CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

Sources:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE 10 STEPS WHEN TAKING A DISPUTE TO THE CCMA

If you have a dispute with your employer, you may want to ask the Commission for Conciliation, Mediation and Arbitration (“CCMA”) to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. Furthermore, you do not need the other party’s consent before taking a matter to the CCMA.

Steps for disputes at the CCMA

According to the CCMA, the steps involved in resolving a dispute include:

Step 1: In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.

Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.).

Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent.

Step 4: You do not have to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.

Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend.

Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step.

Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3).

Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other and legal representation is allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

Reference:

  • The Commission for Conciliation, Mediation and Arbitration | CCMA| http://www.ccma.org.za/Advice/Referring-a-Dispute

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DOES SOUTH AFRICA HAVE A PUBLIC RETIREMENT INSURANCE SCHEME?

My husband’s employer made provision for an occupational retirement vehicle, but my employer refuses to do so. Is there any possible recourse for me in this situation?

There is currently no public retirement insurance scheme in South Africa. This is quite a predicament for most South Africans, as the majority of persons employed in the informal economy would have to rely on an old age grant (which is currently R1, 690.00 and will increase with R10.00 on the 1st of October 2018) rather than occupational retirement. This leaves one with the alternative options of either a private retirement fund or a provident fund.

Some employees are lucky enough to be given the choice between a pension or a provident fund, when they are employed. However, there is no statutory obligation on an employer to provide such a choice to their employee. In the case of a provident fund, the contributions of members are not allowed as tax deductions and, when the member reaches the retirement age, the whole benefit will be paid out in a lump sum. In contrast, with a pension fund, the member gets one third of the total benefit in a cash lump sum and the other two-thirds is paid out in the form of a pension over the rest of the member’s life. The contributions to a pension fund are deductible for tax, which offers the member some tax benefits.

Independent contractors, the self-employed, and other persons who do not qualify to join occupational retirement funds, are left with no other option but to turn to private retirement annuities. The high-income employees also tend to invest their monies in this option to secure a comfortable retirement.

The private retirement scheme option has now taken up the responsibility of a social insurance scheme.

In his budget speech on the 21st of February 2018, the Finance Minister, Malusi Gigaba, declared that the old age grant would increase by the 1st of October 2018. This is the last option for those whose retirement plans have failed, or the only option for most informal economy employees or low-income employees.

With the lack of a public retirement insurance scheme, employees who are not fortunate enough to be given the option of an occupational retirement vehicle are left with no other alternative but to turn to a private insurance scheme. This decision is however also dependant on a “practicable” salary. There is currently no statutory obligation on employers to provide for an occupational retirement scheme.

Sources:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

Recruiters should be careful when posting job positions so as not to land themselves in hot water with the Advertising Standards Authority of South Africa (ASA). In a recent incident, a respondent using the industry news website Bizcommunity, had to issue an apology for posting a job position with “Native English Speaker” as a requirement.

Excluding applicants on the basis of language, race or ethnicity

Mr Zibi lodged a consumer complaint against an advertisement which appeared on the website’s job listings. Among the advertised requirements was, “Native English speaking”.

Zibi claimed that the advertisement is discriminatory on the basis of language, which is a violation of the South African constitution and labour law.

The respondent in the matter claimed that the advertisement had already reached its expiry date and that the phrase is common. However, after having had internal talks around the issue, they decided to amend the advertisement to avoid any future types of these complaints. The amendment involved changing the position requirement to “Exceptional English writing and communication skills”, which they believed should address the issue.

Tread lightly

Although it was a small incident, it should not be treated casually, since some people may not be satisfied with an apology. The damage it could potential do to a company’s image should also not be underestimated. A simple error may lead to an extensive amount of time being taken to rectify the problem, which means a loss of money.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW BINDING ARE BODY CORPORATE FINES?

In an estate or sectional title scheme, it is challenging to ensure that everyone will stick to the conduct rules and to aid this, body corporates often fine the chancers. How far can the body corporates stretch their fining, and are these fines binding?

Each body corporate may choose what to impose formally in their code of conduct unless a rule is already part of the conduct rules in terms of the Sectional Titles Act. This is the only way the fines can be binding as enforceable, and they have to be reasonable and fair.

When fines are imposed, they cannot favour or benefit certain residents while leaving others out of mind. Substantially, they must serve the same purpose. The notification of a fine must be received by the owner or resident through writing. There is a correct way in which fines may be imposed:

  1. Complainants to lodge complaint

This must be lodged in writing or through an incident report to the trustees or the estate’s managing agent.

  1. Notice of particulars of the complaint

The owner and the tenant, or the resident, must be given a notice of the particulars contained in the complained as well as reasonable time to respond to the complaint. The resident/tenant must also be given enough information regarding the incident, including the rules that they may have broken.

  1. Second notice

Should the owner or resident not heed the first notice, a second notice may be issued mentioning the contravention is continuous or has been repeated. The transgressor must then be invited to a trustee meeting where they will be given a platform to present their case or defend themselves.

  1. The hearing before the fine

Before a fine is imposed, a hearing must have taken place. In the meeting, witnesses may be called to testify in favour of the transgressor and the transgressor may state their side of the story. Those who laid the complaint may also be cross-examined.

  1. Discussing evidence

Once the hearing is over, the trustees may then review the evidence presented to them and make a decision on whether or not to impose the fine.

If a fine is imposed, the amount should be reasonable, substantial and be proportionate to the purpose of the penalty.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

Sources:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

IS UBER LEGAL?

Following the death of one of Uber’s employees due to clashes between Uber drivers and taxi drivers, the Department of Labour has clarified its position in terms of labour legislation.

Recently, the Department of Labour acknowledged and applauded the ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) that Uber drivers are the employees of the company. This decision was in line with the Labour Relations (Act 66 of 1995) as amended. “With regard to the Uber drivers, like any employees, there are no exceptions. They are fully protected by the South African Labour Laws including the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)”, Commissioner Vuyo Mafata said.

Under the Labour Relations Act, any person who falls in that category is an employee and therefore fully covered in terms of labour legislation.

What happens if an Uber driver is injured?

The COID Act compensates employees who are injured or die during the cause of duty. Therefore, it means the beneficiaries of the Uber driver who died after he was allegedly attacked in Pretoria last month qualify for compensation according to the Act. However, the Fund will have to be provided with all the required documents in order to process the claim.

What about the employer, Uber?

For Uber drivers, all of this is good news. Employees will not be penalised or forfeit their benefits because of unregistered employers, instead the employers will be fined. Furthermore, employers must register their companies with the Compensation Fund so that employees are covered under the COID Act.

Reference:

  • “Department of Labour’s position in terms of Uber drivers and CCMA ruling”, Lloyd Ramutloa – the Department of Labour.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN SURROGATE PARENTS GET MATERNITY LEAVE?

Alex and Ben are in love and decide to enter into a civil union on 31 October 2010 in terms of the Civil Union Act[1]. Everything is going great and a year later they decide as a couple to enter into a surrogacy agreement with a surrogate mother in terms of which they shall have a baby. The surrogacy agreement was in accordance with the Children’s Act[2] and was confirmed by Court Order.

Ben and Alex discussed the logistics pertaining to their new bundle of joy. In terms of the Surrogacy Agreement they will be handed the child directly after birth, without the surrogate even catching sight of it. One or both of them will have to be available to care for the new-born from the moment of birth.

They decided that Alex would be the one to apply to his employer for paid maternity leave for a period of four months. This maternity application to his employer was in terms of the prescriptions of the Basic Conditions of Employment Act[3] (BCEA) and more specifically in terms of his company’s policy on maternity leave.

The company’s decision

Alex received feedback from his Human Resources Department, informing him that his application for maternity leave was rejected in terms of the company’s policy and the BCEA, as neither provides for the issuing of maternity leave for surrogate parents. As a counter offer Alex was offered and subsequently accepted two months paid adoption leave and two months’ unpaid leave.

Alex referred the dispute to the CCMA on the basis of unfair discrimination, because his company refused to grant his application for maternity leave due to the fact that he is not the biological mother of his child. They further argued that a commissioning parent party to a surrogacy agreement is not entitled, in terms of their company policy, to the full and due four months paid leave as females are under the same policy.

Alex was not at all satisfied with the treatment received by his company and he felt that he has been discriminated against, as the Children’s Act and the Civil Union Act both recognised his status and rights as a commissioning parent. There was therefore no excuse as to why his company and the BCEA should not recognise it as well.

The CCMA, upon hearing the matter, established that Alex’s company’s policies were similar but more stringent than the BCEA in that they provided separately for adoption leave as offered to Alex and Ben, and not at all for surrogacy rights to leave. Furthermore, it came to light that due to recent legislative developments as mentioned above, there was no reason why Alex should not be entitled to maternity leave and that such maternity leave should be granted for the full and/or same period as any other mother is entitled to.

Upon hearing submissions from Alex, Ben and Alex’s employer the CCMA decided that by refusing Alex’s application for maternity leave Alex was unfairly discriminated against by the company in its implementation and structure of its archaic maternity leave policy.

The result

The CCMA ordered that Alex be paid an amount equivalent to two months’ salary for the previously granted unpaid leave. In addition, Alex’s company must recognise the status of parties to a civil union and not discriminate against the rights of commissioning parents who have entered into a surrogacy agreement, in applying its maternity leave policy. The company was also ordered to pay Alex’s costs of having to bring this application.

Legislative intervention is needed in this regard in order to adequately and undeniably address the rights of commissioning parents to maternity leave. This case pertained to company policies and was addressed as such, but Alex and Ben initially sought relief for themselves and other similarly placed applicants so as to prevent unfair discrimination against them in this regard.

 Reference:

  • [1] Act 17 of 2006
  • [2] Act 38 of 2005; Chapter 19
  • [3] Act 75 of 1997; Section 25 (hereinafter BCEA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

SHOULD A DOMESTIC WORKER GET A CHRISTMAS BONUS?

Doris, a domestic worker, demands a Christmas bonus from her employer in the amount of R1 000. She has not yet been employed for longer than a year and as a result no prior agreements or expectations have been created in this regard. When Christi, her employer, informs Doris that she will not pay her a Christmas bonus, Doris says that she will report Christi to the CCMA for unfair labour practices …

The situation

Doris is a domestic worker who has been working at a private residence in Durbanville for just under a year now. Christi, Doris’s employer, is not in a financial position to offer Doris a Christmas bonus, let alone a bonus to the amount requested by Doris. Christi explains to Doris that she cannot pay her a bonus due to economic constraints, but next year they could revisit the conversation and see if things have improved. It would also be based on Doris’s performance during the year.

Doris got very upset by this response threatens to take Christi to the CCMA for unfair labour practices. Christi feels apprehensive and is uncertain as to her stance in law on this point, so she consults an attorney to advise her.

The law

Upon obtaining legal advice Christi learns that labour law legislation provides no guidance on the question of bonuses. In the absence of a contractual term regulating bonuses, Christi learns that it is up to her to decide whether she wants to pay Doris a bonus or not.

Due to a Christmas bonus being considered as gratuitous payment by an employer to an employee, it is a natural corollary that the employee is granted same in exchange for a job well done, or for exceptional service which reaches beyond the call of duty in the year that has passed. This warrants a reward or tip over and above the normal agreed upon wage for services rendered.

Things Christi was advised to consider when making such a decision was inter alia Doris’s performance in the past year and Christi’s own financial position. She should also keep in mind that, should she decide to pay what Doris has demanded, a reasonable expectation may be created in the years to come for Christi to continue to pay such a bonus.

Conclusion

Doris does not have an all-encompassing right to receive a Christmas bonus. Further, due to the fact that no reasonable expectation has yet been created, Christi’s reasons for and decision not to pay Doris a bonus cannot be seen as an unfair labour practice. Thus providing Doris, in this particular case, no grounds on which to approach the CCMA to claim performance from Christi.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RIGHT OF A DOMESTIC WORKER TO A CHRISTMAS BONUS

Doris, a domestic worker, demands a Christmas bonus from her employer in the amount of R1 000. She has not yet been employed for longer than a year and as a result no prior agreements or expectations have been created in this regard. When Christi, her employer, informs Doris that she will not pay her a Christmas bonus, Doris aggressively shouts that she will report Christi to the CCMA for unfair labour practices …

Doris is a domestic worker who has been working at a private residence in Durbanville for just under a year now. On 15 December 2015 Doris approaches her employer to demand a R1 000 Christmas bonus. Christi, Doris’s employer, is not in a financial position to offer Doris a Christmas bonus, let alone a bonus to the amount requested by Doris. Christi explains to Doris that she cannot pay her a bonus due to economic constraints but that next year they could revisit this conversation and see if things have improved. It would also be based on Doris’s performance during the year.

Doris gets very upset by this response and starts shouting at Christi, threatening to take her to the CCMA for unfair labour practices. Christi feels apprehensive and is uncertain as to her stance in law on this point, so she consults an attorney to advise her.

Upon obtaining legal advice Christi learns that labour law legislation provides no guidance on the question of bonuses. In the absence of a contractual term regulating bonuses, a previous arrangement or previous payments of a bonus Christi learns that it is up to her to decide whether she wants to pay Doris a bonus or not.

Due to a Christmas bonus being considered as gratuitous payment by an employer to an employee, it is a natural corollary that the employee is granted same in exchange for a job well done, or for exceptional service which reaches beyond the call of duty in the year that has passed. This warrants a reward or tip over and above the normal agreed upon wage for services rendered.

Things Christi was advised to consider when making such a decision were inter alia Doris’s performance in the past year and Christi’s own financial position. She should also keep in mind that, should she decide to pay what Doris has demanded, a reasonable expectation may be created in the years to come for Christi to continue to pay such a bonus.

Doris does not have an all-encompassing right to receive a Christmas bonus. Further, due to the fact that no reasonable expectation has yet been created, Christi’s reasons for and decision not to pay Doris a bonus cannot be seen as an unfair labour practice. Thus providing Doris, in this particular case, no grounds on which to approach the CCMA to claim performance from Christi.

Reference list:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)