DEPRESSED AND DISMISSED – A HARD LESSON FOR A HARD EMPLOYER

A recent Labour Court decision shows how dangerous it is as an employer, when attempting to dismiss an employee, not to draw a clear distinction between misconduct and incapacity.

Disciplined for depression

An employee, whose track record had originally been an excellent one, was charged at a disciplinary enquiry with four charges of misconduct –

o             Unauthorised absence from work for 17 working days,

o             Failure to inform his manager of his absences in accordance with company policy,

o             “Gross insolence” in the form of turning his back on his manager when talking about his absenteeism,

o             Refusal to obey a “lawful and reasonable” instruction.

He was summarily dismissed after being found guilty of all the charges.

He then asked the Labour Court to declare his dismissal unlawful on the basis that although his conduct was as charged, it was caused by his state of depression. He had been diagnosed by two doctors for depression and prescribed anti-depressants. Moreover a clinical psychologist recommended he be granted sick leave as he was suffering the symptoms of a burnout and “reactive depression”, and was close to an emotional breakdown.

He blamed his depression on his personal and financial problems, and on workplace stress related to his management’s reaction (and inaction) when he asked for help. For example, he was denied a salary increase and performance bonus and said he felt betrayed when his manager appeared on behalf of his wife in his divorce.

The Court, finding that depression is a form of mental illness and that the employee’s conduct was inextricably linked to his mental condition, held that the employer had a duty to institute an incapacity enquiry rather than a disciplinary one. Furthermore, knowing that the employee was a person with a disability, the employer “was under a duty to reasonably accommodate him”.

In all the circumstances the Court found that

o             The dismissal was automatically unfair in terms of the Labour Relations Act, and

o             The employee had suffered unfair discrimination in terms of the Employment Equity Act.

The hard lesson for employers

The end result is that the employer must –

  • Reinstate the employee with full retrospective effect,
  • Pay him an additional six months’ salary as compensation,
  • Pay his legal costs.

Mental health issues are perhaps not always as easily understood as physical ones, but they can both amount to incapacity and in both a little bit of empathy will go a long way. Moreover specific legal rules apply as to how you should proceed, and even if you suspect malingering it’s vital to act fairly and in accordance with procedure.

Take specific advice before you do anything as the penalties for getting this wrong will be severe – our courts are not gentle with employers who contravene our labour laws, particularly in cases of automatic unfairness and unfair discrimination

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For professional Labour Law advice, contact Goldberg & de Villiers Inc on 041 501 9800.

INCREASED BENEFITS UNDER UNEMPLOYMENT INSURANCE ACT

Through amendments to the Unemployment Insurance Act, which amendments were passed in January 2017 but have not yet come into effect, the Department of Labour intends using a portion of the surplus held in the Unemployment Insurance Fund (UIF) to expand the scope and reach of benefits available to contributors to the fund that lose their jobs.

As the increase in benefits will be paid out from the surplus in the fund, there will not be an increase in the contributions made by employers or employees to the fund (employees currently contribute 1% of their salary to the fund and employers must match that amount).

Some of the more notable changes to benefits include:

  • A period of up to a year for contributors to submit claims instead of the current six months;
  • Benefits of up to a year instead of the current eight months i.e. one day of benefit pay for every four days worked;
  • Inclusion of public servants in the UIF;
  • Inclusion of learners completing learnerships or vocational education and training programmes; and
  • Qualifying maternity leave applicants to receive a flat rate of 66% of their salary (subject to a maximum benefit of R17 712 per month) instead of a rate of 38% to 60%.

According to Makhosonke Buthelezi, UIF Director of Communication and Marketing (https://www.groundup.org.za/article/department-labour-use-its-billion-rand-surplus-extend-uif-benefits/), the Department’s systems are now “98%” ready for the changes which would have meant that an extra R7 billion would have been paid out between January 2017 and April 2018 (the UIF paid R8.47 billion in benefits in the 2016-2017 year).

For professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

 

 

 

 

 

WHISTLEBLOWERS: WHAT IF YOUR DISCLOSURE IS FACTUALLY WRONG?

For many years now the “Whistleblower’s Act” (actually the Protected Disclosures Act or “PDA”) has been providing protection to employees who report unlawful or improper conduct by their employers or fellow employees.

Recent updates to the PDA have extended protection to independent contractors, consultants, agents and workers employed by labour brokers. There is also a new requirement for employers to put in place “internal procedures for receiving and dealing with information about improprieties”.

Reprisals against a whistleblower (in the form of any type of “occupational detriment”) will land an employer in very hot water indeed. For example if the reprisal takes the form of a dismissal, it is “automatically unfair” and that carries substantial risk such as a compensation order of up to 24 months’ salary.

A case of incompatibility or retaliation?

  • An employee of a large organisation came to believe that several of her subordinates’ positions had been re-graded to a lower grade, without their knowledge or consultation, and that this both negatively impacted on their future salaries and distorted the accuracy of the company’s employment equity report. She reported this to her immediate superiors, then to the company’s internal audit department and to senior executives, but received no feedback.
  • Out of the blue she was presented with a termination offer, and when she didn’t accept it she was summarily dismissed for “incompatibility with colleagues”.
  • Her claim for automatically unfair dismissal in terms of the PDA was rejected by the Labour Court, but on appeal to the Labour Appeal Court her claim was upheld and she was awarded compensation of 18 months’ salary, with her employer ordered to pay all legal costs.

In reaching this decision, the Court considered several important questions

  • Was the whistleblower’s disclosure made in good faith, in accordance with procedure, and based on a reasonable belief that it was substantially true? If so, the disclosure is a protected one. Importantly, said the Court, the whistleblower need not prove a factual basis for the belief “because a belief can still be reasonable even if the information turns out to be inaccurate.”
  • Was it reasonable in all the circumstances for the whistleblower to have made the disclosure? On the facts, held the Court, the whistleblower had acted reasonably and the employer’s contention that the dismissal was based on incompatibility was “nothing short of fiction and the only probability is that the appellant’s dismissal was in retaliation for her disclosure of the irregularities in the re-grading process.”

The lesson for whistleblowers

The PDA provides you with strong protections if you follow the correct procedures; just be sure you will be able to pass the tests posed by the above questions.

The lesson for employers

Don’t take action against a whistleblower just because a disclosure is factually incorrect – it is the reasonableness or not of the employee’s belief, and the “good faith” requirement, that you should concentrate on. Make sure also to have a whistleblower policy in place and to tell all your employees about it – not only is that now a legal requirement, but your business can only benefit from uncovering any improper or criminal conduct going on behind your back.

As always, with our labour laws being so complicated, and the penalties for breaching them so severe, take specific advice on your particular situation.

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For more information contact Tracey Mouton at Goldberg & de Villies Inc on 041 501 9800.

RESTRAINT OF TRADE

Importance of definitions – meaning of “client”

A restraint of trade is characteristically used in an employment situation where an employee has access to the employer’s client lists and due to the nature of the position gains trust, confidence and personal relationships with the clients.

A typical example of such an industry is the insurance industry. Whilst a restraint of trade may be imposed it is essential that it be well constructed and that the intention of the contracting parties be spelt out clearly.

In a recent matter, company was upset that its employee had acquired an ex-client of their business. The company launched an interdict application in the Labour Court which application centred on whether a previous client of the company is still a protectable interest in relation to the restraint of trade.

The Court held that if the restraint does not specify the definition of client, it is only capable of being interpreted as current clients of the company. The Court held further that should a client leave the company of his or her own volition and without being induced or enticed to leave by the restrained employee and move his or her business to that restrained employee, the restrained employee cannot be seen to have breached his or her retrained.

This particular case was dismissed against the company and the company was ordered to pay costs.

The important lesson to be learnt from the matter is that a restraint is only as good as its terms and only a properly reasonably drafted restraint will be enforceable.

For more information in relation to restraints of trade and other employment law aspects, please do not hesitate to contact Tracey Mouton at Goldberg & de Villiers on 082 898 7841 or traceym@goldlaw.co.za.

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:
  • The name, address and qualification of the practitioner
  • The name of the patient;
  • The employment number of the patient (if applicable);
  • The date and time of the examination;
  • 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;
  • 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;
  • Whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
  • The exact period of recommended sick leave;
  • The date of issuing of the certificate of illness; and
  • 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

EMPLOYEES: MUST YOU REPORT WRONGDOERS? A VIOLENT STRIKE ILLUSTRATES

Our laws and courts provide strong protection for the right of employees to go on strike, and are quick to shield participants in a protected strike from any unlawful action against them by their employers.

But this is subject to the important provision that strikers (and their unions) must always act within the law, which includes the fundamental requirement that strike action must at all times be peaceful and non-violent.

And, as a recent Labour Court decision shows, even employee’s innocent of any direct involvement in misconduct can be held liable if they refuse to assist in investigating it.

A strike turns violent

  • A wage dispute led to industrial action in the form of a protected strike
  • The strike was characterised by violent confrontations, intimidation, harassment, and attacks on property
  • Despite a court interdict against this serious misconduct, it continued unabated
  • The employer then dismissed not only those strikers directly involved in the violence, but also those found guilty of “derivative misconduct” for their failure to identify the actual perpetrators when asked to do so.

Trust, good faith, and the duty to identify offenders

The Labour Court, in upholding all these dismissals as being fair, set out and applied our law on “derivative misconduct” as follows:

  • The nature and essence of the employment relationship is based on trust and good faith
  • A breach of this good faith can justify dismissal
  • Non-disclosure of knowledge relevant to misconduct committed by fellow employees is a breach of the duty of good faith
  • Those strikers who, although innocent of actual perpetration of misconduct, consciously chose not to disclose information known to them (they remained silent when repeatedly asked to identify the perpetrators) were guilty of derivative misconduct and their dismissals were both substantively and procedurally fair.

For professional legal advice contact Labour Law Director, Tracey Mouton, at Goldberg & de Villiers Inc. on 041 5019800.

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:

  • The name, address and qualification of the practitioner
  • The name of the patient
  • The employment number of the patient (if applicable)
  • The date and time of the examination;

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;

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;

Whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;

  • The exact period of recommended sick leave;
  • The date of issuing of the certificate of illness; and
  • 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

 

PROBATION, AS EASY AS 1, 2, 3, 4

It is clear from the Schedule 8 of the Labour Relations Act that the purpose of a probationary period is to ensure that the company is in a position to adequately assess the “new recruit” in order to confirm employment.

In order to ensure that Companies probably utilize probation, the following 4 principals are non-negotiable:

  1. The company is to communicate the period of probation at the commencement of the contract to ensure that both the company and employee understand that which is expected of him/her.  This period may be increased on notice to the employee after 2 below has been complied with.
  2. During the probationary period, the Company is to assess the employee’s performance. The company is to give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.
  3. If the company determines that the employee’s performance is below standard, the company should advise the employee of any aspects in which the company considers the employee to be failing to meet the required performance standards. If the company believes that the employee is incompetent, the company may either extend the probationary period as indicated above or dismiss the employee after complying with 4 below.
  4. A company may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made.

 

 

 

 

RESIGNATION BY WhatsAPP or SMS

Question:

If the Basic Conditions of Employment Act (BCEA) requires a resignation to be in writing, does a resignation contained in a WhatsApp message or SMS constitute a resignation?

The short answer is YES.

The BCEA clearly stipulates that the resignation must be in writing. When considering Section 12 of the Electronic Communications and Transactions Act 25 of 2002 data messages are recognised as being “in writing” provided they’re accessible in a format that can be re-accessed.
If an employee resigns using a data message, such as a Whatsapp message or SMS, the resignation is valid and “in writing”.

 

#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.