitation programme to help correct the problem through exercise and behaviour.

Diabetes and hypertension are also on the rise, while some employees face HIV/Aids, weight issues or struggle to quit smoking. Fedhealth provides assistance for all these diseases and health concerns.

4. How will the employees benefit from working for a company with a great group medical plan?

I believe it makes the business a more attractive place of work for employees, as medical aid is a much-needed benefit and costly if one has to pay for it out of one’s own pocket.

Related: Why Fedhealth Believes In The Power Of The SMME Sector

5. Please explain the importance of the SOS Corporate Wellness benefit

The Sisters-on-Site service (SOS Corporate Wellness) is a value-add as it brings basic healthcare to the office. This means that staff can regularly see a qualified nursing sister at their place of work for minor health issues, instead of having to take time off work to visit the doctor or clinic.

Employees build a rapport with the sister, as they see her on a frequent basis. Through the SOS Corporate Wellness benefit, they can also conduct important health screenings that might flag serious health issues of which the employees might be unaware. Sisters-on-Site can also facilitate monthly health themes to raise employee awareness on issues like breast cancer.

 

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Why HR Legislation Compliance Can Curb Business Failure

Don’t let your business reputation get dented due to non-compliance.

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HR Legislation Compliance

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Millennium Support Services is designed to afford all business enterprises the opportunity to have Human Capital Management for their business.

“It is just unfortunate that non-compliance is exactly that “non-compliance” and most small businesses reputation gets dented or even fully destroyed, in the event that they are being accused of non-compliance by employees and statutory bodies” says Sharon Tshabalala CEO of MSS.

“Small businesses have no resources yet at the same time are not exempted from compliance. So, through the use of technology we are able to provide easily accessible HR services across the board.”

Related: Human Resources Management Demystified

Millennium Support Services provides businesses with exclusive distinctions of its service, so that you can ensure that your business remains compliant.

Human Resource Policies

human-resource-policies

The advantage it has over other online HRM systems is that it offers online access to Human Resource policies based on approved legislative framework.

1Independent Representation

In cases where disciplinary proceedings have to be under taken, an independent chairperson will be made available. When disputes have been escalated to the CCMA, a Labour Relations Expert will represent the employer.

2Disciplinary Policy

The primary purpose of discipline is to encourage employees to correct their conduct and/or discourage employees from breaching standards of conduct. Depending on the nature of the breach, there are five forms of disciplinary sanctions taken against employees – either formal or informal.

Namely: Verbal Warning, Written Warning, Final Written Warning, Suspension of Salary and finally Dismissal.

3Grievance Policy

The purpose of this policy is to give guidance and to provide a framework on how to raise and deal with grievances effectively at the earliest possible stage. There are three types of Grievance which have an informal/formal procedure.

Namely: Mild Grievance, Serious Grievance and Sensitive Grievance.

Related: Is Leveraging Your Resources Getting The Job Done Properly?

4Occupational Help Policy

The purpose of this policy is to establish minimum standards and requirements of occupational health and safety for the corporation in order to reduce the risk by:

  • Identifying hazards and possible risks causing incidents and accidents,
  • Setting standards of practice, procedures and accountability,
  • Measuring performance against standards, Evaluating compliance with standards,
  • Correcting deficiencies, deviations, and set standards of procedures to be followed,
  • Creating and maintaining a healthy and a safe work environment.

HR management is a specialist field, with many laws and regulations to navigate. If you don’t have a background in this field and can’t afford to hire a full-time HR specialist, consider outsourcing this function.

Millennium Support Services – Human Capital Management made easy.

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Will A Strike Cripple Your Business?

Strikes can cause a drop in productivity; ensure you have a staffing solution to see you through uncertain times.

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Strikes can cause a drop in productivity; ensure you have a staffing solution to see you through uncertain times.

South Africa’s economy has become very competitive and losing business to a competitor could be a serious blow. When employees strike, your business is likely to lose money due to delayed services and lost production time.

Businesses with advanced strike management policies and planning in place have a higher success rate in avoiding potential losses due to strikes. Workforce Staffing is a staffing partner that protects your Return on Human Investment during these challenging circumstances.    

Related: Finding Your Staffing Partner

Do you have a Strike Contingency Plan?

When 400 staff members unexpectedly decide to strike at dawn, you need a staffing partner that will arrange for capable and reliable staff members to take their place, that same day.

You will need:

  • A reputable staffing provider that knows how to liaise with authorities to establish a safe production environment for your staff.
  • Legal assistance in organising interdicts and disciplinary hearings, making sure you follow due process to shorten the strike period as much as possible.
  • Experienced hands in successful contingency planning and efficiency to keep your business productive even during industrial.

One of the biggest concerns for businesses is the amount of time and money that’s squandered due to absenteeism when employees strike.

Barend Matthee, Northern Cape Regional Director for Workforce Staffing, explains that using contract workers for a project will allow for cost-savings as workers will only be paid for the duration of the project. The principle of “no work, no pay” will apply.

“Optimisation of contract workers through Workforce Staffing’s understanding of various on-boarding processes, including medicals, inductions, etc., allow for quick turnaround times on replacement staff, as well as the opportunity for contract workers to be circulated to various other clients or tasks,” notes Matthee.

Related:Organisational Behaviour Expert Siphiwe Moyo’s Insights Into Keeping Your Employee’s Motivated

This holistic approach allows for good time- and resource management on projects.

Outsourcing staff also provides you with a temporary workforce that has the required skills and experience to meet your company’s changing needs.

An expert staffing provider will ensure that your projects are fully-staffed and up-and-running within a short space of time, saving both time and money. 

Workforce Staffing calms the storm with its: 

  • Critical experience in striking situations
  • Solid infrastructure and resources, mitigating your risk
  • Legal consultation on processes and services
  • Logistics management like transport, labour, compliance, worker induction and contingency sites
  • Provision of ongoing labour to maintain your service levels
  • Facilitation of continuous communication between all stakeholders

Workforce Staffing has the experience and infrastructure to mitigate your risk:

  • Receive Support from its NATIONAL BRANCH NETWORK
  • Enjoy HR AND IR INDUSTRY SPECIALISTS expertise
  • Receive a CONTINGENCY WORKFORCE quickly and effectively

Contact them today to retain maximum productivity. 

087 135 8888  |  info@workforce.co.za  |  www.workforcestaffing.co.za

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