#BizTRENDS 2018 : FIVE TRENDS IN EMPLOYMENT LAW WE CAN EXPECT IN 2018

As we launch into 2018, here are a handful of trends we’ll be seeing in the workplace this coming year…

Continued focus on sexual harassment in the workplace

Sexual harassment will remain a scourge in the modern workplace in 2018 and concerted efforts by progressively minded companies and individuals will be required if we wish to improve the situation.
The Employment Equity Act is the cornerstone statute guaranteeing the right to equality in the workplace. It gives effect to the prohibition against unfair discrimination contained in the South African Constitution where such discrimination may arise in the employment context. It protects employees against various prohibited actions, including harassment. The EEA also places a positive duty on employers to promote equal opportunity in the workplace through elimination of unfair discrimination. Employers attract liability where they fail to take the necessary steps to ensure that their employees do not breach their obligations under the EEA.
A sexual harassment policy is essential in any workplace, but even more so is how the employer gives effect to it. Employers should ensure that some level of induction or training on harassment and discrimination is provided to employees, especially newly hired staff. Creating an audit trail of complaints lodged and steps taken could avoid some of the difficulties faced by the employer. Employers could also consider appointing a senior executive or manager as its public champion in complaints of discrimination or harassment.

Clamp-down on misconduct relating to corruption and anti-money laundering

In 2018, businesses around the world will be re-evaluating existing workplace policies, awareness and training programmes to eradicate corruption and money laundering within their organisations. In addition to pro-active employment measures, employers will take appropriate action against employees who engage in illicit or wrongful procurement or contracting practices. Managing legal and reputational risk includes dealing with employee misconduct decisively, but fairly.

An increase in dismissals for operational requirements (retrenchments)

Considering the poor economic climate and changes to the approach adopted for the transfer of services (outsourcing/insourcing), we can expect to see an increase in dismissal for operational requirements in 2018.

Employers should bear in mind that have a statutory duty to consult with affected parties when they contemplate dismissals for operational requirements (retrenchments or redundancies). The reason for the legislated duty is simply that the employer should engage the affected employees before making a final decision to retrench them. Businesses should explore creative solutions that will avoid or mitigate the terminations. Where reductions are unavoidable, humane ways of parting ways can and should be explored.

Strike action will increase as workers bear the brunt of inflation

The economic situation including increases in the price of food and transport will most likely lead to more strike action in 2018.

In anticipation of industrial action, an employer should firstly ensure that industrial action is avoided where possible. In many instances, miscommunication is a major contributor to industrial disputes. Where industrial action is unavoidable or even necessary, in some instances, to restore bargaining power, an employer should take meaningful steps to limit the impact of a strike. These include regularly updated strike contingency plans, keeping a strike diary, maintaining an updated list of active staff, and updating standard forms that may be used during a strike.

Further action from the Department of Labour on companies not complying with obligations in terms of the Employment Equity Act

In 2017, 72 JSE-listed companies were identified as the subject of employment equity reviews by the Department of Labour Inspection and Enforcement Services (IES). As a result of this process, the IES announced that 50 JSE-listed companies, including the JSE, were found to be non-compliant with the Employment Equity Act (EEA). The IES noted that areas of non-compliance with the EEA included a lack of properly constituted consultative forums; EE plans that were not properly audited and analysed; assigned senior EE managers who did not have the necessary authority or resources to execute their mandate, and prepared employment equity plans that did not comply with legislation.

To date, there have not been any hefty fines issued for non-compliance with employment equity obligations but clearly the the Department of Labour is seriously clamping down on enforcement and we can expect to see some hefty fines being imposed in 2018.

CREDIT – BizCommunity (www.bizcommunity.com)

Written by Johan Botes.

EMPLOYEES BE WARNED! A CONFLICT OF INTEREST CAN GET YOU DISMISSED

 

“Honesty is the best policy” (Benjamin Franklin)

Employees have a general duty to act loyally, honestly and in their employers’ best interests, and amongst other things that entails avoiding any possible conflicts of interest.

A recent Labour Court decision confirms that any breach of this duty risks dismissal.

A long-service municipal employee dismissed

  • An employee with a 29 year service record failed to disclose to his employer several possible conflicts of interest relating to businesses (which were official “vendors” to the municipality) run by his wife and brother respectively.
  • The employee was bound by his employer’s “Private Work and Declaration of Interests” policy, the practical effect of which was that “he could not give jobs to friends and family” and had to declare any possible conflicts of interest as they arose.
  • Because the employee and his wife were married in community of property, he benefitted directly from his (and his wife’s) failure to disclose a potential conflict when the wife’s business applied to become a vendor to the employer.

It was irrelevant, held the Court, whether he did or did not actually influence the municipality in assigning work to his wife’s business. What counted was whether his failure to disclose possible conflicts of interest amounted to dishonesty, and that required the answers to three questions:

  • Was there a rule about conflict of interest?
  • If so, did the employee knowingly breach it? And
  • If he breached it, was this breach serious enough to warrant dismissal?

In the end result, the Court confirmed the dismissal, holding that the employee was guilty of “serious misconduct amounting to gross dishonesty”, that “his long service does not diminish the gravity of the misconduct” and that “the sanction of dismissal was fair in those circumstances”.

Credit: LawDotNews

MEDICAL CERTIFICATES

In terms of Rule 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa, a practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:

  1. The name, address and qualification of the practitioner
  2. The name of the patient;
  3. The employment number of the patient (if applicable);
  4. The date and time of the examination;
  5. Whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
  6. A description of the illness, disorder or malady, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medial practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
  7. Whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
  8. The exact period of recommended sick leave;
  9. The date of issuing of the certificate of illness; and
  10. A clear indication of the identity of the practitioner who issued the certificate which will be personally and originally signed by him or her next to his or her initials and surname in printed or block letters.

When one considers clinic certificates or clinic notes in terms of Rule 15 (1)(j) above the medical practitioner is required to print his name and initials on the medical certificate in addition to his or her usual signature. As occurs on a daily basis, medical certificates issued by a clinic hospital or satellite clinic is normally found not to be signed by the registered medical practitioner.  Every clinic and hospital has qualified medical practitioners in attendance, and any person who is ill is to be examined by such a person.

The consequence of Rule 15 (1)(j) above is that an examination by a nurse or other person who is not qualified to carry out examination and diagnoses is not acceptable. A certificate signed by a person other than a medical practitioner who is authorised to make such examination and diagnoses is equally unacceptable.

The resultant effect is that if the certificate from a clinic which contains an illegible signature and a stamp, it does not have to be accepted by the company. In such a case the company may insist that the rules as set out above are complied with and if not complied with the company may treat that period of illness as unpaid leave.

For more information concerning the implementation of correct sick control policies, the regulation thereof and the remedies available to employers for employees who abuse the system, contact Tracey Mouton at Goldberg & de Villiers on 041 501 9800, e-mail: traceym@goldlaw.co.za

EMPLOYERS AND EMPLOYEES: HOW TO HANDLE SEXUAL HARASSMENT AT WORK

 

“…there is a new understanding and appreciation of the prevalence of sexual harassment in the workplace and of its devastating effects on the victim.  It has become, in effect, a systemic and recurring harm”…“It is the kind of conduct that is a scourge in the workplace, and must be rooted out of existence.” (Extracts from judgments below)

Both employers and employees should know how to handle any form of sexual harassment in the workplace. With the slew of year-end office parties once again upon us, now’s a good time to remind ourselves that, as the “Harvey Weinstein” and other high profile allegations (and the resulting #MeToo Twitter campaigns) have illustrated, victims of powerful abusers can find it incredibly difficult to report such cases and to find redress.

The good news is that our laws against such harassment are strong, and they are rigorously enforced by our courts.

We’ll concentrate on workplace harassment in this article, but remember that you also have strong rights outside the employment sphere.  Don’t suffer in silence!

What exactly is “sexual harassment”?

In terms of the “Amended Code Of Good Practice On The Handling Of Sexual Harassment Cases In The Workplace” (“the Code”) it is a prohibited form of unfair discrimination that “… is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:

  • Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
  • Whether the sexual conduct was unwelcome;
  • The nature and extent of the sexual conduct; and
  • The impact of the sexual conduct on the employee.”

Sexual harassment can be physical, verbal or non-verbal, it can involve victimisation, intimidation or favouritism, it can be a course of conduct or a single incident, the parties can be of any gender – in fact the definitions are so wide that, if you are subjected to any sexual conduct that is (a) unwelcome and (b) has a negative impact on you, it probably qualifies.

As a victim, what can you do about it?

Firstly, the Code allows you to communicate that conduct is unwelcome in non-verbal ways, like simply walking away or not responding to the harassment.  It’s up to the perpetrator to get the message.

Or you can start with a direct but informal approach to explain that the behaviour is unwelcome and you would like it to stop.  If you have difficulty in doing so yourself you can make the approach through someone else, perhaps a colleague, superior, counsellor, friend or family member.  Your name can be kept out of it at this stage, and the approach can be a general one, explaining for example “that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable and interfere with their work.”

Or you can make a formal complaint, and then your employer is obliged to act.  The initial report can again come from you or from someone else.  Employers should have sexual harassment policies and procedures in place, providing amongst other things that “It will be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.”

That of course makes it sound a lot easier than it often is in practice, but if your employer fails to protect you or to take appropriate disciplinary action against the perpetrator, or if in any other way your employer’s procedures don’t result in a satisfactory resolution, you can approach the CCMA for assistance.

Your employer must also ensure confidentiality of all complaints (only to the extent possible of course – your identity is integral to the process itself), and assist you where possible with advice, assistance, counselling, additional sick leave and so on as appropriate.

Can you claim damages?  2 cases illustrate

Firstly, you may well have a damages claim against both the perpetrator and employer.  Take for example the High Court case of a municipal employee who claimed R4m for a sexual assault and molestation in which her immediate superior had attempted to insert his tongue into her mouth and then later addressed her with words “bearing sexual connotations”.  She suffered post-traumatic stress disorder and eventually had to resign her post.  The Court ordered that both the perpetrator and employer were liable for whatever damages she could prove.

You could also have a claim against your employer for failing to prevent unfair discrimination in terms of our labour laws.  Thus an insurance clerk, subjected to ongoing sexual harassment by a senior manager, was awarded R250,000 damages by the Labour Appeal Court after her employer’s failure to take action against the manager made her work environment intolerable and led to her resignation.

Warning off a sex pest with dismissal; 3 examples to quote

If you have any difficulty in convincing a sex pest to desist, perhaps draw their attention to both the damages cases mentioned above and to one of the many court decisions upholding the penalty of dismissal from employment.  Some good examples –

  1. A divisional director dismissed for subjecting a subordinate to harassment in the form of sexual innuendo (verbal and written), hugging and kissing,
  2. A senior lecturer dismissed for sexually molesting students and offering them extra marks in exchange for sexual favours (relevant because the power differential is similar to that in any employee/superior relationship),
  3. A company manager who made verbal sexual advances to another company’s employee at a lodge in rural Botswana.

His words “do you want a lover tonight” and “come to my room if you change your mind” were initially held by the Labour Court to be just “trying his luck” and “inappropriate sexual attention” rather than harassment.  But the Labour Appeal Court disagreed and confirmed the manager’s dismissal, holding that “the unwelcome and inappropriate advances were directed by [the manager] at a young woman close to 25 years his junior whose employment had placed her alone in his company … Underlying such advances, lay a power differential that favoured [the manager] due to both his age and gender. [The victim’s] dignity was impaired by the insecurity caused to her by the unwelcome advances and by her clearly expressed feelings of insult.”

Employers beware!

There’s many a warning for employers in the above examples.  Our courts will hold you responsible for any failure to protect your employees so act quickly and decisively to both prevent and deal with any instances of workplace sexual harassment.  Our labour laws are complex and the penalties for breaching them high, so take specific advice upfront.

Credit: LawDotNews

 

IS MY EMPLOYEE ENTITLED TO OVERTIME?

The current prescribed earning threshold in terms of the Basic Conditions of Employment Act is R205 433-30 per year.  This equates to R17 119-44 per month, as a gross remuneration.

Employees employed at a remuneration in excess of this amount would be excluded from the overtime provisions of the Basic Conditions of Employment Act.

This in turn has the consequence that such employees do not have a legal right to demand the protection and rights which are conferred upon employees in terms of chapter 2 of the Basic Conditions of Employment Act.

The resultant effect of this is that whilst an employer is not entitled to force employees to work unreasonable hours, the employee has no right to demand to be paid overtime as stipulated in the Basic Conditions of Employment Act.  The employee may however negotiate in this regard.  It is thus important that contracts of employment clearly spell out the conditions relating to overtime and the payment thereof.

For more information on the regulation of hours of work and overtime pertaining to those employees earning above the threshhold, please do not hesitate to contact Tracey Mouton at (041) 501 9818.

What constitutes gross negligence?

It is vital that companies understand the difference between negligence and gross negligence as this could be the difference at an enquiry of being in a position to find an employee guilty of the charge.

Negligence has been described as a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person.  The test therefore for negligence is whether a reasonable person in the position of the employee concerned would have foreseen the harm resulting from the act or omissions and would have taken steps to guard against that harm.

In a practical situation, this would read as follows:  “did the production manager foresee the harm of him failing to ensure quality checks were carried out hourly and failed to take steps to guard against that harm”.

Gross negligence is said to have occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself.

Case law has described gross negligence as including an attitude or state of mind characterised by an entire failure to give consideration to the consequences of one’s actions, in other words, an attitude of reckless disregard of such consequences.  It is thus a conscious and voluntary disregard of the need to use reasonable care.

Whilst disciplinary action is normally taken against employees for negligence only if they have caused damage or loss, the case authorities are clear that potential loss is sufficient in finding an employee guilty of negligence or gross negligence, depending on the circumstances.

Going into an enquiry, it is wise to charge the employee with alternative charges relating to negligence.  This would thus read gross negligence in the alternative negligence.

For more information relating to the correct manner in which to charge employees and conducting enquiries, please do not hesitate to contact Tracey Mouton on 041 501 9832 or traceym@goldlaw.co.za.