Ivan Israelstam

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Yes, it is true that our government has lifted its Covid restrictions as a means towards promoting economic activity. While this will assist businesses to improve their sales, employers and employees need to bear some important things in mind:

 


The Labour Relations Act, seven other labour acts and numerous codes of good practice have all been designed to protect employees. And indeed, employees need protection from unscrupulous employers. However, the imbalance is so great that our labour laws leave employers virtually unprotected.


Our labour dispute resolution system often claims jurisdiction over foreign employers. When a foreign embassy is situated in South Africa it is in fact, according to law, based on foreign soil.


There are many different reasons that employers lose at arbitration despite their confidence that they would win. Some of those reasons include:


Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of how the law allows them to use such warnings. In labour law the main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve.

 

 

 


In my previous article I explained that the New Code of Practice: Managing Exposure To Covid In The Workplace, 2022 requires employers to conduct a special health risk assessment (HRA) and to implement a plan to protect its employees from contracting Covid.


The presiding officer (PO) of a disciplinary hearing must hear the evidence from both sides properly in order to be able to consider it once the hearing is adjourned for purposes of a verdict. The PO then assesses the evidence collected at the hearing in order to decide whether the employee is guilty or not guilty of the charges. 


Labour law accepts the firing of guilty employees only if dismissal is the last resort. The Code of Good Practice: Dismissal provides that, where employers are considering dismissing an employee they should be able to justify this drastic sanction by proving that the employee’s misconduct is so serious that it makes continued employment intolerable. One factor that could constitute such intolerability is the employee’s breach of the trust relationship.


Strikes in South Africa are as ‘normal’ as warm weather. However, strikes have more recently occurred less frequently probably due to the reluctance of unions to weaken the employer and to spark resulting retrenchments. In the light of this partial mindset change the Massmart strike that has entered its second week is somewhat unexpected.


Whether the dismissal of an employee who attended work whilst awaiting a Covid-19 test result, who continued to report to work after the Covid-19 test result came back positive and who failed to follow health and safety protocols in the workplace, was fair.


In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest. 


In addition to Corona other illnesses result in work falling behind just when businesses are trying to recover from the lockdown. The challenge for employers is to distinguish the genuine cases of illness from those where employees are just sick of working.


Covid has very severely weakened business, eroded job security and spurred unemployment. While strikes have been fewer and shorter during Covid, their effect is greater because of the very weak financial circumstances of businesses and workers resulting from the pandemic.


Lack of awareness of Constitutional and labour law protections of employees from foreign countries has prompted many employers to mistreat illegally employed staff. That is, employers have paid illegal immigrants low wages, deprived them of employee benefits and have dismissed them at will.


Employees do not ordinarily have an automatic entitlement to a pay increase or to advancement up the corporate ladder. However, the Labour Relations Act (LRA) does allow employees who have been passed over for promotion to lodge an unfair labour practice dispute at the relevant bargaining council. Should the industry in question have no bargaining council the employee may lodge the dispute at the CCMA.


The Employment Equity Act (EEA) prohibits sexual harassment of employees by other employees and holds the employer liable in such cases even if the employer does not know that the sexual harassment is going on. The courts have upheld this provision.


The CCMA’s policy guidelines for misconduct dismissal arbitrations that became effective in January 2012 increases the obligation on commissioners to conduct themselves properly when arbitrating such matters. 


Should an employer fail to bring any witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because witness testimony normally forms the crucial core of the procedure at any hearing. 


An integral element of an employment relationship is the need for and the right of the employer and employee to trust each other. This is a two-way street and either party could forgo his/her right to continue the employment by destroying the trust relationship.


It is legally very dangerous for employers to discipline and fire employees  who commit offences due to illness or disability. For example, an employee who uses alcohol or narcotics and becomes addicted is legally classified as being ill and is protected by law.

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