Lesson 1, Topic 1
In Progress

6.3 Implement and manage human resource and labour relations policies and acts

ryanrori June 19, 2020

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1.  Be responsible for the development and maintenance of effective human resource policies and practices.

 1.1 The ability is demonstrated to take responsibility to develop and maintain human resource policy on employment equity.

 The Human Resources Management (HRM) function includes a variety of activities, and key among them is deciding what staffing needs you have and whether to use independent contractors or hire employees to fill these needs, recruiting and training the best employees, ensuring they are high performers, dealing with performance issues, and ensuring your personnel and management practices conform to various regulations.

Activities also include managing your approach to employee benefits and compensation, employee records and personnel policies. Usually small businesses (for-profit or non-profit) have to carry out these activities themselves because they can’t yet afford part- or full-time help. However, they should always ensure that employees have and are aware of personnel policies which conform to current regulations. These policies are often in the form of employee manuals, which all employees have.

Note that some people distinguish a difference between HRM (a major management activity) and HRD (Human Resource Development, a profession). Those people might include HRM in HRD, explaining that HRD includes the broader range of activities to develop personnel inside of organisations, including, e.g., career development, training, organisation development, etc.

There is a long-standing argument about where HR-related functions should be organized into large organisations, e.g., “should HR be in the Organisation Development department or the other way around?”

The HRM function and HRD profession have undergone tremendous change over the past 20-30 years. Many years ago, large organisations looked to the “Personnel Department,” mostly to manage the paperwork around hiring and paying people. More recently, organisations consider the “HR Department” as playing a major role in staffing, training and helping to manage people so that people and the organisation are performing at maximum capability in a highly fulfilling manner.

Recently, the phrase “talent management” is being used to refer the activities to attract, develop and retain employees. Some people and organisations use the phrase to refer especially to talented and/or high-potential employees.

The phrase often is used interchangeably with the field of Human Resource Management although as the field of talent management matures, it’s very likely there will be an increasing number of people who will strongly disagree about the interchange of these fields.

As part of the HR function, the following policies and procedures must be implemented and adhered to in the organisations HR policies and procedures:

Policy on employment equity

In terms of Chapter 2 of the Employment Equity Act No 55 of 1998, which was promulgated on the 9 August 1999, an employer may not:

‘Discriminate against an employee or an applicant for employment, directly or indirectly on any arbitrary ground, including but not limited to ‘race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth’.

Every designated employer is required to design and implement an employment Equity plan. The purpose of the employment Equity plan is to enable the employer “to achieve reasonable progress towards employment Equity”, to assist in eliminating unfair discrimination in the workplace, and to achieve equitable representation of employees from designated groups by means of affirmative action measures. An employment Equity plan therefore must clearly set out the steps that the employer plans to follow to achieve these objectives.

In order to assist employers, the Department of Labour published a Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans. Employment Equity and affirmative action applies to all designated employers and their employees, particularly those employees from designated groups.

Designated employers are employers who employee 50 or more employees, employers who employ less than 50 employees but whose annual turnover exceeds or equals the amounts in schedule 4 of the EEA, or an employer who has been declared a designated employer in terms of a collective agreement.

1.2 The ability is demonstrated to take responsibility to develop and maintain human resource policy on skills development.

Policy on skills development

Skills development is the training and development that the employer provides to his employees in the workplace.

It is often construed that only training that is provided by an outside training provider falls within the definition of skills development.

The definition also includes on-the-job training provided by the employer. In the late 80s, Government started researching a new training methodology – Outcomes-Based Education (OBE). This method of training was adopted from the then Commonwealth training method, which made provision for people qualifying not only by formal education, but also by informal on-the-job training based largely on their experience.

The system made provision for what is now known as “recognition of prior learning” – or  (RPL) –  which basically entails testing a person’s ability to do a specific job and awarding this person either a qualification or credits towards a qualification, based on his current knowledge and ability to perform the required task.

In layman’s terms this means that if a person has been working as a plumber for the last 12 years this person may request a training institution to perform an RPL exam, to assess his capability and award him with a qualification based on his experience. It is therefore possible for him to receive a plumbing qualification based on his experience, without having served a recognized apprenticeship or learnership.

This new training methodology also created what is now known as the National Qualifications Framework (NQF) system, which allows educational levels from different industries to be ranked in parallel on a single system.

In layman’s terms this means that you will be able to draw a parallel between the qualification of a secretary and a salesperson or a chartered accountant and a medical doctor.

1.3 The ability is demonstrated to take responsibility to develop and maintain human resource policy on performance evaluation.

 Policy on performance evaluation

Performance observations are conducted on a daily basis through interactions between managers and peers. These observations help managers and employees to determine the context for which a formal performance evaluation will transpire. It is not necessary for a manager to privately meet an employee each time an assessment is conducted.

Performance reviews are one method by which the Company builds a case for each employee’s attitude, strengths and areas of improvement. Although a wage change may be given during a review, completion of a Performance review is not a guarantee to expect changes in compensation. Many other factors are related to the frequency and amount of compensation changes if they occur.

Managers must formally record in writing an opinion of each employee under their direct supervision who has been with the company for more than 90 days and at least once every six months thereafter. Human Resources will notify managers of those employees who are due to be reviewed.

Upon conclusion of the evaluations, each employee will have time to read the evaluation and respond for the permanent record. Following the employee’s review process; they will have an opportunity to formally critique their direct supervisor with the Human Resource manager present. This bottom up evaluation will also be recorded in the manager’s file.

 1.4 The ability is demonstrated to take responsibility to develop and maintain human resource policy on recruitment and selection criteria.

 Policy on recruitment and selection criteria

The company strives to select employees who are well suited for the positions they fill. In nearly every case, our selection process involves a careful review of the requirements of an available position and the qualifications of the individual applicants. All non-employee applicants are required to complete a job application and, where required, submit a resume. Likewise, depending on the position available, employees will be asked to interview with the individuals who will be involved in the selection process. References will be checked. Moreover, when necessary or required, the company will also conduct employee background checks (including criminal record checks), credit investigations (with proper employee authorization), and driver’s license checks.

Employee applicants are required to complete an in-house application if they are interested in an available position. The company encourages employees to apply for any position in which they are interested and qualified. While selection process policies appear in many employee manuals, every employer should consider carefully whether to include such a policy in its manual. Why include a selection policy in an employee manual when the employee has already been selected?

Clearly, a strict selection policy should not appear in a manual if an employer has a flexible approach to recruitment and hiring. Selection policies will haunt employers who do not abide strictly by the terms of their policy. Even where employers follow their selection process religiously, they should ensure that the policy contains language allowing for discretion and exceptions.

Reference checks are encouraged, but an employer should follow a uniform practice when conducting reference checks. Employers must be sensitive to the fact that liability can arise from the manner in which they conduct their reference and background checks. Authorization is required for credit and criminal background checks and information must be provided to employees who are not selected as a result of the credit check. Some states have enacted anti-discrimination statutes regarding non-selection of employees who have criminal records.

Moreover, some employers are subject to statutory or regulatory requirements regarding background checks and such checks must be conducted in conformity with all applicable laws and regulations. Other employers, who are not subject to such requirements, also must conduct checks in a manner so as to avoid liability for negligent hiring or defamation claims. Employers should contact their labour and employment counsel regarding their reference and credit check practices.

 As changes occur in the level of personnel in an organisation the HR specialist must maintain a supply of personnel to meet requirements. To do this they must go through a process of recruitment and selection.

Your Complete Recruitment Solution

Example Policy

RECRUITMENT SELECTION AND APPOINTMENT POLICY

 CONTENTS:

  1. OBJECTIVES
  2. SCOPE AND APPLICATION
  3. RECRUITMENT PRINCIPLES
  4. SELECTION PRINCIPLES
  5. RECRUITMENT PROCESS

5.1 Replacement of an existing incumbent who has resigned, been dismissed, retired or passed away.

5.2 Recruitment for a new, unbudgeted position or filling a vacancy that has arisen through a retrenchment

5.3 Job specification

  1. SUCCESSION PLANNING
  2. SELECTION PROCESS

7.1 Selection phases

7.2 Process of selection

7.3 Selection for an interview

7.4 Interviewing

  1. EXIT INTERVIEW
  2. RECORD KEEPING
  3. INTERVIEW PANNEL

 OBJECTIVES

The purpose of this Policy is to:

1.1. Attract and retain high calibre employees who are suitably qualified to perform the inherent requirements of the job;

1.2. Facilitate effective and efficient recruitment and selection;

1.3. Align recruitment and selection practices with all legal and ethical requirements;

1.4. Ensure that recruitment and selection decisions take objective criteria into account and that procedures are fair;

1.5. Promote equal opportunity in the workplace by eliminating unfair discrimination; and

1.6. Facilitate the equitable representation of Africans, Indians, Coloureds, women and people with disabilities (“designated groups”) in all occupational categories and levels in the workforce through promoting the objectives of the Municipality employment equity Policy.

  1. SCOPE AND APPLICATION

2.1. This Policy is applicable to all employees at the Municipality.

2.2. The Human Resources practices of recruitment, selection, transfer, and promotion are covered by this Policy.

2.3. All persons involved in recruitment are required to follow this Policy when making recruitment decisions.

2.4. This Policy may be amended from time to time on notification to all

employees.

  1. RECRUITMENT PRINCIPLES

3.1 In order to facilitate transformation and achieve Municipality Transformation Targets, where there is no, or a small, pool of suitably qualified persons available internally for promotion to a position, that position will be advertised internally and externally simultaneously, to maximise the number of candidates from designated groups.

3.2 If there is a reasonable pool of suitably qualified persons from the designated groups available internally for promotion to a position, the position will be advertised internally first for a period of five working days and thereafter advertised externally if a candidate is not chosen from the internal candidates.

3.3 Medical examinations will not be used as a selection method, unless it is justifiable in the limited circumstances set out in section 7(1)(b) of the Employment Equity Act 55 of 1998, as amended. No testing will be permitted to determine an employee’s HIV/AIDS status, unless in accordance with the requirements of the law.

  1. SELECTION PRINCIPLES

The following selection principles must be adhered to:

4.1 The recruitment and selection process should be based on an objective assessment of whether the candidate is suitably qualified for the specific post in question;

4.2 A candidate may be suitably qualified for a specific job if he or she meets the competency criteria/inherent requirements of the job by virtue of any one or any combination of that candidate’s:

4.2.1 Formal qualifications;

4.2.2 Prior learning;

4.2.3 Relevant experience; or

4.2.4 Capacity to acquire, within a reasonable time, the ability to do the job;

4.2.5 “Competency criteria/the inherent requirements of the job” may be defined as the core results to be achieved in a specific position and the knowledge, skills and personal abilities necessary to achieve such results; and

4.2.6 Selection criteria must be fair and reliable, and must be openly and consistently applied.

5 RECRUITMENT PROCESS

The following process should be applied whenever a vacancy needs to be filled, irrespective of whether it is for external or internal recruitment, transfers or promotions. To ensure that optimum staffing levels are maintained, strict head count control measures exist. The replacement of existing vacancies is not automatic, and must be aligned with Municipal annual headcount, which is budgeted for based on annual headcount approval from Director Corporate Services in consultation with the Director Finance.

5.1 Replacement of an existing incumbent who has resigned, been

dismissed, retired or passed away

In circumstances where a vacancy has been budgeted, either as a new position or to replace someone who is leaving, Mayor, Director Corporate Services and the Municipal Manager’s authorisation is required.

5.2 Recruiting for a new, unbudgeted position or filling a vacancy that has

arisen through a retrenchment

In circumstances where the need has arisen to recruit and where the position/ headcount/staff costs have not been budgeted for, The Mayor, Director Corporate Services and the Municipal Manager’s approval is required. Submissions for approval must include detailed feasibility and business reasons for such proposed recruitment.

5.3 Job Specification

Once a vacancy has been identified, a job specification must be compiled with the assistance of the HR Manager. The specification is fundamental to a proper and legally correct recruitment process. Job specifications must be completed before the process is implemented.

  1. SUCCESSION PLANNING

6.1 Where there is an identified successor who has been properly assessed and developed in line with the requirements for the position, this person must be considered for the vacancy in the first instance. Care must be taken that this is an unbiased and objective process.

6.2 There must be adequate historical documentation, proof of training and development and sound assessment and counselling data where appropriate to support decisions taken regarding identified successors in Municipality’s workforce.

7 SELECTION PROCESS

7.1 Selection Phases

There are two selection phases:

7.1.1 Selecting candidates sourced from the adverts for interviews; and then

7.1.2 Selecting candidates after interviews for the position.

The same criteria and factors must be considered for each of these phases.  Records must be kept of reasons for not selecting a candidate at any stage of this process. Such record must be kept for a minimum of twelve months in terms of the current legislation.

7.2 Process of Selection

The following steps must be followed:

7.2.2 HR will receive all applications and will screen the applications against the established minimum criteria as listed in the job specification. This will take place within a time frame agreed with HR. This screening includes, but is not limited to, document review and telephonic or initial interviewing. The purpose is to screen out applications that do not meet the minimum criteria for the position as specified. Where applications do not meet the minimum criteria, HR in the case of potential candidates, must inform the candidate of this.

7.2.3 The next stage of the selection process is where HR reviews screened applications in order to assess the extent to which they meet or exceed the requirements for the position. It is at this stage that HR will proceed with competency and behavioural assessments as appropriate in terms of the job specifications. HR must ensure that each candidate receives feedback regarding the assessments.

7.3 Selection for an Interview

7.3.1 When selecting job candidates for an interview, the following process must be followed:

7.3.2 Determine whether the candidate is suitably qualified to perform the inherent requirements of the job as defined in paragraphs 4.2 and 4.2.5 above;

7.3.3 All the candidates who do not receive a positive answer to the question contemplated in clause 5.3.1. Above can be rejected, unless the disqualifying factor can reasonably be accommodated;

7.3.4 Only if all the suitably qualified candidates are from the same group and no potential for unfair discrimination exists can advantageous issues beyond the inherent requirements of the job be considered;

7.3.5 Reference checking may be used to assess whether a candidate is suitably qualified for the position. Reference questions may relate to an objective assessment of whether the candidate meets the competency criteria of the job in question.

7.4 Interviewing

7.4.2 The HR Manager with the Director and Chairperson Corporate Services will interview short-listed candidates, using standardised assessment data and interview guides as the basis for the interviews.

7.4.3 The HR Manager, Director and Chairperson Corporate Services must achieve consensus on the results of the interview process. The reason for the need to achieve consensus is to ensure consistency and to avoid any allegations of arbitrary decision-making.

7.4.4 In the event that consensus is not achieved, the details may be referred to the Municipal Manager and Mayor. The Director’s decision will be overruled only in the event that the selection decision would contravene any South African employment law.

7.4.5 Every interview should have a panel of at least two persons from the Municipality present, one of who must be the HR Manager.

7.4.6 The interviewers must ask each candidate the same questions based on the standardised interview guides.

7.4.7 The HR Manager will arrange for training to be provided to management on interview techniques, to ensure that the interviewers are fair, consistent and structured in their technique, and that the interview focuses on the inherent job requirements as set out in the job specification, and that no discriminatory questions are asked.

7.4.8 Following the interview, the HR Manager and Director must evaluate the interviewee in terms of whether or not they meet the competency criteria set out in the job specification.

7.4.9 All notifications to unsuccessful candidates and all job offers must be in writing and may only be issued by the Director Corporate Services.

7.4.10 Once the candidate has been selected, the HR Manager will draw up the letter of appointment, based on negotiations between the Director and the candidate. The package offered must be equitable, consistent and take cognisance of internal equity and market competitiveness.  The Managing Director must sign the letter. The HR Manager will contact the successful candidate and make the offer.

7.4.11 The HR Manager will ensure that the letter of appointment is signed and returned to the Municipality. HR will ensure that the documentation is processed for Payroll purposes.

7.4.12 The HR Manager will advise the relevant Director on the induction of the new employee and will check to ensure that adequate care and introduction are effected upon the new employee’s first few days of employment.

8 EXIT INTERVIEW

Upon termination of employment for any reason whatsoever, all employees will have an exit interview conducted by the HR Manager. The purpose of the interview will be to obtain information about the employee’s work experience, including its culture, diversity and training. Importantly this also ensures that the employee does not leave the service with an unresolved grievance.

9 RECORD KEEPING

The HR Manager will maintain a file on every position being recruited for, with details of candidates, actions, results, interviews, scores, communications and any correspondence. These files will be kept for seven months after which the contents will be destroyed. Where the files contain details of internal candidates, these details must be filed in their personal files.

 

10 INTERVIEW PANNEL

During interviews the following stakeholders will attend as indicated per post level.

Post level 1 to 3: EXCO, Departmental Heads and unions to observe

Post level 4 to 6: Municipal Manager, Director Corporate Services, Departmental Head, Chairperson of Corporate Services, and unions to observe.

Post level 7 and lower: Chair person Corporate Services, Municipal Manager, Director Corporate Services, Director or relevant Department head, relevant Committee Chairperson and trade unions to observe.

 1.5 The ability is demonstrated to take responsibility to develop and maintain human resource policy on training.

Policy on training

The purpose of a Training and Development Policy is to ensure that employees are appropriately trained and developed, to meet business plans and strategies. The Training and Development Policy should ensure that training and development opportunities are appropriate and open for access by all relevant employees. See Handout

 1.6 The ability is demonstrated to take responsibility to develop and maintain human resource policy remuneration.

Policy remuneration

The purpose of the Remuneration Policy is to ensure that employees receive a motivating remuneration package that is also fair and market and /or demand related. Employees must be fairly rewarded and recognised for their performance. Basis for calculation of remuneration must be transparent and equitable. Recognition strategies should operate regularly for high performers. The remuneration Policy should ensure that remuneration is not used to obtain favours or inappropriate control.

Definition

Reward of employment as pay, salary, or wage, including allowances, benefits (such as company car, medical plan, pension plan), bonuses, cash incentives, and monetary value of the non-cash incentives.

Determine a specific wage level

Factors that influence the determination of salaries and wages

ƒ    Legislation

Minimum wage agreements between trade unions and employers and the wage act in certain industries.

ƒ    Labour demand and supply
If the supply is high the wage levels may be lower.     

 

ƒ    Level of specialisation

More specialised labour is usually paid more.

ƒ    Financial position of the business

The better the financial position of the business the better salaries they can pay to attract highly skilled and qualified workers.

ƒ    Cost of living

During periods of high inflation, the consequences are serious for employers and employees.

When determining the remuneration level for your business, you will have to keep the following factors in mind:

s How the remuneration in your business compares with that of similar businesses.

s You must compare a specific position in your business with a similar position in another business.

s If your remuneration level does not compare favourably with the other business, you will find it difficult to attract people and to retain your current staff.

You will also have to determine a wage structure for the different positions in your business. This can be done by job evaluation of all the positions in the business to determine the internal relationships between posts. To determine the remuneration of two people with the same job you must consider the following aspects:

Seniority — number of years in the job.

Qualifications — formal training of employee.

Performance/achievements — determined through performance appraisal and job evaluation.

Methods of payment

  • Time or date rates

Workers are paid per time unit worked (per hour, per day, per week, etc.).

  • Piece rates or incentive pay

Workers are paid according to their productivity. A worker’s pay is therefore linked to his performance. Commission to a sales person is a good example.

Legal aspects

The Basic Conditions of Employment Act (1997)

The following aspects of the Act will have an influence on the salary or wage policy in your business:

 

 

Working hours

 

The maximum ordinary weekly hours for all employees.

 

Annual leave

 

An employee is entitled to three weeks fully paid leave after every

12 consecutive months of work.

 

Sick leave

 

Employees are entitled to six weeks paid sick leave in a three year period.

 

Maternity leave

 

A pregnant employee is entitled to 4 months’ maternity leave.

 

Public holidays

 

All public holidays are paid holidays.

 

Records — An employer must keep a time and salary register for all employees.

 

Income tax

  • SITE

Employees earning up to R60 000 per year pay SITE (standard individual tax employee) and they do not have to complete a tax return. The employer deducts income tax on a monthly basis according to the income tax scales.

  • PAYE

Employees who earn more than R60 000 per year pay PAYE (pay as you earn) on the amount above R60 000 and they must complete a tax return. People who are self-employed also pay PAYE and must pay provisional tax at the end of February and August on their income of the previous year.

Income Tax Table

The income tax table is available from the Receiver of Revenue and can serve as a general guideline when determining how much tax an employee will pay per year

 Fringe benefits for employees

The following are compulsory employee benefits:

UIF

The Unemployment Insurance Fund provides insurance for employees who contribute to the fund for loss of income when they lose their jobs. One percent of the gross income of workers must be deducted. The employer must contribute the same amount.

Workmen’s compensation

All workers must be registered and the business must pay their contribution. This fund provides for insurance cover against the loss of income as a result of injury or death of a worker while on duty.

The following are voluntary employee benefits:

Pension funds

Most employers make provision for pension benefits for their employees when they retire.

Medical Aid schemes

Medical aid schemes make provision for employees and their dependants for the payment of medical cost.

Car allowances, bonuses and the provision of meals are other benefits that are often part of salary packages.

Determination of minimum wages

Minimum wages are usually negotiated for each industry between the relevant trade unions and employers organisations.

 Example of numeration policy

REMUNERATION POLICY 2009-2011

 

  1. PREAMBLE

The Mission of the University of KwaZulu-Natal is to be academically excellent, innovative in research, critically engaged with society and demographically representative. The University recognises that the achievement of this mission depends on the quality and commitment of its staff. It has accordingly set one of its strategic goals to become an employer of choice.  To achieve its mission and strategic objectives the University shall adopt a suitable remuneration policy which shall ensure that all staff are remunerated fairly and are treated consistently throughout the University. At the same time the University shall adopt proactive remuneration strategies aimed specifically at the academic sector, who are core to its Mission, to attract, retain and motivate academic staff.  The Objectives of the Remuneration Policy shall be to ensure that the remuneration system:

1.1     Rewards individuals for the achievement of the University’s objectives and motivates high levels of performance;

1.2     Rewards exceptional performance by individuals through the performance management system;

1.3     Allows the University to compete effectively in the labour market and to recruit and retain high calibre staff;

1.4     Achieves fairness and equity in remuneration and reward.

The Remuneration Policy is a document that forms the basis of remuneration within the University of KwaZulu-Natal. The Remuneration Committee of Council shall ensure good governance and oversight of the remuneration policy. This policy has been benchmarked with the remuneration policies of several other South African Higher Education Institutions and takes into account the Guidelines for the Governance, Management and Disclosure of Institutional Remuneration in the Higher Education Sector circulated by Higher Education South Africa (HESA)1.

  1. DEFINITION OF KEY TERMS

In this policy, the following words shall have the following meanings, unless the context clearly indicates otherwise:

Acting Appointment refers to a temporary appointment of an existing employee to a higher level position vacated by an incumbent who is expected to return to the position at which time the acting appointee will return to his/her former position.

All Industries Market/National Circle refers to the total database, or all participants to the relevant South African market survey, irrespective of industry or business focus.

Basic remuneration or salary is the difference between the total cost of employment and the costs of both compulsory, statutory contributions and benefits (e.g. medical aid, group life, Unemployment Insurance Fund (UIF) and retirement or pension fund contributions) and the individual’s choice of benefits.

Basic remuneration plus add-on benefit approach refers to a traditional approach to remuneration where the emphasis is on a basic salary which is calculated up front and to which all benefits are added.

COIDA refers to Compensation for Occupational Injuries and Diseases Act.

Compulsory Contributions and Deductions are all contributions or deductions that are compulsory in a total remuneration package and include pension/provident fund contributions, medical aid, group life, COIDA and UIF contributions.

Council is the governing body of the University constituted in terms of the Higher Education Act.

Effective date is the date of the Policy coming into operation.

Fund Salary refers to that part of the ‘basic salary plus add on’ package which is used to calculate the pension or retirement fund contribution for an individual.

Mean shall refer to the average remuneration for a particular category of staff.

Median (50th Percentile) means the middle value of remuneration within a particular sample: 50% of the sample receives a higher value of remuneration and 50% receive a lower value.

Peromnes refers to a job evaluation system, prevalent in the tertiary education sector, which scores jobs on a number of factors such as problem solving, pressure of work, job impact, consequence of judgement, educational qualifications, training and experience required. The aggregate score is applied to a sliding scale to determine job grade.

Policy shall mean this Remuneration Policy for the University of KwaZulu-Natal.

Remuneration refers to salary or pay which an employee receives in return for work or services rendered to the University.

SARS is the South African Revenue Service.

The Tertiary Circle refers to the participants of the relevant market survey that form part of the tertiary education sector in South Africa.

Total guaranteed Remuneration Package (TRP) approach refers to an approach to remuneration in which all benefits, both compulsory and voluntary are converted to their cash value equivalent. The employee may structure the total package within prevailing tax and other legal provisions. In this regard the package

must include compulsory minimum core benefits relating to inter alia, medical aid and retirement/pension fund. The TRP represents the total cost attached to a particular position in the University and includes basic remuneration, statutory deductions, service bonus, retirement or provident fund contribution, medical

scheme contribution, group life insurance and applicable allowances such as medical, housing, entertainment, telephone or cell phone and travel allowances. It does not include tuition remission and bursaries for staff members, their spouses or domestic partners and dependent children.

UIF refers to Unemployment Insurance Fund.

University is the University of KwaZulu-Natal.

Upper Quartile (75th Percentile) means the upper quartile value of remuneration within a particular sample: 25% of the sample receives a higher value of remuneration and 75% receive a lower value.

Variable remuneration is any ad-hoc remuneration not included in the total guaranteed remuneration package which relates to overtime, shift allowance, standby allowance/call-out allowance and other forms of remuneration that are not guaranteed, including any incentive or performance bonuses or scarcity allowance.

In this policy, unless inconsistent with the context, words referring to any one gender shall include a reference to the other gender; the singular shall include the plural and vice versa; and natural persons shall include artificial persons and vice versa.

 

  1. POLICY STATEMENT

The University seeks to remunerate staff members in a manner that supports the achievement of the University mission, vision and strategic objectives2 whilst attracting and retaining scarce skills and rewarding high levels of performance.

  1. GUIDING PRINCIPLES

Support for Strategic Objectives: Remuneration and reward frameworks and decisions shall be developed in a manner that is consistent with, supports and reinforces the achievement of the University vision and strategy.

Transparency: The process of remuneration management shall be transparent, conducted in good faith and in accordance with appropriate levels of confidentiality.

Internal equity: The University shall remunerate all staff fairly in terms of their roles within the organisation. Positions in the support sector shall be formally evaluated to determine their relative weight in relation to other support positions within the University and consequently their Peromnes© grade on which the remuneration shall be based.

Market-Related Remuneration: The University shall measure its remuneration practices against both the local and national market through the use of remuneration surveys and through benchmarking with other similar institutions.

Flexibility: Remuneration and reward offerings shall be sufficiently flexible to meet both the needs of individuals and those of the institution whilst complying with relevant tax and other legislation.

Performance-Driven Remuneration: The University shall entrench a culture of performance driven remuneration through the implementation of the Performance Management System.

Affordability and Sustainability: One of the rationales for mergers was to create financially sustainable Universities. The Department of Education Guidelines3, recommend that the cost of salaries and benefits should not exceed sixty three per cent of the University’s recurrent, unrestricted income.

  1. POLICY PROVISIONS

 

5.1 APPROACHES TO REMUNERATION

Two approaches to remuneration currently prevail. The “Basic salary plus Add on” Approach, which currently applies to the majority of University staff, starts with a basic or fund salary determined by the University to which a number of benefits are added to achieve the total cost of employment. The alternative approach is a total remuneration package approach where the total cost of employment is determined upfront by the University. The basic remuneration is the difference between the total cost of employment and the costs of both compulsory contributions and benefits (e.g. medical aid, group life, Unemployment Insurance Fund & retirement or pension fund contributions) and the individual’s choice of benefits.  The Total Remuneration Package (TRP) approach has advantages for both the University and individual staff members and the University shall phase in a total remuneration package approach to remuneration for all staff, over a three year period from the effective date.

The following advantages of Total Remuneration Packages have been identified:

  • Easier to structure packages in a tax efficient manner.
  • Flexibility for employees in structuring packages according to personal needs,within prevailing legislation.
  • Minimises the University’s exposure to open-ended benefit liabilities.
  • More equitable and defensible approach to remuneration.
  • Supports modern organisational designs and structures.
  • Facilitates fair and accurate market comparisons.
  • Employment costs are known upfront allowing for more accurate budgeting.
  • Supports performance related remuneration.
  • Positions the University to attract and retain high quality staff.

5.1.1 Total Remuneration Package (TRP) Approach

All staff on Peromnes levels 4-1 and all new appointees shall be placed on total remuneration packages during 2009. The balance of staff, excluding the Executive, Deans and Deputy Deans who are already on total remuneration packages, shall be placed on total remuneration packages on a phased basis over three years from the effective date of this policy.  For the purposes of this Policy, all allowances, awards, adjustments and gratuities shall be calculated and expressed as a percentage of the total remuneration package, once all staff are on this system of remuneration. In the interim, whilst the TRP approach is being implemented, to ensure equitable treatment of staff, all allowances or gratuities shall continue to be calculated on fund/basic remuneration or total remuneration package less compulsory contributions/benefits.  Staff members shall be permitted to revise their total remuneration package once every year in terms of guidelines approved by the Remuneration Committee.

5.1.2 Basic Remuneration plus Add-on Benefit Approach

All existing permanent staff of the University as at 1 January 2009, except as provided above, shall continue to be remunerated on an ‘basic remuneration plus add-on benefit’ basis in the short-term. However all staff shall be migrated to the Total Remuneration Package approach on a phased basis, as determined by the

Remuneration Committee.

5.2 JOB EVALUATION

In order to establish the relative worth of each position and ensure equity in remuneration, a job evaluation system shall be implemented and consistently applied across all jobs.  The University shall use the Peromnes© evaluation system for support staff.  Academic staff shall be remunerated based on their academic level.  All support staff posts shall be assessed every five years or sooner if the job

content has changed significantly. Posts will only be re-evaluated where necessary.

5.3 REMUNERATION RANGES

5.3.1 Market Positioning

Skills are a limited resource in a finite labour market and thus the University must make remuneration decisions in the context of the market from which it draws its skills. It is therefore imperative to know and understand both the current market practices and the future trends.  The University shall select a credible market survey to which the majority of higher education institutions subscribe, that measures both the higher education sector and the general market.

5.3.1.1 Academic Staff

For academic staff the benchmark shall be the National Tertiary Education Market.

5.3.1.2 Support Staff

For support staff the benchmark shall be the National All Industries Market.

5.3.2 Determination and Review of Remuneration Ranges

The current notching practice shall be replaced by remuneration scales that are affordable but flexible and aligned to the relevant market.  The remuneration ranges are to be revised at minimum once every three years or more frequently as determined by the Remuneration Committee of Council in order to ensure that the remuneration objectives are being achieved. During this review recommendations shall be made for the positioning of the scales relative to the market.  All remuneration adjustments to align existing salaries with chosen benchmarks shall be based on the performance of the affected individuals.

Academic Staff

The midpoint of the Academic remuneration range shall be equal to the 75th  percentile of the South African tertiary education market survey.  The University shall remunerate permanent academics, performing at or above the norm as assessed by the relevant line manager or through the performance management system, who have successfully completed their probation and have been employed for a continuous period of three years or more, at or above the median for the tertiary market.

Support Staff

The midpoint of the support sector remuneration range shall be equal to the median or 50th percentile of the South African National All Industries Market survey.

5.4 REMUNERATION DIFFERENTIALS

To ensure that there is equitable remuneration for equivalent work, the differential between the midpoint of each grade and the top and bottom of the grade scale shall not be in excess of 20 % on either side of the midpoint.

5.5 GUARANTEED REMUNERATION

 5.5.1 Service Bonus

A service bonus shall be paid annually in the staff member’s birthday month, based on the staff member’s basic remuneration or total remuneration package less compulsory benefits/contributions. The service bonus shall be pro-rated in the first year of service.

5.6 VARIABLE REMUNERATION

5.6.1 Non-Pensionable Market Allowances

Market allowances provide the University with a mechanism to remunerate staff above the prescribed level in certain circumstances. This enables the University to respond to and compete with the market for key staff.

5.6.1.1 Scarcity Allowances

Every three years the Division of Human Resources and Equity shall recommend to the Remuneration Committee a closed list of recognised scarce skill disciplines based on:

  • submissions from Deans and Divisional Heads;
  • data collected from external surveys including the Department of Labour scarce skill report;
  • record of recruitment and retention within the University in the particular discipline;
  • comparative rates of pay between the University and the relevant market.

Once approved by the Remuneration Committee and subject to budget funding being available, staff in recognised scarce skill disciplines shall receive a non-pensionable allowance calculated as follows:

  • Add-On Packages: up to 10% of basic remuneration
  • Total Remuneration Packages: up to 10% of total remuneration package less compulsory contributions/benefits.

Ongoing payment of Scarcity Allowances or the quantum thereof, once granted, is not guaranteed. Ongoing payment is also subject to the recipient maintaining an acceptable performance level as determined in the annual performance assessments by his/her line manager or in terms of the prevailing performance management system. If the performance rating of a recipient of a scarcity allowance drops below the rate for an employee who ‘meets expectations’ (See Performance Management Rating Scales) for any annual cycle, then the scarcity allowance shall be suspended for the next twelve month cycle or subsequent twelve month cycles until the performance rating is at the required level.  A scarcity allowance is not part of the individual’s guaranteed total remuneration package. There is therefore no expectation of continuity of a scarcity allowance and it may be withdrawn at any stage, if a discipline no longer qualifies as a scarce skill.

5.6.2 Performance Incentive Award Scheme

An incentive scheme shall be implemented that is linked directly to the University performance management system. The incentive award shall be paid annually based on the results of the performance review. The Performance Incentive award scheme shall be implemented during 2010 and shall replace all existing merit awards, performance notches and merit notches. The incentive value calculation shall be based on University performance i.e. meeting its overall targets in the form of achieving budget, as well as meeting such other targets as may be determined by Council. Once an incentive value has been calculated then it shall be applied to individual performance through progress in achieving the individual performance targets as set out in the performance management system and aligned to organisational key performance areas. Annual assessments of performance shall be based on the result of the preceding calendar year ending 31 December each year. To be eligible for an award an employee shall have successfully completed his or her probation and shall have completed twelve months of continuous service by 31 December of the year of assessment. All assessments for the period 1 January to 31 December are to be completed by 31 January of the following year. Payment of the performance award shall be not later than 31 March of that year. There shall be no pro rata awards for periods of service of less than twelve months as at 31 December of each successive year.

In the event of termination of service for whatever reason, taking effect before 31 December of any year, no performance award is payable and an employee shall not have any claim to a performance award or part thereof. An employee whose termination takes effect after 31 December and who is eligible for an award shall receive the award.

5.6.3 Travel Allowances

The University recognises that due to the widely dispersed geographical layout of its five campuses, staff may, from time to time, be required to use their private vehicles to travel between campuses and elsewhere on University business. The frequency and extent of travel varies considerably from employee to employee. For the majority of staff, travelling costs incurred on such travel can be recovered at the prevailing fixed rate per kilometre, through the University’s reimbursement travel expenses claims process. There are, however, certain members of staff whose official University travel is sufficiently high to justify an alternative arrangement and for whom a travel allowance may represent a more convenient and fairer mechanism of reimbursement.

A threshold shall be set for a minimum level of business travel (determined per annum or annualised, as appropriate, where less than one year) that warrants a travel allowance.  All recipients of a travel allowance shall be expected to maintain a travel logbook which may be required to be submitted to SARS or, on request, made available to the relevant line manager for the purpose of monitoring the extent of official University travel undertaken during any assessment period. A travel allowance, once granted, may be increased if the allowance recipient is able to demonstrate, and substantiate, that the extent of official University travel has, on a sustained basis, increased; the application for such increase shall be based on the evidence contained in the log book.  A travel allowance is not guaranteed for the duration of existence of any post. If the nature of a particular post changes, where there is a reduced expectation of travel, the travel allowance granted to the post incumbent may be suspended or varied, as appropriate, pending a further review to determine if the extent of actual travel is at the required threshold level. Any staff member whose travel allowance is suspended will, however, be eligible to claim for official University travel using the reimbursive claims process during the period of review.  All total remuneration packages shall be calculated taking into account the anticipated travel attached to the related posts. This shall be deemed to include remuneration for travel at the threshold. Any official travel in excess of this threshold may be claimed, subject to documentary proof thereof being provided by the claimant.  The value of the requisite travel allowance shall be determined and reviewed periodically by the Remuneration Committee.  All prevailing travel allowances as at the effective date shall be reviewed and may be withdrawn or amended as appropriate.

5.6.4 Acting Allowances

Situations that require appointing an individual in an acting capacity at a higher level represent an ideal opportunity to utilise employees from the designated employment equity groups, as well as other existing staff in positions of increased responsibilities for both evaluative and professional developmental purposes. An acting appointment is therefore seen as beneficial to the incumbent.  An acting allowances is payable when a staff member is required to undertake the full duties and responsibilities of a higher level post for a minimum of one month (twenty two working days) and a maximum of six months. A staff member may not be appointed in an acting capacity to a position which is higher than two levels above their substantive post level and should meet most, if not all, of the minimum requirements for the higher level post.  An acting allowance is calculated at 5% of basic remuneration or 5% of Total Remuneration Package less compulsory contributions/ benefits, of the staff member’s ordinary remuneration, whichever is applicable. Acting allowances are not payable to Executive members.

5.6.5. Attraction and Retention of Exceptional Staff

In exceptional cases a sub-committee of the Remuneration Committee comprising the Chair, Vice-Chancellor and Executive Director of Human Resources and Equity may consider requests to make remuneration adjustments or increased offers of employment to:

5.6.5.1 Retain key employees where the loss of these employees would impact negatively on the achievements of a particular operational unit and the University’s strategic aims or objectives and where uncompetitive remuneration is the primary motivation for leaving. These requests are considered exceptionally on receipt of a signed letter of resignation, after assessing viability of retention, the employee’s past performance and other options for retention. The Division of Human Resources and Equity shall conduct an investigation to establish the veracity of the alternative remuneration offer made to the employee.

5.6.5.2 Attract exceptional candidates to the University where uncompetitive remuneration is the primary factor influencing the decision not to accept an offer of employment.  The Executive member with portfolio responsibility for the operational unit shall be invited to be part of the sub-committee.

5.6.6. Other Variable Remuneration

In addition to the above forms of variable remuneration, shift allowances, standby allowances or call out allowances and any other non- recurring payments are deemed to be variable remuneration.

5.7 REMUNERATION ADJUSTMENTS AND REVIEWS

5.7.1 Annual Cost of Living Remuneration Adjustments

All annual remuneration increases shall be subject to negotiation in the Joint Bargaining Forum. These increases shall be awarded based on prevailing rates of inflation at the commencement of negotiation, market movements and affordability considerations. All increases shall be to basic remuneration or to the total remuneration package as applicable.

5.7.2 Post Re-grading

Where a support sector post has been re-graded to a higher level, the current incumbent’s remuneration must be matched to the mean/average remuneration for the new grade in the particular Faculty or Division. If the current remuneration equals or exceeds the average of the higher level, no further adjustments shall be made.

5.7.3 Academic Promotion

Academics who are promoted must first be matched to the average remuneration of staff at the higher level in the relevant faculty. If promotion recipient’s current remuneration is lower than the average rate of remuneration at the higher level, s/he shall receive an increase up to the average rate or 5% in basic remuneration (or 5% of Total Remuneration package less compulsory contributions/benefits if applicable), whichever is the greater. If the recipient is earning above the average remuneration for the higher level, s/he shall be granted a 5% increase in basic remuneration or 5% increase in Total Remuneration Package less compulsory contributions as applicable.

5.8 DETERMINATION OF OFFERS OF EMPLOYMENT

In determining the offers of employment due consideration shall be given to the appointees current earnings and expected earnings whilst striving to ensure parity in remuneration with existing staff at the same grade or level. Accordingly the calculation of the basic remuneration for new appointees shall be determined taking into account the average basic remuneration of other staff at the same level in the Faculty/Division. A similar principle applies to Total Remuneration Packages.

The Executive Director Human Resources and Equity and the relevant Executive member with portfolio responsibility for the particular operational unit, in question, must approve any remuneration offers outside of these parameters.  An applicant for a post at the University may not be offered a total remuneration

package or fund salary, as applicable, at a level that is higher than the maximum total remuneration package or fund salary, as applicable, for the advertised grade or level without the prior approval of the Remuneration Committee in terms of 5.6.5.

5.9 CALCULATION OF LEAVE GRATUITIES

Leave gratuities shall be calculated in a manner as determined by the Remuneration Committee in accordance with prevailing legislation.

5.10 DISCLOSURE OF REMUNERATION INFORMATION

The Remuneration Committee shall develop and recommend to Council appropriate rules on the disclosure of remuneration levels to the Council, staff and general public inclusive of any statutory requirement for the reporting of remuneration levels and or categories.  The Private Remuneration Work policy shall determine the disclosure of private earnings by staff members to the relevant structures within the University.

 

5.11 SCOPE

This policy applies to all permanent academic and support staff.

 

5.12 EXCEPTIONS

Unless expressly provided in this policy, all exceptions to this policy must be approved by the Chair of the Remuneration Committee.

5.12 POLICY REVIEW

This policy shall be reviewed at intervals to be determined by the Remuneration Committee. The policy shall at minimum be reviewed every three years from the effective date.

1    Higher Education South Africa, Guidelines for the governance, management and disclosure of institutional remuneration in the higher education sector South Africa, 2008

2  University of KwaZulu-Natal Strategic Plan 2000-2017

3  “Prudent Macro Budget Structure Guidelines for Technikons and Universities” Ministry of Education Guidelines for Mergers and Incorporations, Chapter 13, Appendix 3, Table 1

Annexure 1:

Remuneration Committee of Council Composition and Terms of Reference

In order to ensure good governance and oversight of the Remuneration policy a Remuneration Committee shall be established. This committee reports directly to Council.

Membership

Membership of this committee should consist of:

  • Up to five external members of Council nominated in the discretion of the Council, which shall include;

the Chairperson of the Finance Committee of Council

the Chair of the Staffing Committee.

  • the Vice- Chancellor
  • the Executive Director Human Resources and Equity
  • One representative of University permanent staff who is not a member of the University Executive

The Chief Finance Officer shall be in attendance at all meetings of the Remuneration Committee.

A chairperson shall be elected from the external membership. Remuneration experts may be invited to attend committee meetings from either external or internal resources.

 

Meetings

This committee should meet no less than twice per annum.

Decision Making

Only the non-executive members of Council shall have voting rights at this committee, although consensus is advocated.

Terms of Reference of the Remuneration Committee

  1. To develop and recommend to the Council an appropriate Remuneration Policy for the institution. This policy should contain all the elements required to empirically guide the work of the committee in terms of good remuneration governance and management and should serve to guide remuneration changes during the normal course of operations.
  2. To approve mandates for overall annual institutional remuneration increments in consultation with the Chairperson of the Finance Committee in accordance with institutional affordability, appropriate market comparisons, and the principles of remuneration differentials between and within grades.
  3. To make decisions on behalf of Council on all executive management remuneration levels, inclusive of the Vice-Chancellor’s remuneration package and annual reviews for incremental purposes.
  4. In this regard, a performance management system (including incentives) shall be implemented for all Executive members. The outcomes should be monitored by the Remuneration Committee who should make recommendations to Council for any changes to the current system or the actual remuneration packages of executives as a result of a performance evaluation.
  5. To annually review grading mechanisms and remuneration structures for the institution and make appropriate recommendations to Council.
  6. To actively promote the development and implementation of credible and appropriate Performance Management systems within the institution and to ensure that the principles of this system are applied throughout the institution and are within the context, meaning and intent of the University’s values, culture, vision and mission.
  7. To make any other recommendations to Council as and when required that have a bearing on remuneration matters for the institution.
Activity 1

Draw up a Human Resource policy for your company/venture.  Include the following aspects:

  • Skills development
  • Performance Evaluation
  • Remuneration
  • Recruitment and Selection
  • Employment Equity
  • Grievance procedure
  • Disciplinary procedure

 2. Be responsible for the drafting of job descriptions, recruitment, selection panels, and employment contracts.

      

Range: Terms and conditions of employment include starting date and probation period, duration of employment, remuneration, notice period, leave (sick leave, family responsibility leave, maternity, annual/vacation), hours of work and overtime, other benefits and deductions

2.1 The ability to take responsibility to organize and participate in the recruitment process is demonstrated.

Recruitment involves all the activities carried out in searching for potential employees and suitable people to apply for available positions.  You first have to look at the job description and job specification of the post you

wish to fill.   Seeing that you will most likely appoint new people if not making use of family and friends, you will advertise.

Advertisements can be done by means of the following sources:

  • .   Training institutions such as schools and technical colleges
  • .   Recruitment agencies who will recruit on behalf of the business
  • .   Professional bodies such as the South African Institute of Financial  Bodies
  • .   Advertisements in newspapers, television and magazines
  • .   Applicants at recruitment agencies

When you compile and advertisement you make use of the following information:

  • .   Job title
  • .   Salary
  • .   Important features of the work
  • .   Requirements of candidate
  • .   Fringe benefits
  • .   Application procedures
  • .   Person in charge of applications
  • .   Brief description of the business

An example of a job advertisement in the newspaper:

 

 Activity 2

Draw up an advertisement for one of the positions that you wish to fill in your business

2.2  The ability to take responsibility to organise and participate in selection panels is demonstrated.

All the applicants are screened and those who obviously do not qualify are eliminated.  These candidates must be informed immediately that they have not been successful.

After the initial screening, a group of candidates remain who appear to be suitable for the vacancy or vacancies and who are interested in being employed.  This completes the recruitment process and the selection process should begin as soon as possible.

Selection

Definition:  Selection may be described as the process in which the most suitable individual out of a group of applicants is selected for a specific position.  It is the selection of the individual who satisfies the selection criteria best.

The purpose of selection is to appoint the right person to a position – someone who will be best able to meet the desired standards of performance.  Affirmative action and equal opportunities should also be kept in mind.  It should be mentioned that the Labour Relations Act 66 of 1995 considers the applicant for employment as an employee and he or she will receive protection from unfair labour practices.

The steps in the selection process are illustrated in the figure below.  In practise enterprises may not necessarily follow all the selection steps and these may not occur in the sequence illustrated.

 

After you have sourced the correct people, you will interview the possible candidates and then select the most appropriate person for the position.

When interviewing a person, there are some critical questions to ask:

  • .   Why are you applying for the position?
  • .   How do you view your role in the business?
  • .   How can you see yourself contributing towards making the business more productive?

When you are deciding who to appoint you must be objective and unbiased. You want someone who will do the word and do it properly.

As soon as you decided to employ the person you should inform the person of the starting date, salary, working hours, benefits etc, by means of an appointment letter.

You should open a personnel file for each of your employees.  All documentation, personal information and correspondence should be kept in the file. This will be used at a later stage for matters such as promotion, dismissal and merit information and correspondence should be kept in the file. This will be used at a later stage for matters such as promotion, dismissal and merit.

Activity 3

Write down 5 critical questions you will ask at an applicant at an interview

 2.3 The ability to participate in salary negotiations is demonstrated.

 Compensation of personnel

Compensation is that which employees receive in return for their services.  It determines their willingness to stay on with the enterprise to a large extent.  Loyalty to the enterprise is also based partly on the compensation received.

A distinction is made between a wage and a salary.  The employee who is remunerated monthly usually receives a salary, whereas a worker who is paid per week, per day, per hour or per piece receives a wage.  Compensation packages are one of the aspects that can give rise to the most dissatisfaction among employees.  They have an influence on the employee as well as the enterprise.

Composition of a compensation package

The compensation package consists of financial (or extrinsic) and non-financial (or intrinsic) part.  The needier the employee, the more important the financial part in enabling him to satisfy basic needs.  But the more prosperous the employee, the more important the non-financial aspects such as more leisure time and a pleasant work environment is.

The composition of a compensation package is illustrated in the figure below.  A compensation package should be compiled in such a way that the employee is able to maintain a “realistic” standard of living and can make sufficient provision for the future.

Composition of employee’s remuneration package

Requirements of a remuneration system

In exchange for remuneration the enterprise expects certain behaviour from the employee.  Given this, the compensation system should meet the following requirements:

  • The employee should be aware of the compensation and it must be worthwhile to him.
  • The employee must know exactly what is required of him to receive compensation.
  • The employee must know that he is capable of performing as required for the compensation.
  • There musty be a direct relation between the compensation and the required behaviour.
  • The employee must be assured that he will be evaluated correctly and fairly by third parties.
  • It must be possible to adjust the compensation upwardly to make provision for increases in the cost of living.
  • The employee must understand how his compensation is determined, for instance a certain amount per month or a percentage of the sales made by the employee as commission.  Complicated and incomprehensible calculations tend to make the employee suspicious and he may believe that he is being cheated.

Methods of compensation

Compensation may be linked with a position or the employee’s productivity or a combination of the two.  If compensation is linked with the position, there is no direct connection between the work done and the compensation received.  In such a case the employee receives a fixed wage.  Another method of compensation is the incentive system.   Here the employee is compensated for a fixed task, no matter how long he works on it.  The faster he works ( without compromising standards), the more quickly he completes the job and the sooner he can begin with a new piece of work for which he will be compensated.  The bricklayer who is compensated for each brick he lays and the salesman who receives commission for each product he sells are examples of workers compensated under the incentive system.  The third method of compensation is a combination of a fixed and incentive scheme.  In this instance a salesman receives a basic salary regardless of how many products he sells and a commission for each item he sells.  His basic salary remains the same but the more items he sells, the larger his total compensation because his commission increases accordingly.

Benefits

Benefits are the compensation which an enterprise pays to employees over and above their salaries because they work for the enterprise.  This type of compensation is also known as indirect compensation.  Unlike salaries and wages, benefits are not necessarily linked with performance and are frequently accepted as part of the conditions of service.  The size of the benefits is usually related to status levels.  The managing director of an enterprise will, for example, be entitled to a mre expensive motor car than a departmental head.

The enterprise is obliged by law to provide certain benefits.  Unemployment insurance and workmen’s compensation fall into this category.  In the case of these benefits the employer is obliged to make contributions for certain employees for set benefits.  Then there may also be a group of benefits introduced after negotiations between management and the employees or their representatives.  If negotiations are successful, the benefits are included in labour agreements, wage agreements and employment contract.  Leave and pension benefits are a case in point.

The enterprise may voluntarily grant other benefits to employees simply to make it a pleasant place to work.  In such cases the enterprise has no legal obligations. It uses benefits such as employer’s contributions to group insurance and motor car benefits to attract suitable personnel.  The payment of benefits often constitutes a significant portion of the employee compensation package.

Despite tax on indirect compensation in South Africa, benefits remain an important recruitment tool, especially in the compensation packages of top and middle management.  High personal taxes have led enterprises to develop various means of indirect compensation to retain key employees without directly compensating them for their services

Negotiation

Negotiation plays a vital role in labour relations.

Definition:

Negotiation can be defined as a process of interaction between individuals or groups that is directed at reaching some form of agreement that will hold and is based on common interests, with the purpose of preventing or resolving conflict and to satisfy the needs of the parties, despite wide differences.

Example

Compare the constitutional negotiations of all the political parties at the World Trade Centre at Kempton Park during the Conference for a democratic South Africa (CODESA I and II) in 1993.

The purpose of negotiation is to:

  • Exchange and forward information by means of communication so that the parties can reach consensus.  Example:  The labour unions puts salary increase claims on the table while representatives of top management put forward what top management is willing to pay.
  • Resolve conflict, for example, compromises from both labour union and representatives of top management to bridge the gap between what is claimed and what top management is willing o pay.
  • Secure and improve interest through bargaining.  During bargaining process the labour union will do everything possible to get the best salary increase for its members, while representatives of management will try to keep the costs for the enterprise at a minimum

Example

Compare the annual negotiations on salaries and benefits between trade unions and management and hostage negotiations when a plane is hijacked.

The approach to negotiation will be determined by factors such as:

  • The seriousness of the conflict.  The negotiations for a longer lunch break wil differ from negotiating with somebody in a hostage drama.
  • The objectives and timing of the negotiation.  Negotiations will deviate from the normal when supplier’s labour union threatens to strike at a time when purchasing for Christmas takes place.
  • The relationship between the arties concerned.  If the concerned parties treated each other fairly, sincerely and honestly in the past, the approach to negotiations will differ from when the parties had hidden agendas, were unethical and dishonest to each other in the past.
  • The negotiation style that will be followed.  Negotiations can be direct, in other words, face to face, or indirect, by means of representatives or in the media. The latter is typical of espionage.
  • The extent to which future relationships will be continued.  If the concerned parties would like to build long-term relationships, both parties would be more prepared to agree to compromises.  In contrast, both parties will try to gain the maximum from single negotiation even if it is at the cost of the other party.

The key to the success of negotiation lies in thorough preparation.  This includes the compilation of the negotiation team, which must not be too cumbersome and where every team member’s specialised knowledge will be utilised to the maximum.

There are different approaches to negotiation.  The most acceptable approach is the integrative approach or the so-called win-win approach.  In this approach the objective is that both parties must be winners.  Both parties, however, must be prepared to compromise.

Example

An example of his approach is the negotiation between the rectorate of a university and the student council or between top management of an enterprise and the labour union that negotiate about a disciplinary procedure.

The second approach is the distributive or win-lose approach.  In this approach there is always a winner and a loser and therefore both parties try their utmost to win whatever happens to the other party.  This is a typical “take-it-or-leave-it” approach that is often found in salary negotiations and estate transactions.

The third approach is the destructive approach.  The one party will go out of its way to have the other party lose, not caring about the damage inflicted on itself – a typical lose-lose approach.

Example

An example is where students damage university property, to their own disadvantage, when their demands are not complied with or where striking employees damage the property of the enterprise.

Negotiation has developed to a fine art which demands thorough training.  It will therefore be wise to use experts in this field when it comes to complicated negotiations

2.4  the ability to establish employment conditions of a particular category of employment in accordance with relevant policy is demonstrated.

BASIC CONDITIONS OF EMPLOYMENT ACT, 1997

SUMMARY TO BE KEPT BY AN EMPLOYER IN TERMS OF SECTION 30

The following is a summary of the provisions of the most important sections of the Basic Conditions of Employment Act, 1997, as amended.

APPLICATION OF THE ACT:  SECTION 3

The Act applies to all employees and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for an organisation with a charitable purpose.

The basic conditions of employment contained in the Act form part of the contract of employment of employees covered by the Act.  Some, but not all, basic conditions of employment may be varied by individual or collective agreements in accordance with the provisions of the Act. (see paragraph 7 below).

REGULATION OF WORKING TIME:  CHAPTER TWO

2.1     Application

This chapter does not apply to senior managerial employees, employees engaged as sales staff who travel and employees who work less than 24 hours a month.

2.2     Ordinary hours of work:  Section 9

No employer shall require or permit an employee to work more than

(a)      45 hours in any week;

(b)     nine hours in any day if an employee works for five days or less in a week; or

(c)      eight hours in any day if an employee works on more than five days in a week.

2.3     Overtime:  Section 10

2.3.1   An employer may not require or permit an employee

(a)      to work overtime except by an agreement;

(b)     to work more than ten hours’ overtime a week.

2.3.2   An agreement may not require or permit an employee to work more than 12 hours on any day.

2.3.3   A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months.

2.3.4   Overtime must be paid at 1.5 times the employee’s normal wage or an employee may agree to receive paid time off.

2.4     Compressed working week:  Section 11

2.4.1   An employee may agree in writing to work up to 12 hours in a day without receiving overtime pay.

2.4.2   This agreement may not require or permit an employee to work

(a)      more than 45 ordinary hours in any week;

(b)     more than ten hours’ overtime in any week; or

(c)      more than five days in any week.

2.5     Averaging of hours of work:  Section 12

2.5.1   A collective agreement may permit the hours of work to be averaged over a period of up to four months.

2.5.2   An employee who is bound by such a collective agreement may not work more than

(a)      an average of 45 ordinary hours in a week over the agreed period;

(b)     an average of five hours’ overtime in a week over the agreed period.

2.6     Meal intervals:  Section 14

2.6.1   An employee must have a meal interval of 60 minutes after five hours work.

2.6.2   A written agreement may

(a)      reduce the meal interval to 30 minutes;

(b)     dispense with the meal interval for employees who work fewer than six hours on a day.

2.7     Daily and weekly rest period:  Section 15

An employee must have a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which, unless otherwise agreed, must include Sunday.

2.8     Pay for work on Sundays:  Section 16

2.8.1   An employee who occasionally works on a Sunday must receive double pay.

2.8.2   An employee who ordinarily works on a Sunday must be paid at 1.5 times the normal wage.

2.8.3   Paid time off in return for working on a Sunday may be agreed upon.

2.9     Night work:  Section 17

2.9.1   Employees who work at night between 18h00 and 06h00 must be compensated by payment of an allowance or by a reduction of working hours and transport must be available.

2.9.2   Employees who work regularly after 23:00 and before 06:00 the next day must be informed

(a)      of any health and safety hazards; and

(b)     the right to undergo a medical examination.

2.10    Public holidays:  Section 18

2.10.1 Employees must be paid their ordinary pay for any public holiday that falls on a working day.

2.10.2 Work on a public holiday is by agreement and paid at double the rate.

 

2.10.3 A public holiday may be exchanged with another day by agreement.

 

  1. LEAVE: CHAPTER THREE

3.1     Application

The chapter on leave does not apply to an employee who works less than 24 hours a month for an employer and to leave granted in excess of the leave entitlement under this chapter.

3.2     Annual leave:  Sections 20 & 21

3.2.1   Employees are entitled to 21 consecutive days’ annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.

3.2.2   Leave must be granted not later than six months after the end of the annual leave cycle.

3.2.3   An employer must not pay an employee instead of granting leave except on termination of employment.

3.3     Sick leave:  Sections 22 – 24

3.3.1   An employee is entitled to six weeks’ paid sick leave in a period of 36 months.

 

3.3.2   During the first six months an employee is entitled to one day’s paid sick leave for every 26 days worked.

 

3.3.3   An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.

3.4     Maternity leave:  Sections 25 & 26

3.4.1   A pregnant employee is entitled to four consecutive months’ maternity leave.

3.4.2   A pregnant employee or employee nursing her child is not allowed to perform work that is hazardous to her or her child.

3.5     Family responsibility leave:  Section 27

3.5.1   Full time employees are entitled to three days paid family responsibility leave per year, on request, when the employee’s child is born or sick, or in the event of the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

3.5.2   An employer may require reasonable proof.

  1. PARTICULARS OF EMPLOYMENT AND REMUNERATION: CHAPTER FOUR

4.1     Application

This chapter does not apply to an employee who works less than 24 hours a month for an employer.

4.2     Written particulars of employment:  Section 29

4.2.1   An employer must supply an employee when the employee commences employment, with the following particulars in writing:

(a)      full name and address of the employer;

(b)     name and occupation of the employee, or a brief description of the work ;

(c)      various places of work;

(d)      date of employment;

(e)      ordinary hours of work and days of work;

(f)      wage or the rate and method of calculating;

(g)      rate for overtime work;

(h)      any other cash payments;

(i)       any payment in kind and the value thereof;

(j)      frequency of remuneration;

(k)      Any deductions;

(l)       leave entitlement;

(m)     period of notice or period of contract;

(n)      description of any council or sectoral determination which covers the employer’s business;

(o)     period of employment with a previous employer that counts towards the period of employment;

(p)     list of any other documents that form part of the contract, indicating a place where a copy of each may be obtained.

4.2.2   Particulars must be revised if the terms of employment change.

4.3     Informing employees of their rights:  Section 30

A statement of employees’ rights must be displayed at the workplace in official languages used at the workplace.

4.4     Keeping of records:  Section 31

Every employer must keep a record containing the following information:

(a)      employee’s name and occupation;

(b)     time worked;

(c)      remuneration paid;

(d)      date of birth if under 18 years of age; and

(e)      any other prescribed information.

 

4.5     Information about remuneration:  Section 33

 

The following information must be given in writing when the employee is paid:

(a)      employer’s name and address;

(b)     employee’s name and occupation;

(c)      period of payment;

(d)      remuneration in money;

(e)      any deduction made from the remuneration;

(f)      the actual amount paid; and

(g)      if relevant to the calculation of that employee’s remuneration

(i)       employee’s rate of remuneration and overtime rate;

(ii)      number of ordinary and overtime hours worked during the period of payment;

(i)       number of hours worked on a Sunday or public holiday during that period; and

(ii)      if an agreement to average working time has been concluded, the total number of ordinary and overtime hours worked in the period of averaging.

4.6     Deductions and other acts concerning remuneration:  Sections 34 and 34A

4.6.1   An employer may not deduct money from an employee’s remuneration unless –

(a)      The employee agrees in writing to the deduction of a specific debt;

(b)     The deduction is made in terms of a collective agreement, law, court order or arbitration award

4.6.2   A deduction in respect of damage or loss caused by the employee may only be made with agreement and after the employer has followed a fair procedure

4.6.3   Employers must pay deductions and employer contributions to benefit funds to the fund within seven days.

4.7     Calculation of remuneration and wages:  Section 35

4.7.1   Wages are calculated by the number of hours ordinarily worked.

4.7.2   Monthly remuneration or wage is four and one-third times the weekly wage.

4.7.3   If calculated on a basis other than time, or if the employee’s remuneration or wage fluctuates significantly from period to period, any payment must be calculated by reference to remuneration or wage during

(a)      the preceding 13 weeks; or

(c)      if employed for a shorter period, that period.

4.7.4   Employers and employees should consult a schedule published in the Government Gazette to determine whether a particular category of payment forms part of an employee’s remuneration for the purpose of calculations made in terms of this Act.

  1. TERMINATION OF EMPLOYMENT: CHAPTER FIVE

5.1     Application

This chapter does not apply to an employee who works less than 24 hours in a month for an employer.

5.2     Notice of termination of employment:  Section 37

5.2.1   A contract of employment may be terminated on notice of not less than

(a)      one week, if the employee has been employed for six months  or less;

(b)     two weeks, if the employee has been employed for more than six months but not more than one year;

(c)      four weeks, if the employee has been employed for one year or more, or if a farm worker or domestic worker has been employed for more than six months.

5.2.2   A collective agreement may shorten the four weeks notice period to not less than two weeks.

5.2.3   Notice must be given in writing except when it is given by an illiterate employee.

5.2.4   The notice on termination of employment by an employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal in terms of the Labour Relations Act, 1995 or any other law.

5.3     Severance pay:  Section 41

An employee dismissed for operational requirements or whose contract of employment is terminated in terms of section 38 of the Insolvency Act, 1936 is entitled to one week’s severance pay for every year of service.

5.4     Certificate of Service:  Section 42

On termination of employment an employee is entitled to a certificate of service.

  1. PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR: SECTIONS 43 – 48

6.1     It is a criminal offence to employ a child under 15 years of age.

6.2     Children under 18 may not be employed to do work inappropriate for their age or that places them at risk.

6.3     Causing, demanding or requiring forced labour is a criminal offence.

  1. VARIATION OF BASIC CONDITIONS OF EMPLOYMENT: SECTIONS 49 – 50

7.1     A collective agreement concluded by a bargaining council may replace or exclude any basic condition of employment except the following:

(a)      the duty to arrange working time with regard to the health and safety and family responsibility of employees (S.7,9 and 13);

(b)     reduce the protection afforded to employees who perform night work(S. 17(3) and (4));

(c)      reduce annual leave to less than two weeks (S. 20);

(d)      reduce entitlement to maternity leave (S 25);

(e)      reduce entitlement to sick leave to the extent permitted (S. 22-24); and

(f)      prohibition of child and forced labour (S.48).

7.2     Collective agreements and individual agreements may only replace or exclude basic conditions of employment to the extent permitted by the Act or a sectoral determination (S.49).

7.3     The Minister of Labour may make a determination to vary or exclude a basic condition of employment. This can also be done on application by an employer or employer organisation (S. 50).

7.4     A determination may not be granted unless a trade union representing the employees has consented to the variation or has had the opportunity to make representations to the Minister.  A copy of any determination must be displayed by the employer at the work place and must be made available to employee’s (S.50).

  1. SECTORAL DETERMINATIONS: SECTION 51

Sectoral determinations may be made to establish basic conditions for employees in a sector and area.

  1. MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS : SECTIONS 63 – 81

9.1     Labour inspectors must advise employees and employers on their rights and obligations in terms of employment laws.  They conduct inspections, investigate complaints and may question persons and inspect, copy and remove records and other relevant documents (S. 64 – 66).

9.2     An inspector may serve a compliance order on an employer who is not complying with a provision of the Act.  The employer may object against the order to the Director-General: Labour, who after receiving representations, may confirm, modify or set aside an order.  This decision is subject to appeal to the Labour Court (S. 68 – 73).

9.3     Employees may not be discriminated against for exercising their rights in terms of the Act  (S. 78 – 81).

  1. PRESUMPTION AS TO WHO IS AN EMPLOYEE: SECTION 83A

10.1    A person who works for, or provides services to, another person is presumed to be an employee if –

(a)      his or her manner or hours of work are subject to control or direction;

(b)     he or she forms part of the employer’s organisation;

(c)      he or she has worked for the other person for at least 40 hours per month over the previous three months;

(d)      he or she is economically dependant on the other person;

(e)      he or she is provided with his or her tools or work equipment; or

(f)      he or she only works for, or renders service to, one person.

10.2    If one of these factors is present, the person is presumed to be an employee until the employer proves that he or she is not.

 

  1. GENERAL

 

It is an offence to

(a)      obstruct or attempt to influence improperly a person who is performing a function in terms of the Act;

(b)     obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document;

(c)      pretend to be a labour inspector or any other person performing a function in terms of the Act;

(d)      refuse or fail to answer fully any lawful question put by a labour inspector or any other person performing a function in terms of the Act;

(e)      refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of the Act;

(f)      hinder or obstruct a labour inspector or any other person performing a function in terms of the Act.  (S. 92)

Employment conditions are compiled and interpreted for the venture

What employers must do

If the owner of the business pays someone to work for the business, then the owner becomes an employer, or boss, and the person working for him or her is an employee, or worker.

The employer and the employee will agree about what the employee must do, how many hours the employee must work, how much the employee will be paid, and so on. These are called the conditions of employment.

Conditions of employment

Because there are many people looking for jobs and too few jobs, employers are more powerful than employees – they can pay little and make employees agree to work long hours. The law tries to make the agreement fairer, by saying that there are some things the employer must do and some things she or he is not allowed to do. The most important aspects this section will look at are:

Sectoral determinations

Basic Conditions of Employment Act

Labour Relations Act

Sectoral determinations

The Wage Act says the Minister of Labour can appoint a Wage Board. The Basic Conditions of Employment Act says the Minister can appoint an Employment Conditions Commission. The role of the Wage Board and Employment Conditions Commission is the same: to investigate the wages and conditions of employment in a particular industry or sector.

The government wants to encourage businesses to grow and does not want to cripple a business because it has to pay very high wages. When the Board or Commission does its investigations, it looks at things like:

Whether employers will be able to run a successful business if they have to pay a certain wage to their employees.

The cost of living in the area where the businesses are run.

How much it costs employers to feed or give the employee a place to stay.

The Wage Board or Employment Conditions Commission then recommends a minimum wage and conditions of work (such as maximum number of hours) to the Minister of Labour. If the Minister approves it, it is published in the government gazette as a wage determination or sectoral determination. All employers in that industry or sector have to obey it.

An employer will have to pay a fine to the Department of Labour if he or she does not do what the sectoral determination says employers must do.

If an employer feels that the business will be crippled if it pays the minimum wages or obeys the other conditions of employment published in the government gazette, the employer can apply to the Department of Labour to be exempt from (not have to obey) the wage or sectoral determination. A group of employers who work in the same type of business in the same area can apply together.

If there is no wage determination or sectoral determination, then the Basic Conditions of Employment Act applies.

Registers

The Wage Act also says the employers must keep the following two registers:

Daily attendance register, where the employer must mark whether the employees have come to work or not.

Wage register, where the employer must write down when wages are paid to each employee and how much was paid.

The Basic Conditions of Employment Act

An employer will have to pay a fine to the Department of Labour if she or he does not do what the Basic Conditions of Employment Act says employers must do. The employer will first be sent a Compliance Order which is an instruction telling the employer to comply with the terms and conditions in the BCEA. If the employer defies the Compliance Order after it has been reviewed by the Director-General of the Department of Labour, he/she could be sent to prison for contempt of court.

The Labour Relations Act

When the owner of the business has employed someone to work for the business, she or he cannot dismiss the employee just because the owner does not want the employee to work for her or him anymore.

If an employer wants to dismiss an employee, it must be fair. Fairness is decided in two ways:

Substantive fairness

The employer must have a proper and fair reason to dismiss the employee. The Labour Relations Act says that an employer is allowed to dismiss an employee for 4 reasons:

Misconduct (the employee has done something seriously wrong)

Unacceptable performance (the employee does not do the job properly)

Incapacity (the employee cannot do the job properly due to illness or disability)

Retrenchment (the employer is cutting down on staff)

‘Substantive fairness’ weighs up whether the punishment fits the crime. Specific focus is on whether the rule that was broken was valid and necessary, whether the employee knew the rule, whether the employer has been consistent in applying the rule and finally what mitigating factors apply.

Procedural fairness

This can mean that:

The employer must warn the employee that his or her work is bad or behaviour is not good, and that next time he or she will be fired.

The employee must understand the charges against him/her and be given enough time to prepare a defence against the charges.

The employer must give the employee a chance to give his or her side of the story before deciding to dismiss him or her.

The employee must be given a chance to be represented by a fellow-employee and given an opportunity to cross-examine evidence presented against him/her.

Misconduct

If the employee has done something wrong that is bad for the business, like speaking badly to customers, or that is unacceptable conduct in the workplace, the employer must:

Give the employee informal advice if it is a small mistake.

Try to help the employee correct and solve the problem. (corrective discipline)

Take formal disciplinary action, that can get harsher as the employee repeats the misconduct. (progressive discipline)

Give the employee warnings.

The final warning should be in writing. (you can go straight to a final warning if it is very serious misconduct, like assault or theft).

Keep a record of all disciplinary action taken.

Hold a formal investigation, where the employee must get a chance to respond to the charges and can be represented by a co-worker or shop steward.

Give the employee notice or notice pay unless the misconduct is a serious breach of contract, like theft, assault and so on.

Where normal termination of employment takes place i.e. if an employee is paid at the end of every week, then the employer must give:

For the first six months of employment, one week’s notice

OR

pay for one week if the employer wants the employee to stop working immediately.

After six months of service, and up to one year, the employer must give the employee two weeks notice. Once the employee has worked for more than one year, the employer must give him or her 4 weeks notice.

Incapacity (unacceptable performance)

Where the employee is unable to meet the performance standards due to no fault on his or her part.

If the employer feels that the employee is not doing his or her job properly, before the employer is allowed to dismiss the employee, the employer must be sure that:

The employee was told what was expected from him or her in the work, and was given proper training and guidance.

The employee’s work was properly evaluated against a fair standard known to him or her.

The employee was given a fair chance to improve and was evaluated over a reasonable time.

The employee is so bad at the job, that it is very bad for the business and so it would be fair to dismiss him or her

The employee could not be transferred to an alternative position, even if it is a demotion.

The employer must:

Hear the employee’s side of the story and consider alternative positions.

Consider accommodating the employee in an alternative position if this is practical.

Give the employee notice or notice pay.

Incapacity (disability or ill health)

If the employee is off sick for a long time and the employer cannot manage without someone doing that job, then the employer can dismiss the employee and hire a new person. If an employee gets permanently sick or disabled, then the employer can dismiss the person if they cannot do their job any more, the job cannot be changed so that they can do it, and there is not another job for him or her.

The employer must:

Hear the employee’s side of the story.

Give the employee notice or notice pay.

Remember that the employee can claim UIF for 8 months.

Probation

It is a good idea for an employer to try out new employees before giving them the job. This is called probation. When the employer and employee agree on the conditions of employment, the employer must tell the employee that they will first try out the relationship for 1, 2 or 3 months. The Labour Relations Act says the probation period must be reasonable for the kind of job the worker will do.

It is important to write a letter to the employee saying:

How long the employee will be on probation for.

What the notice period will be while on probation.

During the first six months it must be at least 1 week.

How much the employer will pay every week or month.

Exactly what the employee’s job is.

The name, address, telephone number of the company and all details of the job.

The employer and the employee must each have a copy. The employer and the employee must both sign the letter.

Retrenchment

The law says that it is fair for an employer to dismiss (retrench) an employee if the employer:

Needs to cut down on staff for economic reasons.

Example: Zoliswa makes clothes and employs 3 seamstresses. A PEP store opens down the road and many of Zoliswa’s customers now buy their clothes at PEP stores. If Zoliswa carries on with 3 seamstresses, her business will lose too much money. So she decides to dismiss one of the seamstresses. The law says that she should dismiss the employee who was employed last (the last in first out rule), unless specific ‘skills’ are necessary for the job.

Is changing the way the business operates, and the employee does not have the right skills.

Example: Zoliswa decides to change her business. Instead of sewing clothes, the business will cut out patterns for a bigger business. None of the employees know how to cut patterns and it will take too long to teach them. Zoliswa is allowed to retrench the employees and employ people who know how to cut out patterns.

Upgrades technology.

Example: Zoliswa buys 2 electric machines. Now 2 people can do the work of 3. She is allowed to dismiss the employee who she employed last.

The employer must follow certain steps before retrenching employees.

If the employer retrenches an employee, the employer must pay the employee at least one week’s wages for every year the employee has worked for the business. This is called severance pay.

The employer does not have to pay severance pay, if the employer offers the employee another job that is nearly the same and the employee refuses to take it. If the employee has a good reason for not taking the new job, the employer must pay the severance pay.

There are special circumstances when an employer can apply to the Department of Labour not to pay retrenchment money to employees.

If the employer sells the business as a going concern, the new owner must employ the old owner’s employees and their service must come across to the new owner.

Activity 3

Study the employment conditions discussed and compile a document for your venture.

 2.5 The ability to reflect applicable terms and conditions of employment for the relevant category of employment in the employment contract is demonstrated.

 The contract of employment

A contract of employment must comply with terms and conditions of employment in the Basic Conditions of Employment Act (BCEA) or collective agreement or sectoral determination (depending on which the worker is covered by), and any other laws which protect workers such as the Labour Relations Act and the Occupational Health and Safety Act. If a contract breaks any of these protective laws, it is not enforceable.

If a worker is covered by the BCEA, terms and conditions of employment in the BCEA override those in any contract of employment which are less favourable to the worker than those in the BCEA.

The contract between worker and employer

If you say you will do something for another person, and in return that person agrees to pay you something, then you and that person have made a contract.

If you agree to work for someone, and that person agrees to pay you for this work, then you and the employer have a contract of employment.

If you work for another person you are called the employee or worker. The person who gives you the work, and pays you for the work, is called the employer or boss.

The type of work that you must do, hours of work, wages, a place to live, and so on can all be part of your agreement with your employer. These are called conditions of employment. They are express terms of the contract.

Even if you and the employer did not talk about some conditions of employment, for example, taking annual leave, and it is the custom that all workers take annual leave, then you can also take annual leave. This is part of your contract, even if you did not talk about it. These are implied terms of the contract.

The law says that a contract does not have to be in writing. If two people speak and they agree about the contract, then this contract is called a verbal contract. A verbal contract is also legal.

A written contract is better. If all the conditions of the contract are written on a piece of paper, and the employer signs the paper, then you have proof of what was agreed.

Section 29 of the Basic Conditions of Employment Act says that except for employees working less than 24 hours per month, domestic workers and employers who employ less than 5 people, before the job starts the employer must give the worker written particulars about the job, including:

a description of the job

the hours that the worker will be expected to work

ordinary and overtime rates of payment, including payment in kind and its value

any deductions to be made

how much leave the worker will get

the notice period

This document is like a contract of employment, but the worker doesn’t have to sign it. If a worker can’t read, the particulars must be explained in a language the worker understands.

If you have a contract, but you do not do the thing that was agreed, then you break the contract. The law says that if one person breaks a contract, then the other person can use the law to force that person to do what was agreed. Breaking a contract is also called a breach of contract.

How can a contract of employment be used?

The worker is always entitled to at least the terms and conditions in the Basic Conditions of Employment Act (BCEA). If the breach of contract goes against a term or condition in the BCEA then a worker can go to the Department of Labour and lay a complaint. The Department will issue a Compliance Order which tells the employer to comply with the BCEA. This is a much easier and cheaper way to deal with problems that fall under the BCEA.

Changing the contract

An employer can change the contract even if the worker does not agree to the changes. But a change in a contract is like a new contract. To change the contract, the employer must give notice of the change to the worker and must negotiate the new terms and conditions with the worker.

If the employer and worker/s cannot agree about the changes in the contract, then the employer may just implement the changes. If the worker then just accepts the new conditions and goes on working, then the new conditions become part of the contract. If the worker does not agree to the changes, then he or she can:

refuse to accept the changes. If the employer then dismisses the worker it is an automatically unfair dismissal.

he or she can choose to stop working for the employer. If the worker was forced to resign rather than be forced to accept the changes, it may be an automatically unfair dismissal.

Note: Where a registered trade union has signed a collective agreement with the employer and where the employer changes this agreement without the agreement of the union, the union and its members can go to the CCMA to claim that the employer has broken the collective agreement

Types of contracts

There are two types of contracts: indefinite and fixed-term contracts.

Indefinite contracts

Most employment contracts are indefinite contracts.

This means that when a worker starts working for the employer, no-one knows when the contract will end.

An indefinite contract can only be ended in the following ways:

by dismissal

by cancellation of the contract by the worker or the organisation.

Fixed-term contracts

If the worker and the employer both agree at the start of the contract when that contract is going to end, then it is a fixed-term contract.

Contract workers and seasonal workers are two kinds of workers with fixed-term contracts.

It often happens, particularly on the farms, that the employer goes to other areas to get people to work on the farm on a temporary basis. The workers then leave their homes and go to work on this farm. These workers may be referred to as contract workers.

Usually the farmer and these workers have a fixed term contract for a specified time. The contract is usually made before the worker gets to the farm. If a worker has a contract with the farmer, then the conditions of that contract are the conditions of employment.

Some farms have times when extra workers are needed. These times are called seasons. If a worker only works on the farm for a season, then he or she is called a seasonal worker. The seasonal worker knows when the contract starts and when the contract ends.

For both contract workers and seasonal workers, the employer must pay workers for the full contract time, even if there is no more work for the workers to do. If a worker’s contract is for one year, then the employer must pay the worker for the full year, unless the contract ends because of the worker’s fault. If the contract is for one season, then the employer must pay the worker for the whole season.

Differential wage

If the employer tells a worker to do someone else’s job in a higher category of pay than the worker’s own job, then the worker deserves to get the higher wage. (“Equal pay for work of equal value’). An employer can ask a worker to do work below his or her own pay category, but the worker should not get paid less than his or her own wage.

The BCEA doesn’t have a rule about differential wages. But if an employer refused to pay the higher wage, the worker could take a dispute about an unfair labour practice to the Commission for Conciliation, Mediation and Arbitration.

Bonus pay

‘Bonus pay’ means money paid to workers which is over and above their wages and overtime money. The law does not say that an employer must pay a bonus to workers. This is ‘extra’ money. It is usually paid out at the end of the year, for example, for good performance during the year, or for targets reached in production of goods.

Bonus pay must be paid in these cases:

if an employer gave a bonus to the workers at the end of every year in the past
The employer created an ‘expectation’ in the workers that they will get a bonus every year. And it has become the custom to get the bonus. The workers then have a right to demand the same bonus every year. If the employer suddenly decides not to give a bonus, the workers can claim the bonus as a common law right.

if it says in a contract of employment that the worker will get a bonus
Then the employer must pay the bonus as agreed (unless it depends on the worker doing something which the worker did not do). For example, if a contract of employment says that an employer must pay a 13th cheque to a worker then the employer must pay this.

Long Service Awards

The law does not say that employers must pay long service money to workers who worked for a long time for the same company. If the worker retires, it is up to the employer to decide whether to give any long service money to the worker.

Job References

A job reference letter is a letter from an old employer saying whether the employer thought the worker was a good worker or not. Often when a worker approaches a new employer for a job, the new employer will telephone the old employer for a job reference before employing the worker.

The Basic Conditions of Employment Act (BCEA) says workers are entitled to a written certificate of service when the worker stops working for that employer. The certificate of service sets out the full name of the employer and the worker, the job/s that the worker was doing, the date that the worker began working and the date that the worker ended work, and the wage at the time that the job ended, including payment in kind.

 2.6 The ability to suitably cover exceptional terms and conditions in the contract of employment if applicable is demonstrated.

Should one employ people on a permanent, temporary or contractual basis?

When one employs a person on a permanent basis, by law one should deduct Unemployment Insurance (UIF), pay as you earn (PAYE) and other mandatory deductions. Employees will also request a pension scheme and medical aid schemes. In small organizations, one is at less of an obligation to provide pension and medical aid schemes. Also, when employing a person on a permanent basis, one should pay them industry related salaries, which may be high salaries. As soon as a person needs to employ an individual with specialized skills such as bookkeeping skills, the salary will be higher than that of other employees. One should also take into account that when employing a person permanently there are a number of labour laws that need to be taken into account and money very often goes hand in hand with those labour laws.

Temporary employees who are obtained from personnel agencies sometimes cost less in the long run. The personnel agencies sometimes carry the costs such as UIF and PAYE and you pay the salaries and a commission to the agency.

When one employs contract workers, other sets of labour laws apply and the benefit of a contract worker is that one doesn’t have to carry the issues of leave, sick leave, medical aid and pension schemes. The contractors also agree on working hours and remuneration which you could either accept or decline

See Assessment Criteria 2.5 for more detail

Contracts of employment are submitted for approval to the authorised person(s).

 CONTRACT OF EMPLOYMENT: Example

Please note that it is not necessary to include the explanatory notes included in this sample. Employers are advised to delete these notes on their own discretion. If you experience any difficulty kindly contact us. This is a free service.

 Also refer to notes in the Basic Conditions of employment included in this manual)

 Strictly private and confidential 

Entered into between 

(Name of company)

_____________________________________________________

(Herein after also referred to as “the employer” or “the company”)

 and 

__________________________________

(ID ________________________)

(Herein after referred to as “the employee”)

Terms and conditions of employment

The terms and conditions set out herein will constitute the employee’s contract with the company with effect from __________________.  Where a basic condition of employment is not specifically mentioned, the relevant legislation will be applicable (eg. the Basic Conditions of Employment Act, Act 75 of 1997, the Labour Relations Act, Act 66 of 1995 amendments to legislation etc.).

Job description

JOB TITLE

__________________________.

 

DUTIES

The duties of this position are set out in the Duty Sheet annexed hereto as annex A. The Duty Sheet forms part of this contract.  Subsequent changes thereto may only be affected in consultation with the employee.

Although the employee has been employed in the position referred to in paragraph 2.1 and will therefore be responsible for the duties referred to in paragraph 2.2.1 supra, he/she may be required to perform other duties that may reasonably be expected of him /her within the company from time to time.

During the period of employment within the company the employee will report as per company name Organisation Chart and obey instructions given by him/her and any other person duly authorised (or delegated) by the company to do so.

Termination of employment

This contract of employment may be terminated only on notice of not less than-

one week, if the employee has been employed for six months or less;

two weeks, if the employee has been employed for more than six months but not more than one year;

four weeks, if the employee –

has been employed for one year or more; or

is a domestic worker who has been employed for more than six months

Probation

(Insert period if applicable)

Remuneration

The employee’s total monthly remuneration will be R______________, payable in arrears on the 3rd last working day of each month.  Should the regular payment date fall on a weekend or public holiday, the employer will pay the salary on the last working day before said day.

Remuneration will include the following:

Basic salary                R____________

Total                           R____________

The following will be deducted from the salary:

         PAYE

         UIF

Benefits

Annual Bonus at Company Discretion:  (See notes on 13 th cheques elsewhere in this manual)

Profit Sharing at Company Discretion: See notes on 13 th cheques elsewhere in this manual)

Annual salary negotiation

Remuneration will be revised on an annual basis.

Working hours

Normal working hours will be from _____(08:00)  to ________(16:30) from Mondays to Fridays.

The employer may not require or permit the employee to work more than forty-five (45) hours per week, calculated as follows:

Nine (9) hours on any day, if the employee works five (5) days or less a week; or

Eight (8) hours on any day if the employee works on more than five (5) days in a week; and

Lunch breaks are not included in this calculation.

Hours of work in terms of item 5.2 may be extended by up to fifteen (15) minutes a day, but may not exceed one (1) hour a week.  The reason for this provision is to allow the employee to finish the task at hand, especially when serving a client, at the end of a working day.

Meal intervals

The employee is entitled to a lunch break of 30 minutes.  Lunch breaks will be taken from 13:00 to 13:30 daily.

Overtime

Limit on overtime

The employee may be permitted or requested to work overtime from time to time when needed, provided that the daily overtime shall not exceed three (3) hours a day and a total of ten (10) hours a week.

Remuneration in respect of overtime

The employer shall calculate overtime remuneration at no less than 1.5 (one and one-half) the employee’s hourly wage for each hour of overtime worked; or

Pay the employee no less than the employee’s ordinary wage for each hour of overtime worked and grant the employee at least thirty (30) minutes time off with full pay for every hour of overtime worked; or

The remuneration method in 7.2.1 above will be the normal method of remuneration.  Should the employer need to use one of the other options due to circumstances, he/she will inform the employee accordingly, preferably in writing, before the commencement of overtime.

Work on Sundays and Public Holidays

Sundays

Work on Sundays will not be compulsory, but will be agreed on by the parties to the best interest of the company and the employee from time to time.

Public holidays

The employee will be entitled to the following official public holidays on full pay:

*New Year’s Day                     *Youth Day

*Human Rights Day                 *National Women’s day

*Good Friday                           *Heritage Day

*Family Day                            *Day of Reconciliation

*Freedom Day                         *Christmas Day

*Worker’s Day                         *Day of  Goodwill

Any other holiday declared by Government from time to time will also be granted with full pay.

Remuneration

If the employee does not work on a public holiday, he/she shall receive normal payment for that day.

If the parties agree that the employee should work on any of the above days, the employee shall be paid double the normal day’s wage for a full day or double the hourly wage for every hour worked.

The employer may also by agreement grant two (2) paid working days off in lieu of payment.

Annual leave

The employee is entitled to (15) fifteen working days leave per annum.

Leave will not be granted concurrently with any other period of sick leave granted.

Leave will normally not be granted within the notice period regarding termination of service.

Leave may not be accumulated for more than eighteen (18) months, except where explicit written consent is obtained, detailing the amount of leave which may be accumulated.  Motivated written application must be made to obtain such consent.

Leave accumulated in terms of special permission referred to above will not be paid out at termination of service.  Leave may thus not be accumulated for purposes of inflating a severance package.

Leave must be applied for in writing in the form and manner prescribed by the company from time to time, and may only be taken after approval by the company or its delegated authority.

 

Sick leave

During every sick leave cycle (12 months) the employee will be entitled to an amount of sick leave equal to the number of days the employee would normally work during a period of four (4) weeks.  The employee will therefore be entitled to ten (10) days sick leave over a period of twelve (12) months (1 years).

During the first six (6) months of employment the employee is entitled to one day’s paid sick leave for every twenty-one (21) days worked.

In the case where the employee is unable to attend work due to medical reasons, the employee must ensure that the company is notified as soon as reasonably possible.

An application for sick leave must be supported by a certificate from a registered medical practitioner.

Family responsibilities leave

The employee will be entitled to three (3) days family responsibility leave during each leave cycle (12 months).Paragraph 11.1 only applies to an employee who: 

Has been employed with the employer for longer than four (4) months; and

Works at least four (4) days a week for the employer.

Paragraph 11.1 only applies to an employee who:

Has been employed with the employer for longer than four (4) months; and

Works at least four (4) days a week for the employer.

The employer is only obliged to grant family responsibility leave under the following circumstances:

When the employee’s child is born; or

When the employee’s child is sick; or

In the event of death of the employee’s spouse or life partner, parent or adoptive parent, grandparent, child, adopted child, grandchild or sibling.

 

Leave without remuneration

Leave without remuneration may be granted when the employee’s:

Sick leave credits are insufficient or have been depleted; or

Application for sick leave cannot be reasonably substantiated; or

Family responsibility leave credits are insufficient or have been depleted and no vacation leave credits are available.

The employee may apply in writing to be granted leave without remuneration for an extended period not exceeding six (6) months in exceptional circumstances. The application will be fully motivated.  The employer is not obliged to approve such an application.

If the employee is absent from duty without prior arrangement or permission, the employer may regard any period of such absence as leave without remuneration. This does not preclude the employer from taking disciplinary measures against the employee in terms of this contract.

Leave without remuneration will affect the accumulation of vacation leave credits on a pro-rata basis.

Leave without remuneration may affect the calculation of any bonus or reward that the employer may contemplate.

Deductions from remuneration

The employer may not deduct any monies from the employee’s salary unless the employee has agreed thereto in this contract or in writing on each occasion.

Trade secrets/confidentiality

The employee undertakes, without prejudice to any general duty of confidentiality, not to disclose during the continuance of this contract or afterwards, any of the trade secrets of the employer or any information which is confidential to the employer’s business.  Trade secrets include the following, which list will not be regarded as exhaustive man-hour tariffs, logistic techniques, proposal contents, client contacts, etc.

The employee further undertakes immediately after the termination of his/her services to hand over to the employer all documentation and data in his /her possession belonging to the employer, whether in hard copy, contained on computer disc or any other recording medium, including documents made by him /her in the course of his/her employment.  The aforementioned implies that any copy, abstract, or any precis of any document belonging to the employer made by the employee or any other person shall itself belong to the employer.

The employee will not be liable to the employer for information divulged in terms of legislation or a court order compelling him/her to do so.

Restraint of trade

The employee may not for a period of six (6) months from the date of termination of this contract, whether on his/her own behalf or on the behalf of any other person, close corporation, partnership or company solicit custom from, deal with or supply any person, close corporation, partnership or company with whom the employer dealt at any time during his/her employment.

Paragraph 16.1 also applies to potential clients in which the employer has shown interest or with whom the employer was negotiating at the time of the employee’s employment in the company.

This limitation of trade is restricted to the nature of the employer’s business, products and services.

This limitation can be waived should both parties so agree.

Exclusive service

The appointment under this contract is a full time appointment and the employee shall devote his/her full commitment, energy and attention to the employer’s business.  The employee shall not at any time during the continuance off this contract be directly or indirectly engaged, concerned or interested, whether for reward or otherwise, in any other trade, business or profession without the explicit written consent of the employer.

Policies, grievance and disciplinary procedure

The employee will be subject to the company’s disciplinary procedure, code of conduct and policies as determined and amended from time to time.

The Disciplinary Procedure and Code of Conduct is annexed hereto as annex B, and forms part of this contract.

Grievances or problems can be raised through the stipulated internal communication channels.

General

Any changes to this agreement will only be valid if they are in writing and have been agreed upon and signed by both parties.

 

Thus done and signed at ………………………… on this, the …………….. day of …………………………… 2005.

 

………………………….                                                     ………………………….

Employer                                                                                  Employee

 

………………………….                                                     ………………………….

Witness                                                                                             Witness

  

2.7 Categories of employment are established correctly in accordance with the organisation structure and organisational needs.

A new business or determined entrepreneur lacks the structure and development to succeed at first. Typically in a small business start-up the team lacks a set standard in structure that will actually work for them. The standards are yet to be set in place and in turn end up hurting company growth, progress and even revenue. However, most new start-ups all go through this phase because there isn’t a set standard in design for every company. So that being said most companies have different types of organizational structure. Sometimes it takes weeks, months, and even years to get a structural plan in place that works best for a company.

A new business owner will call all the shots and make all the decisions, so it’s somewhat impossible to think about proper organizational structure until a company has reached a certain point in revenue, employees, and business. Before any business can proceed from a start up, it must have the one boss calling all the shots, and in most cases would be the CEO or co-founders. All the decisions and support come straight from the top in one centralized region of the company. The founder or co-founders take all the serious matters and address them appropriately until the company can grow enough to have people put into place to achieve this for them. When they can a proper hierarchy can put set in place.

In a retail start-up situation, it would be the group of people in charge of the books, and getting the business of the ground would address solutions on a personal basis. Most big companies like Dell, McDonalds, or even Wal-Mart surely had to start in the phase at one point in time.

Developing your organisational structure is best done by drawing an organogram that can help you visualize your staffing structure.

An organogram is a visual presentation of the people, positions and responsibilities in the business that also indicate who reports to whom.  You will need to decide who will make up your management team and out of those individuals, taking into account the shareholders, who will be executive directors and non-executive directors.

Once you have developed an organizational structure, you need to develop job specifications for each individual.  Your people should know, and so should you, what they will be responsible for.  It is crucial for your staff’s motivation and job satisfaction to be clear on their deliverables.

You should also be very clear about the qualifications and experience you require from certain staff.  Some will require high levels of qualification like finance, marketing and legal jobs.  For others, it may be enough for the employees to have the necessary work experience to do the job.

Creating an Effective Job Description

Adapted from content excerpted from the American Express® OPEN Small Business Network

Creating a clear job description before you begin the hiring process can help you choose the best candidate from a pool of applicants. It usually consists of two areas — a summary of the job’s responsibilities, and a list of the key duties that will be performed. It’s worth your time and effort to think the job description through completely. A confusing, hazy, or incorrect description can make it much harder for you to match a candidate and a job, because you’re not sure about exactly what the job entails.

An accurate job description is also essential for drafting classified ads, job postings or other recruitment efforts. It lets you be clear on exactly which talents you’re looking for, and focus your ad on those attributes to attract the most qualified candidates.

Use the tips below when you’re drafting a job description.

Avoid generalizations

Be as specific as possible when you describe the duties and responsibilities you will need this employee to perform. Think in terms of the benefits this employee will provide to your organization or to your customers/clients. For example, don’t describe a video store clerk simply as someone who will “rent videos to customers.” Instead, if you use something like “will assist customers in choosing movies they will like by sharing his or her knowledge of recent or classic films,” you will know you need someone who loves film and can convey their enthusiasm to your customers.

Prioritize

Once you’ve created a list of responsibilities and duties, put them in order of importance. Start with skills that are integral to the job to be performed. This way you will know what is necessary for the successful execution of the job, what simply is desired, and what may actually be irrelevant. Hiring is often a matter of trade-offs, so by prioritizing, you’re helping yourself determine what you can or can’t live with.

Use measurable criteria

Be explicit about the kind of performance you’re looking for from someone, and whenever possible look for ways to quantify those criteria with numbers or dates. Otherwise, you may find that you’ve hired someone who can perform the necessary tasks, but falls short in productivity or throughput. For example, will an account manager be working with one, four or ten accounts at a time? Will a bookkeeper be expected to update accounts receivable daily, weekly or monthly?

Ask for help

Spend time with others in your organization who will be managing or interacting with a new employee to find out what they think the chief duties of this person should be. Those who are on the front lines with someone often know more about what day-to-day skills are necessary to perform a job successfully. You’ll find this input invaluable.

3. Be responsible for the institute and facilitation of disciplinary policies, actions and hearings.

 Range: Responsibility and participation in organisation disciplinary policy, procedures and disciplinary code of conduct. Disciplinary action is accurately recorded according to organisation disciplinary procedures

3.1 The ability to participate in disciplinary hearings is demonstrated.

 Disciplinary Code & Procedure.

Schedule 8 of the Labour Relations Act stipulates in section 3 that “all employers should adopt disciplinary rules that establish the standard of conduct required of their employees.”

” An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and available to employees in a manner that is easily understood by employees”

It is obvious that no employee may be disciplined for breaking a rule that he/she was not aware of in the first place, and therefore it is essential that the employer’s Disciplinary Code and Procedure be communicated to all employees in writing, in a language that the employees can clearly understand.

This may mean printing your Disciplinary Code in perhaps 3 different languages.

If an employee is illiterate, then the Disciplinary Rules must be translated to him in a language that he/she can clearly understand.

The Standards of Conduct should contain rules that are, as far as possible, common to all employees. It is advisable to include a dress code as well, particularly for those employees who have dealings with members of the public or the employer’s clients.

The Standards of Conduct should stipulate:

  • Serious offences: e.g. theft, fraud, insubordination, unauthorized absenteeism, consumption of alcoholic beverages on company premises, arriving at work under the influence of alcohol or any substance having a narcotic producing effect, arriving at work with the smell of alcohol on the breath, etc.
  • what disciplinary action may be imposed should an employee be found in breach or guilty of breaking any rule listed under serious offences. For example, “any employee found guilty of breaking any rule listed under Serious Offences shall be guilty of misconduct and dismissal may result.
  • in this way, employee are left in no doubt whatsoever regarding the consequences of unacceptable behaviour in the workplace. They cannot claim “I did not know it was such a serious thing” or “I never ever thought I could be dismissed for that.” Your employee will be fully aware of the consequences of his misconduct, and should he/she choose to misconduct himself/herself, then the risk and liability passes to the employee.

If you can show at the CCMA that your Disciplinary Code stipulates that dismissal will follow a certain act of misconduct, and if you can show that the guilty employee was fully aware of this, your case will be considerably enhanced in your favour.

This is simply because the CCMA requires that employers must follow their own procedure, and should an employer not do that, he will be found in procedural unfairness every time – of that you can be certain.

We do not recommend that sanctions should be listed as “first offence – verbal warning”  “second offence – written warning”  “third offence – final written warning ” and so on.

If you structure your Code in that manner, you are bound to follow that procedure and there may be an instance where the seriousness of the offence calls for dismissal. But you will be unable to dismiss if your code states “first offence – verbal warning.”

You will be bound, by the conditions of your own procedure, to only apply a verbal warning.

Your Code should simply state:

“In all instances of misconduct, where the employee is found guilty after following a fair procedure, the sanction imposed may range from a verbal warning to dismissal, depending on the seriousness of the offence and the circumstances surrounding the commission of that offence and other factors as decided by the Chairperson of the Hearing.”

“Where the code states that for a particular offence the sanction will be dismissal – such as listed under “Serious Offences” – then that sanction will be applied if it is for a fair reason.”

“In all cases, such verdicts and findings shall be the province of the Chairperson of the Disciplinary Hearing.”

The Investigation of the Complaint.

All complaints must be investigated.

The investigation is necessary firstly to establish if it is necessary to take disciplinary action in the form of a full Disciplinary Hearing, or if the matter can be solved informally at shop floor level.

It is not necessary on every occasion to invoke full and formal disciplinary procedures – but the investigation must in all cases be thoroughly undertaken.

In instances of minor infringements, the matter can usually be addressed at shop floor level in the form of an informal discussion between the supervisor, the accused, a shop steward and perhaps a witness. Keep a written record of the proceedings, and the usual written warnings can be issued.

The whole purpose of disciplinary action is not to punish, but to rather correct the situation and if this can be done with as little fuss and effort as possible, then so much the better.

In serious matters, where formal disciplinary action is inevitable, a full and carefully recorded investigation is a must.

Keep an investigation diary. In this will be recorded the date, time and action taken or aspect investigated.

Interview the accused, all witnesses, the victim, the complainant and any other person who may have something to contribute – either for or against the employer or accused.

Record in every case, the date, time and place of the interview, and keep notes of what was said or discussed.

This is in addition to formal statements made by those concerned.

The investigation process will include (as early as possible after the incident) obtaining written statements from the accused, any witnesses, the victim or complainant.

In obtaining those statements, do not sit with the deponent and tell them what to say. You simply ask them to make a written statement of their version of events and hand it to you.

After the complaint has been investigated, you decide whether a formal procedure is necessary or whether it can be disposed of informally.

If a formal procedure is required, you would normally hand the matter to the H.R. Dept to make the necessary arrangements.

The investigation must cover the following aspects and format;

Rule :

All statements must be in writing and must be in the deponent’s own words. Should the statement be written in a language that needs translation, then the translation must be done by an unbiased party.

All statements must be signed by the deponent. A Statement need not necessarily be a sworn affidavit, unless you intend to prefer criminal proceedings against the accused. In such cases, a sworn affidavit may be a good idea as this can be used in the criminal proceedings as well.

What is the complaint? (i.e. what happened? Describe in full what occurred.)

That Jan Pienaar, a Supervisor in the machine shop, is alleged to have physically assaulted Mr. Godfry Nkosi, a machine operator in the machine shop by striking Mr. Nkosi on the left side of his (Mr. Nkosi’s ) head with his (Mr. Pienaar’s) flat hand. (or fist, or with a piece of wood, or with a metal object etc.)

If an object (piece of wood, metal object) etc was used in the assault then that object must be seized and kept as evidence.

Mr. Pienaar must provide a written statement describing in his own words what occurred.

Who is the complainant? (The person who lodged the compliant)

The complainant is Mr. Godfrey Nkosi, a machine operator in the machine shop.

Mr. Nkosi must provide a written statement describing in his own words what happened.

Should Mr. Nkosi not be able to submit a written statement because he cannot speak English, then he must be permitted to write the statement in his own handwriting in his own language. You then submit that statement to an unbiased party for translation to English (or Afrikaans etc)

When did it occur?

Record the date, time and place of the incident.

Where did it occur?

Record in detail the exact location on the premises where the incident occurred.

If necessary, make a sketch to illustrate or support the written description of the location.

The description must be precise – if necessary, carry out an in loco inspection with the accused and/or the victim and/or the witnesses.

For Example :

‘The assault took place at Mr. Nkosi’s machine, which is the CNC lathe, machine number 7, situated in aisle number 4 of the machine shop.

Mr. Nkosi was standing on the South side of the machine mentioned above, and he was facing East at the time he was allegedly struck by Mr. Pienaar.

Example 2:

At the time of and on the date of the incident, Mr Johnson was engaged in re-wiring the distribution board number 7, which is situated in the ladies toilet on the 2nd floor of the main office block.

Who witnessed the incident?

Record the name and occupation of each witness.

There will be witnesses who will testify in favour of the victim and those in favour of the accused.

A written statement is required from each witness.

Each witness must state the date, time and place of the incident that he personally witnessed.

The witness must state precisely where he was standing in relation to the location of the incident when the incident occurred.

Each witness must describe in as much detail as possible what he personally witnessed.

Witnesses must not include in their statements anything that they personally did not witness.

After gathering all the above – the what, where, when, and who, you must sit down and carefully read through the statements of complainant, accused and witnesses and then decide whether the incident::

  • Is not serious and requires only an informal hearing at shop floor level
  • Or is serious and requires a formal disciplinary hearing.

After the investigation is complete, you will have the following documents to hand:

  • Written statement from the complainant
  • Written statement from the accused
  • Written statement from each witness.
  • Your investigation diary, containing pages detailing date, time, and what aspect of the complaint was investigated or the name of the witness questioned. The outcome of that session or segment of the investigation will be recorded.

Arrange all the documents in date order and number them from number 1 upwards. Make 5 copies of this “bundle” of documents.

You will then have 5 bundles of paginated (numbered) documents and statements recording the what, where, when, why, who and how of the incident.

Notice of Disciplinary Hearing.

The Notice of the Disciplinary Hearing must be specific.

In order to ensure a fair procedure, the notice must specify certain information :

[a] the date, time and place of the hearing.

[b] the accused must be allowed a reasonable time in which to prepare his defence against the charges. Normally, 3 to 5 days is considered reasonable.

The accused must be informed that:

[a] he is entitled to the assistance of a representative from his place of work.

[b] he is entitled to the assistance of an interpreter if required. If so, management must arrange for this.

[c] he is entitled to produce witnesses to testify on his behalf.

[d] management is entitled to cross examine his witnesses.

[e] he is entitled to cross examine managements witnesses.

[f] he is entitled to request a copy of any written statements that management may have from management witnesses to assist him in preparing his defence.

[g] he may not communicate with management witnesses in any way prior to the Hearing and nor may he discuss the case with management witnesses prior to the Hearing.

[h] should he be dissatisfied with the outcome of the Disciplinary Hearing, he may within 5 days of receiving written confirmation of the verdict and sanction lodge an application to appeal. The application must state the reasons on which the appeal is based.

[c] should the appeal process fail or the outcome not be to the satisfaction of the accused, then he is entitled to refer the matter to the CCMA or to the Bargaining Council if applicable, for conciliation or arbitration.

The accused must be given full information of what charges have been put against him, and the detail given must be sufficient to enable the employee to prepare a proper defence against the charges.

The letter should detail:

[a] the name of the Chairperson and his relationship to the employer.(the Hearing will be Chaired by Mr. R. van Heerden, Financial Director or whatever)

Disciplinary hearing proceedings

Confidentiality

Discipline is a confidential matter, therefore

  • Hearings are held in camera, and
  • Only those persons permitted in terms of the disciplinary procedure may be present

Laying the charge

During the3 hearing, the employee is confronted with the relevant facts by

  • Laying the charge(s)
  • Calling of witnesses and
  • Submission of any relevant documents

The employee and his representative is given the opportunity to study any documents and cross-examine witnesses

Presenting the defence

The employee and his representative must be given the opportunity to:

  • Submit evidence
  • Submit relevant documentation, and
  • Call witnesses

Returning a verdict of guilty

If the employee is found guilty as charged, the chairperson of the hearing must

Advance reasons for finding the employee guilty as charged;

  • Give the employee/ representative opportunity to present mitigating circumstances;
  • Decide on applicable disciplinary action to be taken against the employee;
  • Furnish reasons for deciding on the disciplinary action; and
  • Give the employer/ representative opportunity to address him on the applicable disciplinary action
 3.2  The ability to identify and classify transgression(s) is demonstrated.

The investigation of misconduct

All allegations of misconduct must be investigated. Allegations of misconduct received anonymously must be ignored.

A person bringing a verbal allegation must be instructed to put the allegation in writing.

It must then be established whether the allegation constitutes misconduct or not.

(1) To identify misconduct, the following questions must be asked :

[a] has a rule or standard been broken? [b] if so, is that rule or standard reasonable, lawful and attainable? [c] if so, was the transgressor aware of that rule or standard? [d] or could he/she reasonably be expected to have been aware of it? [e] has the rule or standard been consistently applied by the employer?

If the answer to the above questions is “yes”, then an act of misconduct has been identified.

Many employers confuse misconduct and poor performance. It is should be carefully noted as follows:

[a] in misconduct, the answer to the above five questions will be “yes”, and the act of misconduct will always be the fault of the employee. No employee breaks a rule or standard by accident, unless of course that rule or standard was not in place in the first instance, and the employee was completely unaware of it. In that case, no act of misconduct has been committed.

[b]  in poor performance, the employee has not broken a rule or standard, but has failed to reach a  required work performance standard in terms of quality or quantity of output. In poor performance, the  reason for it can be due to outside factors over which the employee has no control, or it can be due to ill-health or injury, or incapacity.

Thus, misconduct refers to the employee’s behaviour in the workplace and has nothing to do with how well or how badly he performs the job.

Poor performance refers to how the employee does the job and has nothing to do with his behaviour in the workplace.

Evidence.

Make certain that you only gather evidence that is relevant to the act of misconduct and that will enable you to prove your case at the disciplinary hearing.

Evidence that does not support your allegations is useless and the must be discarded.

Remember that you must prove the respondent (the accused the employee)  guilty on the balance of probability, and therefore you require quality evidence rather than quantity evidence.

If it is not a going to help in proving your case, then throw it out.

Witness statements.

Witness statements must be taken down clearly and concisely in the language used by the deponent (the person who is making the statement.)

Check witness statements against one another and look for discrepancies. You do not want a situation where your witnesses contradict each other’s evidence.

Prepare your witnesses properly, so that they clearly understand what is required of them at the disciplinary hearing and exactly what evidence they will give. It is a good idea to go through the procedure with your witnesses the day before the hearing.

Suspension of accused employee.

Do not suspend an employee unnecessarily.

Suspension on a minor allegation of misconduct might find you on the wrong end of the CCMA if the respondent refers a dispute of unfair suspension to that body.

Unfair suspension falls under the heading of unfair labour practice, and an unfair suspension may well render your procedure to be unfair –  so be careful of suspending without good cause.

Suspension is only really justified in instances where you have reason to believe that the respondent will or may  endeavor to interfere with or tamper with the evidence or witnesses, or he may attempt to intimidate your witnesses, or he may attempt to intimidate or victimise the complainant.

It may also be found necessary to suspend in order to preserve the peace and harmony of the workplace, such as in cases of assault or sexual harassment.

Other serious instances such as theft or fraud will also justify suspension.

Notice of suspension must be given to the respondent in writing, clearly setting out the reasons for the suspension and  brief details of the allegations against him/her, and should include if possible, details of the date time and venue of when the disciplinary hearing will be held.

Correctly Charging the Respondent.

It is  vital that the respondent be correctly charged from the beginning.

Make certain that you have correctly identified the act of misconduct for what it is, and charge accordingly.

If you attempt to change the charges or amend the charge sheet during the disciplinary hearing, your procedure will be rendered unfair.

Should the situation arise during the disciplinary hearing where it is discovered that the charges are incorrect, it would be better to revoke the proceedings and start again. Your reason for doing this would be, quite simply, that it is fair to the respondent to do so.

For example, if any employee has been absent without authority, do not charge the employee with insubordination – the charge must be what it is, namely unauthorised absenteeism.

A word on insubordination.

Our experience has shown that very few employers are aware of exactly what insubordination is.

Insubordination may be described as resistance to or defiance of authority or a disobedience, the refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, bringing the employer’s name into disrepute, and rebellious or mutinous behaviour resulting in an actual work stoppage.

In the Labour Appeal Court case involving CWIU and another v SA Polymer Holdings Pty Ltd T/A  Megapack (1996), insubordination was defined as “a willful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority.”

The characteristics present in insubordination would be a willful, verbal refusal of instructions, a willful disregard of management authority, or disrespect, rudeness, rebellious or disobedient gestures, manner or attitude, dismissive gestures, walking away, abusive language, knocking the written instruction or notification of inquiry from the senior managers hand, or taking it and discarding it, addressing the senior manager or director or supervisor in a disrespectful manner.

That should be sufficient to identify whether the offense is in fact insubordination or not.

At all times be reasonable.

It must be noted that what we are dealing with is not an unreasonable refusal to obey, but rather we are dealing with the refusal based on what to the employee perceives to be sound reasons for a refusal.

 THE DISCIPLINARY PROCEDURE FOR MISCONDUCT

Provided by the Commission foe Conciliation, Mediation and Arbitration (CCMA)

The purpose of these explanatory notes is to supplement the disciplinary procedure below and offer suggestions on how to apply the draft disciplinary procedure. These notes also highlight innovations introduced in the procedure.

The Code of Good Practice

This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice.

Misconduct is one of the grounds in law that justifies an employer terminating the contract of employment of an employee. However, for a dismissal for reasons of misconduct to be fair the dismissal must be:

  • Substantively fair- there must be a valid reason for the termination of the contract of employment. The facts of each case will determine whether the dismissal is for a fair reason and whether dismissal is the appropriate penalty; and
  • Procedurally fair – the dismissal must be effected in a procedurally fair manner.

This means that an employer may not just give notice in accordance with the contract of employment or in terms of governing legislation. An employer must also ensure that dismissals for misconduct are for a valid reason after a fair procedure has been followed.

Structure of the Disciplinary Procedure

The procedure is drafted on the assumption that an employer will apply progressive discipline on the understanding that discipline should be corrective rather than punitive. This means that the employer should endeavour to first correct an employee’s behaviour, such as by issuing:

  • verbal warnings for minor transgressions;
  • written warnings for consistent misconduct; and
  • final warnings for persistent misconduct.

Dismissal should be considered as a last resort.

The procedure provides that before an employer issues a warning (written warning or final written warning) to an employee, the employer must meet with the employee concerned (see paragraphs 5.2 and 6.2). The purpose of this meeting is for the employer to hear the employee before the employer issues the written warning.

The procedure is intended to provide a framework for parties to use in drafting their own disciplinary procedure.

How to use the Procedure

The procedure sets out the minimum requirements, which any disciplinary procedure should contain.

Parties may wish to supplement their own procedure with this procedure or use this procedure to provide a basic structure for developing their own procedure. However, it is a procedure, which, if applied as it currently stands, should ensure that discipline is fairly and effectively administered.

The Code of Good Practice requires employers to adopt disciplinary rules that establish the standard of conduct required of employees. The Code recognises that the content of disciplinary rules will vary, depending upon the nature, size and type of undertaking in which the employees are employed.

Throughout the procedure square brackets “[ ]”are used to indicate where the parties must insert details to make the procedure specific to their own situations. For instance, the appropriate designation of the manager who will be required to manage the type of discipline described in the procedure is left open for the parties to complete. The designation of the appropriate manager will depend on the size and structure of the employer.

Service of Notices referred to the Procedure.

All written notices must be properly served on the employee concerned (written warning, final written warning, notice to attend a disciplinary procedure etc.)

It is recommended that the employee who is served with a notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with a notice, the employer should record this fact on the notice and state the time, date and place where the notice was handed to the employee concerned.

Duration of Warnings

The procedure suggests that:

  • a verbal warning should remain valid for 3 months (see paragraph 4.3);
    · a written warning should remain valid for 6 months (see paragraph 5.4); and
    · a final written warning should remain valid for 12 months (see paragraphs 6.5).

However, the length of time warnings should remain valid are suggestions only (note the square brackets) and this issue should be decided upon by the employer and the employees or unions with whom the employer negotiates the procedure.

Disciplinary Records

The Code of Good Practice recommends that employers keep a record for each employee specifying the nature of any disciplinary transgression/s, the actions taken by the employer and the reason/s for such action/s. For this reason the disciplinary procedure requires the employer to file copies of any written warning, final written warning or any representation made by the employee on the employee’s personal file.

Representation at a Disciplinary Enquiry

The disciplinary procedure provides that a fellow employee or a shop steward of a recognised trade union should represent an employee. If a shop steward is called to attend a disciplinary hearing the Code of Good Practice requires an employer to consult with the shop steward’s trade union prior to issuing any notice to attend a disciplinary enquiry. This is set out in paragraph 7.4.

Disciplinary Enquiry

The chair of the disciplinary enquiry must, insofar as it is possible, be a person who is able to make an independent decision based on the facts presented at the enquiry. The chair of the disciplinary enquiry must be a person who has not been involved with investigating the employee concerned or who is going to prosecute the charges against the employee in the disciplinary hearing.

  • The chair of the disciplinary hearing must consider whether:
  • the employee being charged broke a rule of conduct in the workplace;
  • the rule was valid or reasonable;
  • the employee knew about the rule or should have known about the rule; and
  • the employer has been consistent in applying the rule.

Once the chairperson of the disciplinary hearing has made a determination about whether or not the employee is guilty of the offence with which the employee is charged the chairperson must consider the appropriate sanction to impose, after having heard the employee in this regard. The chairperson must consider whether dismissal is the appropriate remedy to take against the employee for breaking the rule or whether a less severe penalty, such as a final written warning or suspension would not be more appropriate. Each case must be judged on its own particular facts and the chairperson of the disciplinary hearing should always take into account the nature of the job and the circumstances surrounding the commission of the offence itself.

The Code of Good Practice recommends that when deciding whether or not to impose the penalty of dismissal, the employer should consider:

  • the gravity of the misconduct;
  • the employee’s circumstances, including length of service, previous disciplinary record
  •  and personal circumstances;
  • the nature of the job; and
  • the circumstances of the infringement itself.

It is imperative that the employer applies the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently between two or more employees who participate in the misconduct under consideration.

Appeals

The procedure does not contain an appeal procedure. It recommends that provided there has been a fair enquiry, which accords the accused employee all the elements of a fair hearing, there is no need for an appeal hearing. This view is based on a reading of Schedule 8 of the Labour Relations Act, being the Code of Good Practice.

Direct referral to arbitration and appeals

The decision not to include an appeal procedure is also premised on the view that the parties may prefer to include in their disciplinary procedure provision that if the outcome of the disciplinary enquiry is challenged, the dispute is referred to private arbitration for a final and binding award.

However, if the parties decide that they want to include an appeal hearing into their disciplinary procedure, the following is a suggested appeal procedure. The appeal procedure would follow as paragraph 9. However, paragraph 8.2 would need to be deleted.

  1. Appeals

9.1 An employee who is dismissed shall be entitled to appeal against such
dismissal to the [appropriate managerial structure].

9.2 Appeals must be noted in writing within five (5) days of the decision, stating the grounds of appeal.

9.3 The [appropriate managerial structure] shall determine if it is necessary to hear further evidence, or to allow further submissions to be made, and may confirm, vary or uphold any appeal.

9.4 The [appropriate managerial structure] may delegate its powers in 10.3 to a sub-committee or representative.

9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that
date on which the employee is advised of the outcome of the appeal hearing. An employee who is dismissed must be informed that’s/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed.

Paragraph 9.5 is drafted in these terms as the procedure for an appeal hearing must take into account the 30 days within which a dismissal dispute must be referred to the CCMA for conciliation. In terms of section 190 of the Labour Relations Act, the “date of dismissal is the earlier of-

  • the date on which the contract of employment terminated; or

(b) the date on which the employee left the service of the employer.”

This appeal procedure states that the dismissal only becomes effective on the date that the employee is advised of the outcome of the appeal hearing. This will allow the exhaustion of internal procedures, including the appeal hearing, before a dispute is declared and referred for resolution.

Referral of a dispute

An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee’s dismissal. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8).

It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted.

INCAPACITY PROCEDURE FOR POOR PERFORMANCE

  1. Objectives
  • This procedure applies to all employees, other than probationary employees who are alleged not to be performing to standard. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply.

1.2 The objectives of this procedure are to:

1.2.1 assist employees to overcome poor performance and to perform to the standard expected of them;

1.2.2 promote efficient and effective performance by employees;

1.2.3 enable the employer to function efficiently and effectively; and

1.2.4 assist the employer to apply corrective action where appropriate.
1.3 It is the responsibility of the employer to decide when it is necessary to apply this procedure.

2 Procedure for employees in respect of Poor Performance

2.1 If the employer is of the view that an employee, other than an employee on probation, is not performing in accordance with the job that the employee has been employed to do, the employer must:

2.1.1 give written reasons why it is necessary to initiate this procedure;

2.1.2 after serving the written reasons referred to in clause 2.2.1, meet with the employee, and if the employee so chooses with the employee’s trade union representative and/or a fellow employee.

2.2 In the meeting the employer must:

2.2.1 explain the requirements, grade, skills and nature of the job;

2.2.2 evaluate the employee’s performance in relation to the requirements of the job;

2.2.3 indicate reasons for perceived poor performance;

2.2.4 hear the employee or the employee’s representative on:

2.2.4.1 whether the employee has performed in accordance with the requirements of the job; and

2.2.4.2 if the employee agrees she or he has not performed in accordance with the requirements of the job, give reasons.

2.3 After hearing the employee’s standpoint, the employer must, if necessary:

2.3.1 develop and initiate a formal programme of counselling and instruction to enable the employee to reach the required standard of performance, which must include:

2.3.1.1 assessing with the employee the time that it would take for an employee to overcome the poor work performance;

2.3.1.2 on the basis of the assessment, establishing realistic time frames within which the employer will expect the employee to have met the required performance standards; and

2.3.1.3 if necessary, identify and provide appropriate training for the employee to reach the required standard of performance, and

2.3.2 establish ways to address any factors that affect the employee’s performance that lie beyond the control of the employee.

2.4 If the poor performance of the employee is not remedied within the time frames established by the programme, the employer must:

2.4.1 give the employee a written report on the outcome of the procedure; and

2.4.2 consult again with the employee to explain the outcome of the procedure, and on measures to address any problems indicated in the report.

2.5 The employer should keep a record of all counselling sessions.

2.6 After consulting with the employee, the employer must consider whether:

2.6.1 to continue to give the employee the appropriate guidance, instruction and counselling and establish a further, appropriate period for the employee to meet the required standard of performance,

2.6.2 to mentor the employee, or

2.6.3 to convene a poor performance hearing to consider what action should be taken, which action may include placing the employee in a more appropriate job or dismissing the employee.

  1. Poor Performance Hearing

3.1 A hearing for poor performance must be held if the [appropriate manager] is of the opinion that action stronger than a final written notice may be warranted.

3.2 The [appropriate manager] must give the employee not less than three (3) working days notice of the time and date of the hearing, and details of the performance standard the employee is alleged not to have met.

3.3 The following persons may be present at such a hearing:

3.3.1 A chairperson, [being the (Director/General Manager) or her/his nominee];

3.3.2 A representative of the employer or his/her nominee, who will present the evidence against the employee who has not met the required performance standard;

3.3.3 The employee who is alleged not to have met the required performance standard;

3.3.4 The employee’s representative (a fellow employee or a shop steward);

3.3.5 Any witnesses the employer or the employee wishes to call; and

3.3.6 An interpreter, if the employee requires one.

3.4 At the hearing the chairperson must ensure that:

3.4.1 the employer is allowed to explain the procedure followed in counselling the employee who has failed to meet the required performance standard including explaining:

3.4.1.1 in what respects the employee’s performance was unsatisfactory;

3.4.1.2 the steps taken to assist the employee to remedy the situation;

3.4.1.3 the time period granted to the employee to remedy the defects with the employee’s performance; and

3.4.2 the employee who is alleged to have failed to meet the required performance standard and the employee’s representative are given a full opportunity to present the employee’s case.

3.5 At the conclusion of the hearing the chairperson must decide whether the employee is able to meet the required performance standard or not. If the chairperson finds that the employee is not able to meet the required performance standard the chairperson may ask both the employee and the employee’s representative and the employer to make submissions on the appropriate outcome of the hearing. The Chairperson must decide on the appropriate action and inform the employee accordingly.

3.6 If an employee is determined to have failed to meet a performance standard that the employee could reasonably be expected to have met, the chairperson must consider whether there is any action that could remedy the situation other than dismissal. If there is not, the employee may be dismissed with notice, in terms of the notice periods prescribed in the employee’s conditions of employment.

3.7 The failure of the employee charged or the employee’s representative to attend the hearing shall not invalidate the proceedings, except if good cause can be shown for not attending.

4 Dismissals

An employee who is dismissed must be informed that he/she has the right to refer a dispute against the employer in terms of the Labour Relations Act of 1995 as amended, within 30 days of the date on which the employee was dismissed.

EXPLANATORY NOTES TO THE INCAPACITY PROCEDURE FOR POOR PERFORMANCE

The purpose of these explanatory notes is to supplement the procedure below and offer suggestions on how to apply the incapacity procedure. These notes also highlight innovations introduced in the procedure.

Application of the Procedure

This procedure is intended to apply to all employees who are not meeting a required performance standard.

It does not apply to:

  • probationary employees who should be treated in accordance with the procedure for probationary employees;
  • employees who are not performing due to ill health or injury; or
  • employees who are alleged to have breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply.

It only applies to employees who can reasonably be expected to bring their performance up to the required performance standard.

The Code of Good Practice

This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice.

An employer is entitled to expect employees to meet acceptable levels of performance. These standards or levels of performance must be relevant to the workplace and reasonable. The performance standards must be made known by the employer to the employee.

At the same time employees are entitled to expect that they will be dealt with fairly and if the employee is not meeting the required performance standard this will be drawn to the employee’s attention.

The employer must, depending upon the nature of the employee’s job, give the employee feedback, evaluation, training or guidance on how to meet the expected level of performance. The employee should also be given a reasonable period within which to meet the expected performance standard. If, despite counselling and training, the employee is still not able to meet the required performance standard, within a reasonable time period set, the employer may dismiss the employee for poor performance.

A dismissal for poor performance is only justified if the employee was counselled, offered assistance, given a reasonable time within which to improve the performance and despite being made aware of the possible consequences of a failure to improve his/her performance did not so.

Structure of the Incapacity Procedure

The procedure is intended to provide a framework for parties to use in drafting their own incapacity procedure

The procedure is drafted on the assumption that management will use the procedure as a guide to assist employees who are not meeting a required performance standard, to meet that standard. This means that the employer should endeavour to first inform an employee that his/her performance is not meeting the required performance standard. Thereafter the procedure sets out further steps that an employer should take in assisting an employee to try to meet the required performance standard.

How to use the procedure

The procedure sets out the minimum requirements, which any incapacity procedure should contain.

Parties may wish to supplement their own procedure with this procedure or use this procedure to provide a basic structure for developing their own procedure. However, it is a procedure, which if applied as it currently stands, should ensure that employees who are not performing to the expected standard are fairly and effectively managed.

Throughout the procedure square brackets “[ ]”are used to indicate where the parties must insert the appropriate designation of the manager who will be required to manage the type of action described in the procedure. The designation of the appropriate manager will depend on the size and structure of the employer.

Service of Notices referred to the procedure.

The written notices to attend a poor performance hearing must be properly served on the employee concerned. It is recommended that the employee who is served with the notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with the notice, the employer should record this fact on the notice and state the time, date and place where the notice was served on the employee concerned.

Incapacity Hearing

The procedure recommends a formal poor performance hearing, prior to any decision being taken to dismiss an employee for repeated poor performance. However, parties may wish to adapt their procedure to a less formal type of hearing where the chairperson and the representative of the employer are the same person. In all cases the person who chairs the hearing must be a person who is able to make an impartial unbiased decision based on the facts presented.

Appeals

The procedure does not contain an appeal procedure. It recommends that provided there has been a fair inquiry, which accords the employee who has not been meeting the required performance standard all the elements of a fair hearing, there is no need for an appeal hearing. This view is based on a reading of Schedule 8 of the Labour Relations Act, being the Code of Good Practice.

Dismissals

In the event that the employee does meet the required performance standard, despite the employer following this procedure, the employee may be dismissed. The employee should be informed that if the employee intends to challenge the dismissal the dispute must be referred to the CCMA or to a bargaining council with jurisdiction, within 30 days of the date of dismissal.

 3.3  The ability to implement procedures to handle and implement offences is demonstrated.

 See Assessment Criteria 3.2 for additional information

A grievance is a complaint or a dispute about an incident, situation or condition that is brought to the attention of management.

The grievance procedure is important because it serves as a safety valve in reducing aggression and tension; the worker cn communicate his grievance to management without fearing reprisala, it ensures honesty between supervisor and worker about difficulties and grievances, it enables management to identify and eliminate reasons for conflict and dissatisfaction; it influences employees’ moral positively and it makes it easier for the enterprise to achieve its objectives.

Causes of grievances

The major causes of grievances are: ambiguous or unnecessarily complex labour contracts that can be interpreted in various ways, the breaching of the contract by management or its representatives; disregard for the laws applicable to labour matters; disregard for normal procedure and unfair treatment of the worker by the supervisor.

Grievance Procedure

 

Step 1 Discuss the problem with the shop steward. (Leader of the trade union members) The shop steward must help with the filling of a form. A good rule for remembering the crucial facts in a grievance is the 5 W’s; What happened, When did the event take place? Who was involved? Where did it happen? Why is the complaint a grievance? The written grievance is submitted to the supervisor and discussions are held

 

 

Step 2 If no solution is found, management officials become involved. If the

employee and union representatives are not satisfied with management’s

decision, they may appeal to the next step

 

 

Step 3  

Again, management hears the union’s case and arguments, and then issues its ruling on the matter. If the union are still unsatisfied with the

results, they may appeal to a fourth and final step: arbitration

 

 

Step 4 The parties submit the unresolved dispute to a neutral third party for

binding settlement

 

 

Reducing grievances

Grievances can be reduced to the benefit of all parties involved by paying attention to the following:

  • The creation of a healthy climate with proper grievance administration and fairness and honesty in all respects.  Management and trade unions should see each other as partners rather than opponents.
  • The development of people-orientated supervisors who treat subordinates decently
  • An open door policy that applies throughout the enterprise.
  • Interviews with workers who resign in an attempt to establish the real reasons for their leaving.
  • The appointment of an ombudsman before grievances becomes really serious.
  • Periodic attitude surveys to establish what the atmosphere is in the enterprise and what makes employees dissatisfied.
3.4 Proof that allegations or charges are correctly analysed and adequately investigated is demonstrated.

 Investigating disciplinary matters

When faced with a potential disciplinary matter, carry out a full investigation before taking any action. Consider:

  • the alleged breach of discipline, the circumstances and consequences of the breach
  • the employee’s job, experience, length of service and disciplinary record
  • the evidence of witnesses
  • any recent changes to the job
  • any previous incidents
  • whether the employee has received appropriate counselling or training
  • any mitigating circumstances, eg health or domestic problems, or provocation

Once you have taken these factors into account, review the evidence to determine whether there is:

  • a case to answer, or whether the case is serious enough for disciplinary measures
  • an alternative to disciplinary action, eg an informal chat or redeployment

Suspending an employee while an investigation takes place

For certain serious offences you may need to suspend an employee while you investigate the matter. They should continue to receive their full pay.

You can only suspend an employee without pay if this is allowed in their contract of employment. However, try to avoid unpaid suspension as it may appear to penalise an employee before any disciplinary hearing has taken place.

Criminal offences

Don’t dismiss someone merely because they have been charged with or convicted of a criminal offence, either at work or outside it. You should investigate what action is justified given the employee’s role and consider whether it affects their suitability to carry on.

If it does, use your normal disciplinary procedure. If it doesn’t, decide whether you can keep their job open during any period of absence.

Base your decision on a reasonable belief following an investigation into the circumstances. However, if a criminal charge has been made, don’t put off taking appropriate, fair and reasonable disciplinary action merely because the outcome of the prosecution isn’t yet known.

The vital importance of keeping records

Employers who do not keep detailed records of disciplinary action taken against employees for misconduct, including the action taken and sanctions imposed, take a huge risk.

Time and time again, it has been shown just how vital proper record keeping is in regard to coming out on top at the CCMA.

In Gcwensha v CCMA & others, the employee had been dismissed for gross negligence, and the employer’s excellent record-keeping showed that the employee had a number of previous warnings for incompetence, negligence and inefficiency.

At the time of his dismissal, the employee was on a current warning, which had the effect of placing him on terms.

The court found that the employee had a “ deplorable record” which the employer was entitled to consider when deciding on a suitable sanction for the current transgression.

The employer’s excellent record-keeping saved the day.

In NUMSA v John Thompson Africa (Pty) Ltd [1997] 7 BLLR 932 (CCMA), it was the lack of proper record-keeping that landed the employer in trouble, and ended up with a reinstated employee.

The employee was dismissed for wilful damage to and deliberate misuse of company property, using abusive language, and being under the influence of an intoxicating substance.

The employee followed his employer’s appeal procedure, but no record of the proceedings at the disciplinary hearing was available for the appeal chairperson.

Since there was no record of the evidence led at the disciplinary hearing, there was no evidence to indicate that the employment relationship had been irretrievably harmed by the employee’s behaviour.

The employee was reinstated.

Schedule 8 – the Code of Good Practice – Dismissal requires that the employers must keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action.

The chairperson of a disciplinary hearing cannot apply his mind properly to the problem if there is no record of alleged previous disciplinary actions against the employee.

Obviously, the employee with a clean disciplinary record is the exception – there is no record to consider.

However, the chairperson is placed in a very difficult position when the employer submits as an aggravating circumstance, or perhaps in  closing arguments, that “ this employee is always misconduct himself and has had previous disciplinary hearings”, but when the chairperson calls for the previous disciplinary record it is found that there is no record to produce.

Such an employer goes to the CCMA with very little ammunition – and his case turns out to be rather something of a damp squib.

There can be no doubt that meticulous record-keeping and proper preparation is 90% of the battle in CCMA matters.

Poor record-keeping can result in only one thing – sloppy preparation.

And in such circumstances, you have lost before you even start

See also page 102 for the investigation of a complaint.

3.5  The fact that all relevant information is requested from the employer is demonstrated.

Misconduct in the workplace is not something any employer wants to have to deal with. Such activity results in animosity and hostility amongst employers and employees throughout and entire organisation if not properly managed.

Where allegations of possible misconduct in the workplace surface, such occurrences require strict and consistent attention, so as to ensure the right precedent is set. Disciplinary hearings are a necessary evil that each manager and organisation on a whole need to be well aware of and familiar to.

Managers, HR managers and employees need to have a thorough understanding of what a disciplinary hearing entails and how to prepare for such proceedings.

Without the correct application of such meetings and clear knowledge of the right way in which to deal with possible misconduct, employers are undoubtedly, even in the presence of a guilty party, held liable and accountable for the incorrect administration of disciplinary proceedings.

Addressing misconduct in the workplace falls on the employer’s shoulders and each organisation should have a clear and comprehensive process of operation when addressing disciplinary hearings. It is up to the employer to prove that a dismissal is the fair and just way forward and if ill-equipped to do so employers may end up with egg on their face and what’s worse, an untrustworthy or unreliable employee they now cannot get rid of.

On many occasions employers have attempted to manage the misconduct of defaulting employees but to the detriment of their lack of knowledge. Most commonly, employers fail in their attempts to dismiss a ‘delinquent employee’ because;

  • Unfair administration of disciplinary proceedings
  • Lack of relevant evidence
  • Failure to prove guilty in accordance to generally accepted policies and procedures
  • Failure to convince the chairperson of misconduct

Employers need to follow a systematic application when enforcing a disciplinary proceeding on any employee in a formal fair and transparent manner.

When addressing misconduct in the workplace which will ultimately set a disciplinary hearing in motion the following preparation needs to be adhered to by employers;

  1. Investigate the Accusations/ Suspicions or circumstances surrounding the Alleged Misconduct

After allegations or suspicions have been raised a full investigation and fact finding needs to be employed so as to gather relevant evidence of workplace misconduct.

  1. Consider the Circumstances of Alleged Misconduct

After the initial investigation, further scrutiny of the situation needs to be exercised in order to consider such facts in the context in which they occurred.

Here employers need to consider the following;

  • Was a rule regarding the alleged misconduct broken?
  • Was this rule in fact in place?
  • Was this rule applicable in accordance to the employee’s individual employment contract?
  • Was the employee aware of the rule?
  • Was the rule consistently adhered to and enforced by the employer?
  • Is dismissal a fair and just response to the misconduct under review?
  1. Evaluate the Evidence and Facts

Careful dissection of each fact found and the evidence of the alleged misconduct need to be administered. The how, the where, the why, the who and the what of the accused misconduct needs to be broken down and details in the most exhaustive manner.

  1. Formulate the Charges

Employers are now required to formally record the charges and communicate these to the accused in a comprehensive and detailed manner. In doing so, the employer will be required to communicate a formal notice, in writing, to the accused in request for them to attend a disciplinary hearing no later than 3 days prior to the disciplinary proceedings.

When preparing this written notice, the charges to which the accused will be required to face need to be clearly formulated and communicated, along with expected attendees, the date, time as well as place of the disciplinary proceedings.

  1. Selecting a Chairperson

Employers need to select a reputable chairperson to moderate during the disciplinary hearing. Often companies call on a labour law expert to chair and facilitate the disciplinary procedures so as to ensure correct conduct is adhered to. It is the chairperson’s responsibility to take minutes of the meeting which is another reason why an upstanding member of the organisation, legal department or 3rd party must fill this role.

  1. Selecting relevant Evidence to Present

Employers need to order and consolidate relevant evidence pertaining to the allegations of misconduct so that a systematic and organised presentation of such detail will be followed during the hearing. Focussing on the most relevant and applicable evidence, employers are required to follow a sequential delivery of evidence in the face or workplace misconduct during a disciplinary hearing.

  1.  Prepare Questions for Cross Examination

During a disciplinary proceeding the accused employee must be awarded the opportunity to state their case as well as question witnesses’ and contend allegations with their own questions and answers. Employers are required to prepare for possible answers to questions posed to them during cross examination by the accused as well as by the chairperson. Through thorough preparation, answers to possible questions and challenges should be prepared for in order to ensure a fair and just disciplinary hearing.

  1. Prepare a Closing Statement

Employers now need to end off with a closing statement in the final proceedings of a disciplinary hearing. By summarising the evidence and re-defining the allegations, will reiterate facts covered and items discussed and ultimately strengthen a legitimate and just disciplinary hearing. Employers are required to close with a final statement with the solution they wish to proceed with and deem fit and a necessity for the most amicable and cordial outcome to a disciplinary hearing in the case of workplace misconduct.

Disciplinary hearings are something that all employers hope to never have to face but more than likely will endure at some point in time during their reign. The best and only way to proceed with fair and just persecution against employees suspected of misconduct is to do so with integrity, transparency and by following a systematic procedure.

3.6 The fact that the employee and witnesses are properly prepared for the hearing is demonstrated.

Employees may find themselves required to appear in a disciplinary hearing for alleged misconduct. An employee may be suspended on full pay pending a hearing especially when the employee’s presence at the workplace may jeopardize any investigation.

The employer initiates a disciplinary hearing with the preparing of a Notice to Attend Disciplinary Hearing, which is then delivered to the employee.  It is critical that the charges are correctly formulated in such Notice as the employee can only be expected to prepare and answer the charges set out therein. The employer should give the employee not less than three (3) days notice of the enquiry and the Notice should contain, inter alia, the time, date and venue of the hearing, details of the charges and that the employee is entitled to:

  • Be represented by a Union Official (if applicable) or a co-worker of his/her choice;
  • An interpreter;
  • Call witnesses to give relevant evidence;
  • Give evidence;
  • Cross-question any witnesses called by the employer

AN EMPLOYEE’S GUIDE TO DISCIPLINARY AND DISMISSAL HEARINGS

Be prepared and seek advice

Facing the possibility of losing your job or being under investigation at work is a worrying experience. To have the best chance of continuing your employment and your working relationship with your employer you need to be fully prepared.

If you are a member of a trade union you should contact it for advice and to ask for a trade union representative to accompany you to any meetings with your employer.

Disciplinary Procedure

Every employer must have a written procedure setting out their rules and standards that are expected from you at work, and the procedure your employer will follow if disciplinary action or dismissal is being considered. If you do not already have a copy of the procedure, ask to see it and make sure you understand it before any disciplinary meeting takes place.

Suspension

If the allegation is serious enough, the disciplinary procedure normally allows an employer to suspend an employee pending an investigation. You should receive your normal pay throughout any period of suspension. Being suspended is not a disciplinary penalty and does not mean that your employer has already reached a decision. It should be seen as a neutral act to allow your employer to carry out a full investigation. If your employer tries to suspend you without pay, or if your suspension goes on for an excessive period of time you need to seek advice.

Preparation for an investigatory meeting

Sometimes employers will hold an initial meeting prior to a disciplinary hearing

Before the meeting make sure that you know what it is for. Ask for copies of any documents and witness statements that your employer has obtained so that you can be properly prepared for the meeting.

There is no legal right to be accompanied to an investigatory hearing but most employers allow you to have a work colleague or trade union representative with you. We would always advise you to attend with someone if allowed.

Attendance at an investigatory meeting

You should attend and answer any questions as best as you can. Your employer does not have to prove that you have breached the disciplinary rules, but only has to have a reasonable belief before taking disciplinary action, and if you refuse to answer questions, your employer may assume that you are guilty.

If you accept the allegations against you, make sure you tell your employer about any mitigating circumstances (eg you were unaware that what you did broke a disciplinary rule, other employees have done exactly the same as you and no disciplinary action has been taken, this is the first time that anything like this has happened, you have had insufficient training or you were under extreme pressure at the time). If the allegation could result in criminal charges or have other implications outside work you always need to take appropriate advice.

Following the investigatory meeting

If your employer accepts that you did not break a disciplinary rule or that there were sufficient mitigating circumstances; that will be an end to the process, and if you have been suspended you will be asked to return to work.

Otherwise, you will probably receive a letter asking you to attend a disciplinary hearing.

Preparation for a disciplinary hearing

The allegations against you should be set out fully in the letter calling you to the disciplinary hearing. If they are not or you do not understand them, ask your employer for more details or for an explanation prior to the hearing.

You are entitled to be accompanied or represented at a disciplinary hearing by a trade union official or a fellow employee. If you would prefer to be accompanied by a friend or family member your employer may agree if you ask in advance. If your representative is unavailable on the date set for the hearing, ask for the hearing to be put back to a date that is convenient. You are entitled for the date to be put back by up to 5 working days.

If your employer has not already provided these to you ask for the following:

notes of any previous meetings

any witness statements prepared for the hearing

any documents your employer intends to rely on

any other documents which you think are relevant to your defence of the allegations.

Prepare a list of everything you want to say, all the questions you want to ask and of everything you disagree with in the information provided to you by your employer. If possible write a statement giving your version of events.

Ask any work colleagues who are willing to support you to put something in writing or ask if they can attend the hearing. If your employer has told you not to contact your colleagues ask your representative to do this for you, or give a list of names to your employer.

If you have a representative you should meet to discuss your case prior to the hearing.

Attendance at a disciplinary hearing

Even if you decide to represent yourself it is worth taking someone with you to make notes.

Hand over to your employer copies of any prepared statements and any further documents that you want to be considered.

Answer any questions as best as you can and challenge anything that your employer says that you do not agree with. If you believe that the real reason you are being disciplined is not the reason your employer has given, you should say so at the hearing.

Ask for an adjournment if anything takes you by surprise during the hearing and you need time to consider your response (eg if your employer produces new documents which you have not seen before).

At the end of the meeting make sure you have covered everything you wanted to say.

You may be told the result of the hearing at the end of the meeting but quite often your employer will write to you to tell you the result.

Disciplinary sanctions include verbal warnings, written warnings and dismissal. Some disciplinary procedures allow penalties of unpaid suspension or demotion.

Appealing a disciplinary sanction

If you are disciplined or dismissed and you disagree with the outcome you can appeal the decision. If you are not sure on what grounds you can appeal it is better to appeal straight away and say that you will supply the grounds of appeal later on, rather than miss a time limit for an appeal. The letter from your employer advising you of or confirming the outcome of the disciplinary hearing should tell you to whom and by when you should appeal.

Ask for a copy of the minutes of the disciplinary hearing and if you believe the notes are inaccurate tell your employer why.

Your grounds of appeal can ask for any points raised at the original hearing to be dealt with again and you can include any further points that arise from the procedure, the hearing or from the minutes. If you think there was insufficient investigation of the allegations against you or if you think the real reason for disciplining you was not what you have been told- you should say so in your letter of appeal.

Your appeal should not be heard by the same person who made the decision from which you are appealing and if possible they should have no previous knowledge of the events which led to the original hearing.

The procedure at the appeal hearing is similar to that at a disciplinary hearing. and the same issues can be dealt with again. Sometimes the appeal will be a complete rehearing but sometimes it will only deal with the points you have raised in your letter of appeal so you need to that the letter covers everything you want to say. If there were any witnesses at the previous hearing they will not normally be at the appeal but their evidence will be available.

You have the same right to be accompanied or represented as at the original disciplinary hearing. If anything it is more important to make sure you have someone with you at the appeal.

Bringing an Employment Tribunal Claim

Most claims have to be made within 3 months (3 months less one day) of the disciplinary hearing or date of dismissal. Do not wait for the results of an appeal hearing before seeking legal advice.

Individual employers procedures vary. This guidance is for general information only, although it is intended to cover most situations.

3.7 The fact that the employee’s case is sufficiently and effectively presented is demonstrated.

Who Can Accompany the Employee

The law says that the employee can be accompanied by a companion who is either:

  • A full time officer of a trade union
  • A trade union representative – usually but not necessarily from the workplace
  • A colleague from the same workplace

What can the companion do at the hearing?

Again, the law is clear on this. The companion may make an opening address on the employees behalf at the beginning of the hearing. After that they cannot address the hearing again unless the employer agrees. However you may confer at any time, and they can take detailed notes of the hearing which will be very useful if the case ever goes to appeal or ends up in an Employment Tribunal or other court.

But this is a legal minimum. Where unions have negotiated a procedure it is likely that the companion will be free to effectively represent the employee and be able to speak on his/her behalf at any time and ask questions of any witnesses.

Before a hearing you should try and find out what your companion will be allowed to do and say. You should certainly take sufficient time to really go through your case and work out what you and your companion will say.

If your companion is not free at the time when the meeting is organised, you can ask for a postponement of up to 5 working days and ask for a different time within those 5 days when your companion is free. The alternative time must be a reasonable one.

What happens if you are not allowed to bring a companion?

If your employer refuses to let you bring a companion, you should not attend a formal hearing, Instead you should put in writing that you will not attend until you are allowed to bring a companion with you as is your right under the Employment Relations Act 1999.

If you have a meeting with your employer that you think is entirely informal but he or she then tries to give you a formal warning or impose some other punishment, then you should politely ask for the meeting to stop at that point and then be reconvened at a time when you can bring a companion.

If they still go ahead, you should write after the meeting and ask for it to be held again with your chosen companion present. You should also write down as full a note as possible describing what happened at the meeting. But don’t forget you can be dismissed on the spot without any hearing for gross misconduct (see above).

If your employer refuses to allow you to bring a companion you can complain to an Employment Tribunal.

If they sack you because you tried to take a companion into the hearing, you can claim unfair dismissal at an Employment Tribunal. Unlike some unfair dismissal claims how long you have worked for your employer does not matter.

If you are sacked for other reasons, but you were not allowed to take a companion into the hearing then you are likely to have a strong case at a Tribunal, and you may well get extra compensation.

If you lose out in some other way – for example by losing performance related pay – you can make a claim to an Employment Tribunal.

Any complaint to an Employment Tribunal must be made within three calendar months of the day on which your employer refused to allow you to be accompanied or from the date of dismissal if you are dismissed.

If you are still employed by that employer, the tribunal can order the employer to hold the hearing again and allow you to be accompanied. If you have been dismissed you will be entitled to compensation for the breach of your right to be accompanied as well as compensation for the dismissal if it is found to be unfair. This is a complex legal area and you should seek advice from your union or another advice agency.

3.8 The fact that witnesses are appropriately questioned and cross-questioned is demonstrated.

 Whether an accused employee has the right to cross examine evidence brought against him/her at a disciplinary hearing has recently become a controversial issue.

Before examining this question, it is necessary to look at what is meant by the concept of “cross examination”.

When a person is accused of something, that person is entitled, before the verdict is decided, to understand the allegations and to put forward a defence in response to the charges.

One aspect of the accused’s right to respond is the right to question the evidence led. The normal format for this is as follows:

The party bringing the allegations presents evidence in support of the charges. Once a witness has completed his/her evidence, the accused is entitled to challenge what the witness has said. This is called “cross examination”.

This fundamental right to cross examine is given to all accused persons in our criminal and civil courts, at arbitration hearings, at the CCMA and at bargaining councils, and at the Labour Court and Labour Appeal Court.

This right is so integral that very few limitations may be placed on it. The presiding officer is not entitled to refuse the accused the right to cross examine. Nor is he/she normally entitled to cut short the cross examination. An exception might be made to this rule if the accused is repeating questions that have already been properly answered by the witness.

The cross examiner is not allowed to badger or bully the witness. The cross examiner is also not allowed to ask questions that are irrelevant to the case.

Other than these common sense limitations, the accused’s rights to cross examine the witness freely is sacrosanct. The person who has called the witness is neither allowed to interrupt, nor to assist the witness with the answers to the questions or other challenges put by the cross examiner.

While these rules are well established in the courts and other tribunals it is still an open question as to whether the rights of cross examination apply to accused employees at disciplinary hearings.

In his article on “Conducting disciplinary hearings by correspondence” in Contemporary Labour Law (May 2007), Wayne Hutchinson addresses this issue.

He says the Code of Good Practice: Dismissal contained in Schedule 8 of the Labour Relations Act does not confer the right to cross examine witnesses in a disciplinary hearing.

This is controversial. For decades, it has been a common practice at disciplinary hearings to allow cross examination and it could be argued that this right has become entrenched in common law.

Furthermore, it appears that presiding officers who do not allow cross examination might be interpreting the Code of Good Practice: Dismissal too literally. Hutchinson is right that the code does not expressly provide for cross examination.

However, it does provide that the employee should be “allowed an opportunity to state a case in response to the allegations”. In my view, the right to respond encapsulates the right to challenge the evidence brought against one.

Section 35 (3) (i) of the Bill of Rights contained in the Constitution of South Africa gives every accused person the right to “adduce and challenge evidence”.

This means that every formally accused person has the constitutional right to bring his/her own evidence and to challenge any evidence brought against him/her.

In my view, should an accused employee not be allowed to cross examine witnesses, his/her opportunity to challenge the evidence would be seriously diluted and his/her right to defend his/her case would be severely compromised.

Having presided over countless disciplinary hearings, I have never come across an employer that has not claimed the right to cross examine the accused employee. It would therefore be folly for the employer to deny the same right to the employee.

Coming to the employer’s right to cross examine we need to look at the limitations placed on this right. The employer is in control of disciplinary hearings because these are convened at the workplace owned and managed by the employer.

The employer, therefore, normally claims, as an automatic right, the opportunity to question the accused employee or his/her witnesses. And I see no problem with this in principle. However, the key question is: “Who specifically has the right to cross examine the accused?” Normally it is the person bringing the charges on the employer’s behalf.

This person is normally called the complainant, initiator or charging officer. However, the employer could be in trouble where the chairperson, the official presiding over the hearing, conducts the cross examination.

In the case of Botha v Mac Steel Trading (Pty) Ltd (2007, 3 BALR 197) the employee was dismissed for turning a blind eye to theft by subordinates.

During the disciplinary hearing the chairperson vigorously cross examined the accused employee. The arbitrator, therefore, found that the dismissal was procedurally unfair and ordered the employer to pay the employee compensation.

3.9     The fact that pleas in mitigation are properly prepared and presented is demonstrated.

 Once a decision is made not to contest charges at a disciplinary hearing, but to present a ‘plea in mitigation’, the correct strategy must be considered.  Your legal advocate will of course need to go in fully prepared.  It is not simply a case of “rolling over”; rather it is an exercise in creating a true picture of all the circumstances, in order to gain the most favourable sentence from the Trier of fact.

In fact, there is often no agreement between the defence and prosecution as to what the appropriate penalty would be, even where facts are admitted, so such hearings as these can still be adversarial in nature.

When one thinks of the word “whitewash”, a scene in a Mark Twain novel is brought to mind where the protagonist is punished by being made to whitewash many yards of a paling fence.  It was an unhappy scene in the novel (at least at first), and whitewashing will likewise prove an unhappy experience if it is attempted in a court or tribunal.

Do not attempt to sugar coat or whitewash the actions that occurred, or make a political statement.  It may even create the impression in the mind of the judge or member that there is no genuine remorse and no real lessons learned.

With political statements, at best the judge or member will simply place such arguments in the ‘too hard basket’ as being outside of their jurisdiction.  Such arguments may sometimes have real worth, but are best left out of a plea in mitigation in disciplinary proceedings.

The Plea in Mitigation

A good plea in mitigation should provide an explanation for any unprofessional conduct, and hopefully offer some mitigating circumstances.   Such a plea will have many elements to it, and ideally, as many bases will be covered as possible.

If the situation is bleak for the client, and the facts overwhelming, it will be difficult and probably counter-productive to ‘whitewash’ the facts.  Despite this, on many occasions you will be able to cite some form of chronology that explains why the practitioner acted the way they did, or detail circumstances that may have contributed to the offence.

Examples of other contributing or ‘mitigating’ factors may be:

where a ‘safety’ incident is contributed to by natural conditions such as freak weather

where there were contributing factors outside of the practitioner’s control or caused by the involvement of other parties

In some cases, on a building site the prosecutor may be interested in prosecuting a number of parties.  Once you obtain witness statements in a brief of evidence this will become clear, and this information may assist the defence lawyer in ‘plea bargaining’ with the prosecutor.

If for example a prosecuting authority is more interested in its action against a builder or owner in a development, it may agree to resolve the matter against other parties (such as a building surveyor or certifier) on the basis of undertakings as to future conduct and payment of costs.  The possibilities for this will of course vary on a case by case basis.  Whether such an outcome is possible will also of course depend on the overall conduct of the practitioner in all the circumstances.

At the outset, your lawyer should always obtain a full brief of evidence from the prosecutor’s lawyer to assess the situation.  Even where the practitioner is pleading guilty, they may want to comment on statements made by other parties in witness statements.

A good plea in mitigation follows a formula and you should try to ‘tick’ as many boxes as possible.  If you can tick most of the boxes in your submission you have normally done as much as you can do to extract the best decision from the court or tribunal.

The ingredients of the plea

So, here are the key ingredients of a strong plea in mitigation:

Explanation of why the conduct occurred;

Evidence (if possible) that any mistakes were honest/ made in good faith;

Ownership and admission of guilt;

Contrition and remorse;

Changes to work practices/systems to avoid a repeat;

Evidence of changes to behaviour/continuing education;

References i.e. professional character references;

The harm principal i.e. if  there is no evidence of harm flowing from the conduct

Financial limitations and distress;

Demeanour and appearance;

Sound prior record (i.e. is the conduct habitual or aberrational?)

Sometimes it will not be appropriate to touch on all of these elements, but you should tick as many of the boxes as you can.  Where there is some wrongdoing admitted, then evidence of changes to work practices and any continuing education is invaluable.

Case law can sometimes be invoked e.g. Harm principal: Hans v Building Professions Board [2008] NSWADT 285.  O’Connor J took significance from the fact that “no harm of any great significance resulted from the conduct of the respondent.”

References

These are generally paramount but some science needs to be applied.  You should ensure the reference hits the right notes.

The reference should ideally:

Describe the person, their qualifications / profession and how they know the practitioner;

Describe their professional dealings with the practitioner;

Speak favourably about the practitioner’s knowledge, professionalism, diligence, honesty etc;

Advise the writer is aware of the complaints/allegations;

Say something to the effect that the practitioner is remorseful about what occurred or that it is an aberration.

Avoid a reference that sends the wrong message.  For example, if you are acting for a building surveyor charged with failing to adequately ensure plans are consistent, a reference that suggests the practitioner works briskly and speeds up the process would be disastrous.

Aim for at least 2 or 3 key references from someone in the person’s industry.  It goes without saying that these references should be as current and up-to-date as possible.  As a back up, any references that also talk about character or contribution to the community are also helpful.

There will be the odd occasion where the practitioner will not be able, or will be unwilling, to obtain references.  But these occasions will be the exception rather than the rule.  If the practitioner has a sound record and there are other things you can say in their favour, there is no need to panic if it is not possible to obtain references, though they will certainly assist where provided.

Applicability to various professions

Practitioner conduct deals with notions of administrative law that can be translated to various different callings.  For example “natural justice” or “procedural fairness” applies to all.  Some terminology such as “unsatisfactory professional conduct” and “professional misconduct” also pop up in different areas.

Victorian lawyers facing complaints under the  Legal Practice Act 2004 (Vic) are regulated by a two tiered benchmark of  unsatisfactory professional conduct and professional misconduct, just as there is with private certifiers in NSW under the  Building Professionals Act 2005 (NSW) (“the BPA”).

The BPA has largely adopted the definitions of these two conduct categories from s109R of the EPA Act 1979 (NSW).

Section 109R lists various factors that comprise unsatisfactory professional conduct.  It then defines professional misconduct as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or withdrawal of the certifier’s accreditation.

There are differences in terminology however, even within the construction industry.  The Building Act 1993 (Vic) refers to unprofessional conduct (in s 179(1)) but does not define it.  The definition remains open ended.

Generally there are two levels of censure, but given the lack of uniformity across states and professions, it is difficult to consistently know the difference between:

conduct that is worthy of the highest level of disciplinary censure; versus

conduct that attracts lesser disciplinary censure.

There are some cases that are worth mentioning across various professions e.g.

Law Society of NSW v McElvenny [2002] NSWADT 166 this looked at various factors that can be considered by a Tribunal to militate against the highest level sanction, e.g. such matters as contrition, candour with an investigation and hearing, demeanour, an otherwise sound record.

Craig v Medical Board of South Australia [2001] SASC169: this establishes that the protection of the public is the key aim of disciplinary proceedings, not to punish a practitioner in a punitive sense.  In some cases, the public might be better served in circumstances where a practitioner is allowed to continue practising, albeit with better education/systems.

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: Gypsy findings) [2003] NSWADT 96: this case is relevant to the onus/balance of proof in disciplinary cases.  The Tribunal said the standard of proof was more than a mere balancing of scales.

What was required was:  “precise and not inexact proof of the allegations of misconduct and…a conclusion that it is comfortably satisfied that…proof of the complaint has been established.” (at paragraph 99).

As a building practitioner or professional person, if you are faced with a disciplinary proceeding or investigation, it is an extremely stressful time. It is pretty difficult not to take the process personally, and often a cool head is needed to strategise.  Your lawyer will care about your plight, but will also have that level of detachment to make sound decisions.  When faced with such an investigation or proceeding, you should seek experienced legal assistance as soon as possible.

3.10 The fact that relevant appeals are lodged in terms of the disciplinary procedure is demonstrated.

THE APPEALS PROCEDURE

PREPARATION

Employees may appeal because they feel that the action is unfair, there is new evidence to consider, or they feel that the procedure was not followed adequately.

The employee should lodge an appeal within a specified time-limit (ideally 10 working days), stating their reasons.

If the employee decides to appeal, it should be dealt with as soon as possible, not later than 20 working days after receiving the appeal request.

Inform the employee in writing of the time, date and place, and that they can be accompanied at the appeal hearing.

An Appeals Panel should be appointed to hear the hearing – ideally 3 members of the Board or Management Committee who were not involved in the disciplinary hearing, one of whom will act as the Panel’s Chair.

Arrange for a note-taker not involved in the case, to be present.

The Appeals Panel can uphold the original decision on disciplinary action or overturn it if it becomes apparent it was not reasonable or if the disciplinary procedure was not followed adequately.

CONDUCT OF APPEALS HEARING

The Appeals Panel should

introduce all present and explain their role

read out the employee’s written reason for lodging an appeal

explain the purpose of the hearing and how it will be conducted

ask the employee why they are appealing

consider any new evidence presented allowing the employee or their companion to comment on it

allow the employee to call any witnesses and provide opportunities for all parties to question them

allow the management representative the opportunity to ask questions of the employee and put the case for disciplinary action

ask questions of the employee and management representative to clarify

invite the employee and the management representative to each sum up and then call an adjournment to consider the decision.

inform the employee in writing of the results of the appeal and reasons for the decision, and make it clear that the decision of the Appeals Panel is final.

4. Develop, facilitate and monitor disciplinary policy, process and procedures.

4.1 The fact that the disciplinary policy and procedures adhere to legislation requirements is demonstrated.

The importance of your Disciplinary Code and your policies and procedures cannot be over emphasised.  For any employer to try and operate a business without having in place a Disciplinary Code and policies and procedures to regulate the behaviour of his employees on the workplace (and off the workplace for that matter) is criminal.

Such an employer deserves every problem that the employees throw at him.

There is no law against any employer making rules and regulations to control the behaviour of his employees –  rules and regulations stipulating what employees are permitted to do and what they are not permitted to do on or off the workplace.

In fact, the Code of Good Practice – Dismissal stipulates that employers should have such rules and regulations in place.

The employer does not need the approval of the employees before he can institute such rules and regulations, and nor does he need the approval of any trade union. He also does not need such approval to amend any existing rule or policy.

Provided that the rules are reasonable, lawful and fair, in terms of all the circumstances and the employer’s operational requirements, the employer can institute whatever rules he wishes to.

Employees have no right to tell any employer what they will and will not do during time that the employer is paying them for – or, for that matter, in some instances even during time that he is not paying them for.

There is another and very important aspect to having proper a disciplinary code and policies and procedures in place.

It can save your bacon at the CCMA!!!

Did you know that??

Whilst your policies and procedures may not be law – if they are fair, reasonable, and lawful, you will seldom if ever be found in procedural unfairness in a CCMA dispute by following your own procedure.

And conversely, if you do not follow your own policies, you very well probably will be found in procedural unfairness in a CCMA dispute.

Further advantages are that your rules and regulations will create consistency and certainty in the mind of the employee – he will know exactly where he stands, your job will be made for easier, and as the cherry on the top you will probably get far more productivity out of your employees.

Employers unite!!  Take charge and control the behaviour of your employees!!

Don’t let your employees manage you!!!

The introduction of fair, reasonable and lawful policies and procedures, and proper control of your employees, is as good as money in the bank!!

The purpose of a disciplinary code and procedures is to regulate standards of conduct and incapacity within an organisation.  The aim of discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace.

Employer’s obligation- The employer needs to ensure that all employees are aware of the rules and expected reasonable standards of behaviour for the workplace.

Employee’s obligation –The employee needs to ensure that he/she is familiar with the relevant disciplinary standards in the workplace and that he/she complies with the disciplinary code and procedure at the workplace.

Counselling vs Disciplinary Action:

Counselling – will be appropriate where the employee is not performing to a standard or is not aware of the rule regulating conduct and/or where the breach of the rule is relatively minor and can be condoned.

Disciplinary Action – will be appropriate where a breach of the rule cannot be condoned, or where counselling has failed to achieve the desired effect.

Types of Disciplinary Action:  

Verbal warning;

Written warning;

Final written warning;

Suspension without pay (for a limited period);

Demotion, as an alternative to dismissal only; and

Dismissal.

The law does not specify that employees should receive any specific number of warnings.  Dismissal could follow on the occasion of a first offence, in the case of serious misconduct.

Arbitration instead of Disciplinary Hearing 

In terms of recent amendments to the Labour Relations Act, employers and employees can agree that an arbitrator should be requested to conduct an enquiry in regard to the employee’s conduct or capacity. This permits parties, by agreement, to short circuit the statutory dispute resolution procedure and avoids much duplication in procedures

Such arbitrations allow for a single procedure that results in a final and binding arbitration award. The decision of the arbitrator will be subject only to review by the Labour Court.

The employer pays a fee for the arbitration service rendered. The amount of the fees has not yet been determined and will be subject of regulation.

 4.2  The fact that the disciplinary policy and procedures contain agreed timeframes for resolution of issues is demonstrated.

 Holding of disciplinary hearings should be within a certain time frame.

Disciplinary codes and policies used by employers often contain strict guidelines in regard to time periods for holding disciplinary hearings. Whilst employers are generally required to follow agreed time periods set out in their disciplinary codes, failure to do so does not necessarily render such disciplinary procedures unfair.

Consider the following example: A senior manager at a government institution is suspended due to an alleged fraud of R30 million whilst the matter is investigated. Chapter 7 of The Senior Management Services Handbook states that the employer must have a disciplinary hearing within 60 days of the employee being suspended. An investigation task team is put in place on day one of the employee’s suspension.

Should the investigation take more than 60 days, at which time no disciplinary hearing has been held, does it follow that the disciplinary hearing and the suspension should automatically fall away?

It follows therefore that an employee cannot rely on a strict interpretation of time periods contained in a disciplinary code to claim that any disciplinary hearing held thereafter would be procedurally unfair. Various factors varying from delays by the employee to lengthy investigations may mean that such a delay is inevitable or necessary. Provided the employer acts expeditiously and reasonably, employers are entitled to hold disciplinary hearings outside of the time limits provided for in its disciplinary codes.

Below follows an example of procedures with allocated timeframes:

Taken from www.medinurse.co.za

 The Disciplinary Interview

The disciplinary interview is part of the Code and a less formal procedure in

comparison with a disciplinary hearing. This process is more suited for less serious

offences where great emphasis is placed on corrective action. Although the

procedure is less formal, the same procedure, as in the case of a disciplinary

hearing, must still be followed. The interview is further the appropriate forum where

there is little or no dispute of facts

 

Step Action
1 At least 24 hours written notice, indicating the charge(s) and rights of an employee (see addendum 1), must be given to the employee in order to prepare himself / herself against the allegations
2 The parties in the disciplinary interview are the employee, his/her direct manager and a HR Representative
3 Complete records of these proceedings must also be kept and filed on the employee’s file
4 The manager, in conjunction with the HR Representative, can issue any disciplinary action up to a Written Warnings (6 months) during the interview.
5 In the event where, during the interview, a serious dispute exist and where no concrete evidence exist or where more information come to light which might justify a disciplinary hearing, the interview may be suspended and a disciplinary hearing scheduled in accordance with the Code.

 

Disciplinary hearing

It is important that disciplinary steps are taken as soon as possible after the alleged misconduct took place.

After a disciplinary offence has been transgressed, management may decide to suspend the services of the employee pending the disciplinary hearing

 

Step Action
1 In order for an employee to defend himself / herself, reasonable written notice must be given in respect of the charges brought against him / her.
2 The charges must be clearly formulated for the employee to understand and must relate to the specific incident
3 The charge must contain sufficient information to indicate to the employee the case he / she has to defend
4 The written notification, containing the charge(s) and rights of the employee (See Addendum 1), must be given to the employee at least 48 hours prior to

the hearing.

5 The employee has the right to be represented by a fellow employee or a shop steward, where Medical Human Resources has a valid and binding collective agreement with the representative trade union. No officials or office bearers of the trade union have the right to representation unless the employee is a shop steward of that specific trade union and where a valid and binding collective agreement exists.
6 Legal representation is not allowed in terms of this Code
7 Participants in the Disciplinary Hearing is as follows:

The Chairperson (appointed by management)

The Employee being disciplined

The Representative of the employee

The Complainant

HR Representative

Interpreter (if required)

Witnesses

Observer (with consent of both parties as part of training)

8 The Chairperson of the hearing should be objective and neutral in respect of both the employee and the complainant

The Chairperson should not be involved in the formulation of the disciplinary charges

The Chairperson bears the ultimately responsibility to ensure that the employee receives a fair hearing

The Chairperson should be someone from the management ranks or a person designated by them and in a position higher than the employee charged with the misconduct

The Chairperson must maintain order in the disciplinary hearing

The Chairperson is under no obligation to take any decision in respect of the finding and sanction immediately, but may take reasonable time to consider the decision.

The Chairperson should refrain from discussing the matter with anyone, except with the HR Representative and the IR Department.

9 Disciplinary action can lead to any one of the six disciplinary sanctions (see Annexure 2 for descriptions), depending on the merits of the case. The warnings are valid for a specified period and form part of the disciplinary record of an employee.

Verbal Warning (3 months)

Written Warning (6 months)

Final Written Warning (9 months)

Suspension without Pay (Employee must give consent)

Demotion (Employee must give consent)

Dismissal

10 Employees have the right to appeal in terms of the Appeal Code and the request for appeal must be submitted, on the prescribed form, within 3 days of the hearing outcome. The Complainant is not entitled to appeal against the sanction of the disciplinary hearing
11 Complete records must be kept of all disciplinary proceedings (informal and formal) against an employee. These records must be kept in the HR Department and on the employee’s file. The minutes of the proceedings should be as comprehensive as possible and parties to the disciplinary action must sign the minutes. The standard IR Documents (“Record of Disciplinary Outcome”) should be used for completing the administrative part of the proceedings in respect of the Disciplinary Sanctions
 4.3 The fact that the disciplinary policy and procedures are aligned to the type of business and culture of the organisation is demonstrated.

 What employers must do

If the owner of the business pays someone to work for the business, then the owner becomes an employer or boss, and the person working for him or she is an employee, or worker.

The employer and the employee will agree about what the employee must do, how many hours the employee must work, how much the employee will be paid, and so

  1. These are called the conditions of employment.

Conditions of employment

Because there are more people looking for jobs than there are jobs, employers are more powerful than employees – they can pay little and make employees agree to work long hours. The law tries to make the agreement fairer by saying that there are some things the employer must do and some things the employer is not allowed to do. The most important

aspects this section will look at are:

Sectoral determinations.

Basic Conditions of Employment Act. Labour Relations Act.

Sectoral determinations

The Wage Act says determines that the Minister of Labour can appoint a Wage Board. The Basic Conditions of Employment Act determines that the Minister can appoint an Employment Conditions Commission. The role of the Wage Board and Employment Conditions Commission is the same: to investigate the wages and conditions of

employment in a particular industry or sector.

The government wants to encourage businesses to grow and does not want to ruin a business because it has to pay very high wages. When the Board or Commission does its investigations, it looks at things like:

Whether employers will be able to run a successful business if they have to pay acertain wage to their employees.

The cost of living in the area where the businesses are run.

How much it costs employers to accommodate the employee, food and lodging.

The Wage Board or Employment Conditions Commission then recommends a minimum wage and conditions of work (such as maximum number of hours) to the Minister of Labour. If the Minister approves it, it is published in the government gazette as a wage determination or sectoral determination. All employers in that industry or sector have to carry it out.

An employer may be fined by the Department of Labour for not carrying out the sectoral determination.

If an employer feels that the business will be ruined if it pays the minimum wages or carries out the other conditions of employment published in the government gazette, the employer can apply to the Department of Labour to be exempt from (not have to carry out) the wage or sectoral determination. A group of employers who work in the same type of business in the same area can apply together.

If there is no wage determination or sectoral determination, then the Basic Conditions of

Employment Act applies.

Registers

The Wage Act also determines that employers must keep the following two registers:

Daily attendance registers where the employer must record whether the employees are at work.

Wage register where the employer must record when wages are paid to each employee and how much was paid.

The Basic Conditions of Employment Act

An employer may be fined by the Department of Labour if she or he does not carry out what the Basic Conditions of Employment Act says employers must do. The employer will first be sent a Compliance Order which is an instruction telling the employer to comply with the terms and conditions in the Act. If the employer does not carry out the

Compliance Order after it has been reviewed by the Director-General of the Department of Labour, he/she could be sent to prison for contempt of court.

The Labour Relations Act

When the owner of the business has employed someone to work for the business, she or he cannot dismiss the employee just because the owner does not want the employee to work for her or him anymore.

If an employer wants to dismiss an employee, it must be fair. Fairness is decided in two ways:

Substantive fairness

The employer must have a proper and fair reason to dismiss the employee. The Labour Relations Act states that an employer is allowed to dismiss an employee for 4 reasons:

Misconduct (the employee has done something seriously wrong).

Unacceptable performance (the employee does not do the job properly).

Incapacity (the employee cannot do the job properly due to illness or disability).

Retrenchment (the employer is cutting down on staff).

‘Substantive fairness’ weighs up whether the punishment fits the crime. Specific focus is on whether the rule that was broken was valid and necessary, whether the employee knew the rule, whether the employer has been consistent in applying the rule and finally what mitigating factors apply.

Procedural fairness

This can mean that

The employer must warn the employee that his or her work is bad or behaviour is not good, and that next time he or she will be fired.

The employee must understand the charges against him/her and be given enough time to prepare a defence against the charges.

The employer must give the employee a chance to give his or her side of the story before deciding to dismiss him or her.

The employee must be given a chance to be represented by a fellow-employee and given an opportunity to cross-examine evidence presented against him/her.

Misconduct

If the employee has done something wrong that is bad for the business, such as speaking badly to customers, or that is unacceptable conduct in the workplace, the employer must:

Give the employee informal advice if it is a minor mistake.

Try to help the employee correct and solve the problem (corrective discipline).

Take formal disciplinary action, which can become harsher as the employee repeats the misconduct (progressive discipline).

Give the employee warnings.

The final warning should be in writing. You can go straight to a final warning if it is very serious misconduct, such as assault or theft.

Keep a record of all disciplinary action taken.

Hold a formal investigation where the employee must get a chance to respond to the charges and can be represented by a co-worker or shop steward.

Give the employee notice or notice pay unless the misconduct is a serious breach of contract, like theft, assault and so on.

Where normal termination of employment takes place i.e. if an employee is paid at the end of every week, then the employer must give:

For the first six months of employment, one week’s notice

OR

Pay for one week if the employer wants the employee to stop working immediately.

After six months of service, and up to one year, the employer must give the employee two weeks notice. Once the employee has worked for more than one year, the employer must give him or her 4 weeks notice.

Incapacity (unacceptable performance)

Where the employee is unable to meet the performance standards due to no fault on his or her part.

If the employer feels that the employee is not doing his or her job properly, before the employer is allowed to dismiss the employee, the employer must be sure that:

The employee was told what was expected from him or her in the work, and was given proper training and guidance.

The employee’s work was properly evaluated against a fair standard known to him or her.

The employee was given a fair chance to improve and was evaluated over a reasonable time.

The employee is so bad at the job, which it is very bad for the business and so it would be fair to dismiss him or her.

The employee could not be transferred to an alternative position, even if it is a demotion.

The employer must:

Hear the employee’s side of the story and consider alternative positions.

Consider accommodating the employee in an alternative position if this is practical.

Give the employee notice or notice pay.

Incapacity (disability or ill health)

If the employee is off sick for a long time and the employer cannot manage without someone doing that job, then the employer can dismiss the employee and hire a new person. If an employee gets permanently sick or disabled, then the employer can dismiss the person if they cannot do their job any more, the job cannot be changed so that they can do it, and there is not another job for him or her.

The employer must:

Hear the employee’s side of the story.

Give the employee notice or notice pay.

Remember that the employee can claim UIF for 8 months.

Probation

It is a good idea for an employer to try out new employees before giving them the job permanently. This is called probation. When the employer and employee agree on the conditions of employment, the employer must tell the employee that they will first try out the relationship for 1, 2 or 3 months. The Labour Relations Act determines that the probation period must be reasonable for the kind of job the worker will do.

It is important to write a letter to the employee saying:

How long the employee will be on probation for

What the notice period will be while on probation.

During the first six months it must be at least I week.

How much the employer will pay every week or month.

Exactly what the employee’s job is.

The name, address, telephone number of the company and all details of the job.

The employer and the employee must each have a copy. The employer and the employee must both sign the letter.

Retrenchment

The law says that it is fair for an employer to dismiss (retrench) an employee if the employer:

Needs to cut down on staff for economic reasons.

Example: Zoliswa makes clothes and employs 3 seamstresses. A PEP store opens down the road and many of Zoliswa’s customers now buy their clothes at PEP stores. If Zoliswa carries on with 3 seamstresses, her business will lose too much money. So she decides to dismiss one of the seamstresses. The law says that she should dismiss the employee who was employed last (the last in first out rule), unless specific ‘skills’ are necessary for the job.

Is changing the way the business operates, and the employee does not have the right skills.

Example: Zoliswa decides to change her business. Instead of sewing clothes, the business will cut out patterns for a bigger business. None of the employees know how to cut patterns and it will take too long to teach them. Zoliswa is allowed to retrench the employees and employ people who know how to cut out patterns.

Upgrades technology.

Example: Zoliswa buys 2 electric machines. Now 2 people can do the work of 3. She is allowed to dismiss the employee who she employed last.

The employer must follow certain steps before retrenching employees.

If the employer retrenches an employee, the employer must pay the employee at least one week’s wages for every year the employee has worked for the business. This is called severance pay.

The employer does not have to pay severance pay if the employer offers the employee another job that is nearly the same and the employee refuses to take it. If the employee has a good reason for not taking the new job, the employer must pay the severance pay.

There are special circumstances when an employer can apply to the Department of

Labour not to pay retrenchment money to employees.

If the employer sells the business as a going concern, the new owner must employ

the old owner’s employees and their service must come across to the new owner.

Activity 5

Identify 8 things that an employer must do when a staff member has done something wrong

 4.4 The fact that effective communication structures and media are utilised to communicate the disciplinary policy and procedures to all relevant stakeholders is demonstrated.

How should we introduce policies?

Assess/audit what is already exists, both formally and informally.

Research and benchmark against other businesses’ practice, particularly in the same sector or location.

Consult with employees and unions.

Establish working groups to develop policy.

Set realistic timescales.

Pilot draft policies.

Communicate policies to employees, e.g. through briefings and/or workshops for staff and managers.

Give specific guidance to managers

Introduce the policies as part of the induction process.

Have a continuous review process.

The culture of the business and the complexity of the policies will influence how a policy is introduced. For example, when it comes to communication, hard copies could be given to employees or put on notice boards, or ‘soft‘ copies circulated by email or placed on an intranet. The communication process should be tailored to the business.

Activity 6

Thinking of the nature of your business, how will you inform your employees about the disciplinary policy and procedure?  Write down a detailed description of the communication route you will follow and also include a diagram to illustrate your communication process.

 

4.5     The fact that appropriate and effective training techniques are established to ensure that the disciplinary policy and procedure are easily accessible to all stakeholders is demonstrated.

 

Incorporation is the last step in the process of human resources provision.  The new employee must be made to feel part of the new work environment and work group as soon as possible.  The sooner this happens, the sooner he or she will be able to make a productive contribution to the enterprise.

The incorporation programme consists of two components, an orientation programme and an induction programme.

 

Definitions Orientation is he process in which the new employee is supplied with information about the enterprise and his or her place in it.

 

Induction is the communication of information specific to the department and position that enables the employee to function daily with self-confidence

 

Orientation therefore has more to do with the enterprise as a whole while induction is specific to the department and position.  Orientation programmes are generally undertaken by the human resources department while induction programmes are usually the supervisor’s responsibility.

A typical orientation programme includes:

A welcoming address

An overview of the enterprise

An overview of general policies and procedures, the management philosophy of top management and existing channels of communication which are available to employees

An explanation of the salary package and benefits

Security and safety measures

Provisions for labour relations

A physical or a video-recorded  tour of the enterprise

Introduction to key persons

Because the new employee may be totally overwhelmed by all the information, it is desirable to supplement the oral presentations with a manual that can be consulted later.  However a manual on its own is not sufficient because in practice manuals are seldom read.

It is necessary to measure the success of an incorporation programme.  This is done by means of follow-up and evaluation.

Follow-up and evaluation are undertaken by the human resource department in conjunction with the supervisor.  It cannot simply be assumed that all is well with the new employee because he or she does not ask questions.  Three feedback methods can be used:

A questionnaire developed by the human resources department that new employees complete anonymously.

An intensive interview with new employees

A group discussion session with new employees who participate in discussions and are required to answer questions.

Follow-up usually takes place three to six months after the employee has started the new job.

The human resource department should re-evaluate the total incorporation programme at least once a year.  This is usually done by means of a questionnaire to establish whether the programme still meets the needs of the enterprise and of new

employees.  Problems should be rectified as soon as possible.

Incorporation is the final step in human resources provision, but also plays an important role in human resources maintenance.  Experience has shown that if there is no incorporation programme or if incorporation is poor, new employees experience problems for considerable time during the adjustment period.  When an employee decides that adjustment is impossible, he or she waits to receive a bonus and then resigns.

 4.6  The fact that timeframes are established to ensure regular review of the effectiveness of the disciplinary policy and procedures is demonstrated.

 

Why you should review policies

The main purposes of policy review are:

To ensure that policies reflect the mission of the business, as set forth by management

– To ensure that policies are in conformance with current legal standards and requirements,; 

– To ensure that policies are as consistent as possible with actual practices in the business; 

– To ensure that the language of the policies is clear and understandable, so that staff members can properly use the policies as a tool to direct them in the performance of their duties.

 

When to review policies

In general, policies should be – at least minimally – reviewed at the following times:

When they are initially drafted: Usually, it takes several drafts before a new policy is right.

On a routine schedule: Policies and procedures are never static. Standards change and ideas about best practices change and evolve. Thus, it is important to have a plan in place for routine review of some or all policies and procedures. For example, many companies routinely review some or all policies annually or bi-annually.

When there has been a significant change to an applicable legal standard, such as a statute, administrative rule, and/or court decision; or a change to applicable accreditation standards: It is important to stay aware of such changes and to revise policies, when necessary, to reflect such changes.

When there has been a significant change in ideas as to best practices or procedures in regard to an issue: As noted, ideas about the best ways to do can change and evolve.

– Whenever there has been a significant change in the ways things are done by management and/or line staff members, that change should be incorporated in the written policy on that issue,

Following critical incidents: Following any critical incident, there should be a critical incident review (sometimes called administrative review), the key purpose of which is to discuss what happened during the incident and to see what, if anything, can be done to improve future performance or response in such incidents. An element of such review should always be to go over the policy or policies relevant to the incident, and to see if anything in them should be changed so as to improve future performance or response.

 

Which policies to review

Although it is important to routinely review all written policies and procedures, it probably makes sense to give certain issues special priority. This might include policies on high-risk and/or critical task issues—those that have to do with significant safety and/or security issues or those that may have a high liability risk management element.

 

For example, it might make sense to be sure to annually (at least) review policies and procedures on emergency response issues, such as response to fires or weather-related emergencies, or to riots or other disturbance emergencies, and so on.. .

 

Other policy issues should be reviewed annually, at a minimum, because they are significant in terms of legal liability risk. Such focus might also include First Amendment issues, such as religious practices and grievance procedures.

 

Who to involve in policy reviews

As noted, it is important to carefully plan for review of policies and procedures. Part of such planning involves deciding who will be involved in the policy review process. This decision depends on the size of the company and number of personnel available for this task, as well as management philosophy regarding use of personnel.

 

It is important that supervisors should be involved because they are the ones who have primary responsibility for being sure that line staff members properly follow the policies.

 

Another benefit of proactively involving supervisors in the policy review process is that doing so is more likely to result in their supporting and “buying into” policies and procedures. They are more likely to feel that the policies are theirs too, not just edicts delivered by management from on high.

 

Focus of Policy Reviews

It is important to set forth clear and specific expectations for policy reviews—that is, what reviewers are to look for and provide feedback about. For example, following are a few such questions:

Does this policy continue to reflect our mission?

– Does the policy continue to reflect legal standards that affect our operation, as you understand these? 

– Is what the policy says consistent with our actual current practices? 

– Does the policy and procedure(s) indicate the best actual practices—that is, ways of doing things?

– Is the language of the policy sufficiently clear and understandable?

 

The answers to these questions can be valuable. However, it is then important to ask reviewers to indicate specific suggestions as to improvement, if they have such suggestions. The message should be: Don’t just tell me how this policy is deficient… tell me how it can be better.

 

One option is ask individual staff members to review policies and give their feedback. Another option is to set up committees or task groups to do so. An advantage of this option is that it allows for discussion – perhaps debate – and, hopefully, consensus among staff members as to how policies could be improved. Ideally, such committees or task groups should include supervisors.

 

Summary

As with all aspects of policy development and implementation, management has the final say-so as to the contents of policies. Policies are a management prerogative.

 

However, good managers will (or should) always try to find ways to involve staff members — including supervisors — in the process, including during reviews of policies, so as to get good ideas and to best secure the support of staff members for the policies.

4.7 The fact that the disciplinary policy and procedures are amended in accordance with review findings is demonstrated.
 Activity 7

Ask your employer/business manager for a copy of the disciplinary policy.  In your groups review the policy, write down the suggestions and make the changes to the policy accordingly.  Highlight changes made to the policy.  Hand in both policies for assessment

5. Institute performance evaluation committees and manage the performance evaluation process.

                          

Range:  Performance evaluation policy and procedures, performance evaluation moderating committees, feedback

 5.1    The active involvement in the application of the performance evaluation process is demonstrated.

 Performance appraisal establishes how well or how poorly the employee has performed and to what extent the job requirements have been met.  It is these aspects that finally determine the employee’s position on the salary scale.  The performance appraisal is based on the performance standards as set out in the job description of the job analysis.  A variety of performance appraisal techniques are used in practice .(more details on the performance appraisal techniques are available in Gerber, Nel & Van Dyk, 1995: 216 – 224).  Whatever technique is used, it is essential that employees receive feedback on the results so that they know where they are performing well or poorly.

 

Reaping the Benefits of Performance Appraisals

Creating and implementing a structured performance appraisal process is by no means a modest challenge. For one thing, performance appraisals invariably create additional work for supervisors. The process also puts pressure on employees by forcing everyone to establish specific goals and identify the behaviors necessary to achieve those goals, which some may view in the short term as simply “busy work.” What’s more, the very nature of appraisal systems puts both employees and supervisors into situations that most people find uncomfortable. Being, in effect, “graded” makes many employees feel as though they’re back in school, for example. And most managers, even those who’ve been involved with an evaluation process for many years, find it difficult to be both candid and constructive when they’re conducting an appraisal session that involves negative feedback.

Why, then, should you put in the time and effort needed to create and implement this process? The answer, simply put, is that the long-term benefits of an effectively structured and administered performance appraisal process far outweigh the time and effort the process requires. Here’s what a welldesigned, well-implemented performance appraisal system can do for your company:

Creates criteria for determining how well employees are truly performing – and, to that end, makes it clear how their job descriptions and responsibilities fit in with company and departmental priorities

Provides an objective – and legally defensible – basis for key human resources decisions, including merit pay increases, promotions, and job responsibilities

Verifies that reward mechanisms are logically tied to outstanding performance (see Chapter 10)

Motivates employees to improve their job performance  Enhances the impact of the coaching that is already taking place between employees and their managers

Establishes a reasonably uniform set of performance standards that are in sync with company values

Confirms that employees possess the skills or attributes needed to successfully fulfill a particular job  Irons out difficulties in the supervisor-employee relationship

Gives underperforming employees the guidance that can lead to better performance

Keeps employees focused on business goals and objectives

Helps employees clarify career goals

Validates hiring strategies and practices

Reinforces company values

Assesses training and staff development needs

Motivates employees to upgrade their skills and job knowledge so that they can make a more meaningful contribution to your company’s success

Deciding on a Performance Appraisal System

The first step you need to take after you’ve decided either to introduce a performance appraisal system in your company or to change your current one is determining which kind of system is best for your company. All performance appraisal systems are driven by the same objective: to establish a systematic way of evaluating performance, providing constructive feedback, and enabling employees to continually improve their performance.

The basic ingredients in all systems are pretty much the same: setting performance criteria, developing tracking and documenting procedures, determining which areas should be measured quantitatively, and deciding how the information is to be communicated to employees. Where the different methods vary is in the following areas:

The degree to which employees are involved in establishing performance evaluation criteria

How employee performance is tracked and documented

How performance is rated and how it’s aligned with corporate priorities, objectives, and goals

The specific types of appraisal tools used – in some cases, for example, certain approaches are more appropriate for evaluating managers and professionals than other employees

The amount of time and effort required to implement the process

How the results of the appraisal are integrated into other management or HR functions

How the actual appraisal session is conducted

The following section offers a brief description of performance appraisal methods most commonly used today.

Goal-setting, or management by objectives (MBO)

First created by influential business thinker Peter Drucker in 1954, management by objectives (MBO) is still an extremely popular appraisal system because of its focus on results and the activities and skills that truly define an employee’s job. Even more recent forms of appraisal that require reciprocal feedback, such as the increasingly popular multi-rater assessment I describe later in this section, are in large part based on the principles of MBO.

In a typical MBO scenario, an employee and manager sit down together at the start of an appraisal period and formulate a set of statements that represent specific job goals, targets, or deliverables.

What makes MBO so powerful is its direct link to organizational objectives and priorities. In the case of MBO, goals, targets, and deliverables should be as specific and measurable as possible. For example, instead of “improve customer service” (too vague), try something like “reduce the number of customer complaints by 5 percent.” And instead of “increase number of sales calls” (too vague), go with “increase the number of sales calls by 5 percent without changing current criteria for prospects.”

This list of targets becomes the basis for an action plan that spells out what steps need to be taken to achieve each goal. At a later date – six months or a year later – the employee and the manager sit down again and measure employee performance on the basis of how many of those goals were met.

Advantages:

Is familiar: MBO has been used for decades and provides a sharp focus for evaluating employee performance

Draws the employee into the appraisal process

Can be easily integrated into companywide performance-improvement initiatives

Gives employee a blueprint for successful performance

Emphasizes action and results

Downsides:

Takes time and involves considerable paperwork

Works effectively only if supervisors are trained in the process

Can lack sufficient specificity of goals

Doesn’t work well for employees who have little discretion over how their jobs are performed

 Essay appraisals

Though less popular than it was a few years ago, the essay approach still has merit. It can be quite useful for a supervisor to periodically compose statements that describe an employee’s performance during the appraisal period. The statements are usually written on standard forms, and they can be as general or as specific as you want. A supervisor may describe an employee’s performance in terms of “his or her ability to relate to other work-team members.” These written statements can either be forwarded to the HR department or can be used as one element in an appraisal session. Any written evaluation also needs to include more measurable evaluation tools, such as rating scales applied to specific objectives, tasks, and goals.

 Advantages:

Is easy to administer

Lends itself to most supervisory and professional functions

Forces supervisors to give serious thought to worker performance

Downsides:

Can vary in its effectiveness according to the writing skills of the evaluator

Can vary in length and content, making appraisals from different supervisors difficult to compare

Promote highly subjective perceptions

 Critical incidents reporting

The critical incidents method of performance appraisal is built around a list of specific behaviors, generally known as critical behaviors, that are deemed necessary to perform a particular job competently. Managers, the HR department, or outside consultants can draw up the list. Performance evaluators use a critical incident report to record actual incidents of behavior that illustrate when employees either carried out or didn’t carry out these behaviors. You can use these logs to document a wide variety of job behaviors, such as interpersonal skills, initiative, and leadership ability.

 Advantages:

Records employee performance as it happens

Always links employee behavior to job performance

Provides documented record of behaviors over time

Identifies the most important dimensions of a job

Offers more insight into job descriptions and core competencies

 Downsides:

Requires disciplined and regular attention

Can often compromise objectivity of recorded incidents because of the evaluator’s emotional state when the incident is recorded

Depends on a clear definition of critical behaviors

Job rating checklist

The job rating checklist method of performance appraisal is the simplest method to use and lends itself to a variety of approaches. To implement this approach, you supply each evaluator with a prepared list of statements or questions that relate to specific aspects of job performance. The questions typically require the evaluator to write a simple “yes” or “no” answer or to record a number (or some other notation) that indicates which statement applies to a particular employee’s performance. More often than not, the responsibility for developing the list lies with the HR department.

A more sophisticated variation to this method is to establish a weighted rating system in which a number is used to reflect the relative importance of each criterion being evaluated. The weighted variation presents a clearer picture of how employee strengths and weaknesses measure up against the priorities of the job.

Advantages:

Minimizes the amount of paperwork for the evaluator

Can customize lists in any number of ways

Can purchase lists commercially

Downsides:

Unsuited to jobs with evolving or frequently changing requirements

Offers only a sketchy outline of job performance

Doesn’t encourage evaluators to focus on “improvement” strategies

Behaviorally anchored rating scale (BARS)

Behaviorally anchored rating scale (BARS) systems are designed to emphasize the behavior, traits, and skills needed to successfully perform a job. A typical BARS form has two columns. The left column has a rating scale, usually in stages from Very Poor to Excellent. The right column contains behavioral anchors that are the reflections of those ratings.

If the scale were being used, for example, to evaluate a telephone order taker, the statement in one column may read “1-Very Poor,” and the statement in the right column may read, “Occasionally rude or abrupt to customer” or “Makes frequent mistakes on order form.”

 

Advantages:

Reduces the potential for biased responses

Focuses on specific, observable behaviors

Provides specific and standardized comments on job performance

 Downsides:

Can be time consuming and complicated to develop

Depends on accuracy and appropriateness of “anchor statements”

Must be updated as job requirements change

Impractical for jobs with frequently changing requirements

  

Forced choice

Forced-choice methods generally come in two forms: paired statements and forced ranking. In the paired statements method, evaluators are presented with two statements and must check the one that best describes the employee; it’s either one or the other. In the forced ranking method, a number of options are listed, allowing the evaluator to select a description that may fall somewhere in between the two extremes.

The following example illustrates how each version may be used to cover the same aspect of job performance for a field service representative.

 

Paired statements:

____ Provides sufficient detail when filling out trip reports

____ Doesn’t provide sufficient detail when filling out trip reports

 

Forced ranking:

____ Provides sufficient detail when filling out trip reports

____ Exceptional

____ Above average

____ Average

____ Needs improvement

____ Unsatisfactory

 

Advantages:

Minimizes bias

Is somewhat more objective than other ranking methods

 

Downsides:

Requires skill and professional training to develop

Must be redesigned when job requirements change

Doesn’t lend itself to behaviors that are difficult to quantify

 

Ranking methods

Ranking methods compare employees in a group to one another. All involve an evaluator who asks managers to rank employees from the “best” to the “worst” with respect to specific job performance criteria. The three most common variations of this method are as follows:

Straight ranking: Employees are simply listed in order of ranking.
Forced comparison: Every employee is paired with every other employee in the group, and in each case, the manager identifies the better of the two employees in any pairing. The employees are ranked by the number of times they’re identified as the best.
Forced distribution: The employees are ranked along a standard statistical distribution, the so-called Bell Curve.

Advantages:

Can be helpful in presenting an overall picture of employee strengths and weaknesses throughout the company

Requires little training

Downsides:

Is the most subjective of appraisal methods

Provides little information on training and development needs

Focuses on individuals rather than job outcomes or behaviors

Forces raters to evaluate employees in terms of other employees

One of the ranking methods, forced distribution, is suitable only for large groups to be statistically valid, typically thousands of employees.

 

Multi-rater assessments

Multi-rater assessments are also called 360-degree assessment. The employee’s supervisors, coworkers, subordinates, and, in some cases, customers are asked to complete detailed questionnaires on the employee. The employee completes the same questionnaire. The results are tabulated, and the employee then compares her assessment with the other results.

 Advantages:

Draws assessments from a wide variety of sources

Gives maximum feedback to employee

 Downsides:

Need to have the questionnaires professionally developed

Relies on people outside the employee’s immediate work circle, which may cause resentment

 5.2   Involvement in the training and communication of the performance evaluation process is demonstrated.

Most newcomers in a business are not really prepared to perform their new tasks well.  Someone who holds a technical or professional qualification still needs initial orientation regarding the policies, procedures and practices of the organisation.  The training process, therefore begins with the orientation programme.

The aims of training and development

The concepts of training and development are often taken to mean the same thing, yet they refer to two different activities within the business.

 

Training is the systematic process by which the employee acquires knowledge, skills, aptitudes and information necessary to achieve the objectives of the business.  The aim of training is to influence and change employees working habits and levels of performance in such a way that they will become more productive.  Training is, therefore, directed at tasks which are in line with the objectives of the business.
Development is the process whereby managers or potential managers acquire the necessary experience management skills and aptitudes to function successfully as mangers.  This process prepares the individual for further career development and promotion.  An effective manager in any business abreast of the latest developments in the areas of technology, economics, politics and management practices.

 

The basic objectives of training and development are:

To orientate new employees with regard to their tasks

To improve performance and increase productivity

To maintain a performance level in spite of changes in the work itself or in technology

To prepare the employee for promotion

Before any training can be undertaken, you should first determine whether there is really a need for training.  An employee may be experiencing personal problems and his/her work may suffer as a result.  A supervisor may not know this and may mistakenly identify the problem as lack of knowledge or skills.  Training costs time and money and you should therefore ensure that it is not undertaken unnecessarily.

Drawing up a training programme

When you draw up a training programme, the following steps can be used:

Determine training needs

Before training can commence, a needs assessment should be done.  These needs are related to the technical, administrative, management as well as other skills which employees may require to perform their duties productively.  It is the responsibility of the direct supervisor to identify these needs.

There are different ways to identify the needs such as:

The employee is asked to say whether he/she feels unqualified to carry out a task effectively due to a lack of knowledge and/or skills.  Although this is not a scientific method to determine training needs and does not provide for long-term needs, it is a practical method which can be used profitably in combination with other methods.

Interviews, where the human resource manager conducts interviews with supervisors, key people and employees in the business to ascertain whether any training needs exist.

Questionnaire: this is a scientific method of ascertaining training needs and results obtained from it are usually comprehensive and based on fact.

Management by objectives:  this technique provides ongoing information regarding the work and progress of the employee.  You should, therefore, be able to see immediately whther an employee needs training.

 

The above are active techniques to determine whther there is a need for training.  Sometimes, circumstances or problems arising in a business may indicate training needs.  Specific problem areas which need to be investigated include low productivity, high costs, poor quality, high wastage, grievances, a high staff turnover, poor discipline, rule-breaking, a high absenteeism rate and standards that are not being achieved

Establish the objectives for the training programme (including the type of training)

 Write down what you wish to achieve with the training.  Be specific and use standards so that your objectives are measurable.  The difference between what the worker is supposed to do (see job description) and what he or she can actually do may also be used as a basis for the training programme.  Do the employees need basic training, such as training in the use of the telephone or more specific training, such as training to enable them to use a new computer programme?

Determine suitable training methods

Decide whether you will make use of lectures, in service training, videos, case studies or other methods.  Are you going to instruct, facilitate or both?  If the training know-how is already in the business, you can do it internally, otherwise make use of external training specialists.

Present the training or end employees for the training

Decide whether it is best to carry out the training on-site, or to send your employees to another venue

Evaluate the training

Determine whether the set objectives have been achieved.  If not, you will have to reassess the trainer, method, objectives and standards (or all of these).

Human resource management is not only getting people to work for a business and training them to do the work well, but keeping them motivated and working productively on a continuous basis.

 5.3 The ability to evaluate each employee according to procedures is demonstrated.
Activity 7

 

Draw up a procedure for evaluating your staff members.  This procedure must be aligned with your company policies and procedures

5.4 The ability to organise moderating committee if according to organisation policy is demonstrated. 

 Definition of a moderating committee:  A committee of members who ensure fair and objective assessment of an employee’s performance in the annual assessment.

Moderating Committee shall:

ensure that there is fair and objective assessment of all employees’ performance.

Duties and powers of the Moderating Committee shall be as follows:

To moderate on all employees’ assessment reports forwarded to it;

To monitor compliance with the policy in assessing employees; and

To provide supervisors with recommendations relating to assessment reports presented to it.

Activity 8

Put together a moderating committee for your business.  Give the position each members fills and explain why you think it is important to have him/her on the committee.

5.5  The ability to ensure that all employees receive the necessary feedback to ensure transparency is demonstrated.

Performance review meetings are an integral part of the monitoring process. These reviews must take place as often as is practical and/or required by circumstances. The reviews are necessary to motivate and to reveal to the employee areas that need improvement.

The supervisor should use all opportunities to discuss the employee’s performance, including component meetings, report backs, and informal discussions.  An employee’s supervisor shall monitor the employee’s performance on a continuous basis and give him/her feedback on his/her performance at least four times a year – orally, if the employee’s performance is satisfactory (fully effective and above); and in writing if unsatisfactory (not fully effective and below).  Should such reviews indicate unsatisfactory performance it is incumbent on the Supervisor to implement corrective measures with a view to improving performance.

Should the supervisor, as a result of the reviews, or at any time during the performance cycle, be of the opinion that the employee’s performance is markedly below what is required, the supervisor must complete a full and formal assessment, complete all documentation and have the document signed by the employee. This ensures that the employee is left in no doubt that what she or he has been producing as work outputs is not acceptable and that continuation in this poor standard of performance will affect service delivery and is sure to result in a low performance assessment at the end of the cycle, with its resultant consequences.

The supervisor should prepare by –

reviewing the objectives and targets for the relevant period and for the next period;

reviewing support needed and drafting training and development needs;

seeking appropriate feedback from relevant role-players to support the process;

reviewing and updating all relevant documentation, and

identifying internal/external factors affecting the jobholder’s performance.

The jobholder should prepare by –

reviewing the objectives and targets for the relevant period and for the next period;

collecting supporting facts on performance delivered;

identifying factors that affected his/her performance;

reflecting on the feedback to be given to the supervisor.

The review should be a one to one discussion between the supervisor and the employee. The content and outcomes of the quarterly, half- yearly review and the end of year assessment should be signed by the parties concerned. At all levels the periodic reviews must also include a discussion on the employee’s development plan requirements. The final assessment discussion must take place at the end of the performance cycle and coincide with the end of the financial year, i.e. March of each year.

The assessment discussion should enable –

An opportunity for the employee to assess his/her own performance and its contribution to organisational goals and to identify areas of improvement;

An opportunity for the supervisor to provide formal feedback on performance over the year and to identify ways of improving what was achieved;

An opportunity for the employee to contribute to, and respond to comments regarding his/her performance and identify issues beyond his/her control that limit the achievement of results;

An open discussion between the employee and his/her supervisor in which achievements can be fully recognised and ideas for problem solving agreed; Agreement on an overall assessment score reflecting judgement on the level of achieve ment attained in terms of the performance agreement, and

An opportunity for the supervisor and the employee to agree on areas of personal

 

6.  Participate in the implementation of applicable labour legislation.

 Range:  Employment Equity Act, BCEA, LRA, SDA, SDL, OHSACT, COIDA

 6.1 Labour legislation according to workplace procedures are communicated to all levels and implemented

Activity 9

Draw up a complete training/orientation programme for all your employees.  The objective of the training will be to equip them with the necessary knowledge on labour legislation.  Your plan must stipulate the venue of training, time frames etc.

 6.2    Employees and managers are encouraged to develop their skills.

A skill is “a tool“ that enables an employee to do his/her job effectively and efficiently.

A skilled (fully trained) employee has all of the tools to do the job and an unskilled or

untrained employee lacks the necessary tools.

Having the right skills is an absolute necessity.

The responsibility for skills development is shared by the employee and management.

Management provides and employees seek training and opportunity for skillsdevelopment.

The type and nature of skills that are required to do the work are identified.

Once known, management and the employee work together to determine what

specific training and experience will enable the employee to develop the skills.

Skill Sets and Assessment Process serve as a starting point in determining training and developmental needs.

The Skill Sets describe the various skills that are required of positions in thebroadband.

The Assessment Process determines if the employee is below, on or above level with respect to each skill area.

This information helps the employee and management to identify skill development needs and is the first step in developing a skills development plan.

In advance of the above, the manager should identify the specific training and/or experience that is needed for each skill area. For example, the manager should determine the type and nature of training and/or experience that will enable analysts

in his/her section to develop the full skill level for verbal communication. It may include recommended classroom instruction and/or on-the-job experience making presentations to departmental management.

The manager explores the various alternatives for skill development. This means that the manager should consult with training officers, other managers, training literature, etc. He/she should be a student of his/her profession constantly looking at ways to improve and develop his/her own skills as well as ways to improve the skills of his/her staff.

The employee has a responsibility to learn the job. He/she should work with his/her manager to identify the training and/or experience that is needed to develop the necessary skills to do the job. If the employee is interested in advancement, he/she should try to determine what skills are necessary to qualify for advancement. He/she should consult with his/her manager as well as others.

The manager and employee should meet to discuss the training needs and should develop a training or skill development plan.

The manager and employee should go over the assessment and discuss the skills development needs that are essential for performance of current job duties.

They should discuss career goals and address career development.

They should prioritise skills development needs with those that are the most immediate and essential for the current job highest on the list.

The manager and employee then should discuss various training and/or experience that would address the skill development needs.

Together they should discuss what resources are available for training and they should consider the cost/benefit of the various training alternatives.

Managers and employees should also consider the value of rotation to the employee and business when exploring and assessing various training and experience development alternatives

6.3    The ability to motivate employees to adhere to safety regulations is demonstrated.

 Health & Safety in a Small Business

Whether you have two employees or twenty, Health & Safety issues in the workplace are very important to small businesses and not just to the large companies. You may think that the concern of Health & Safety has been covered to an appropriate level in your business but there are still things that many people are unaware of.

Why is Health & Safety Important to Small Businesses?

Your employees have rights to work in safe conditions with a regard to personal health and it is therefore important that you offer them this sort of working environment: failing to do so can result in personal injury, disease or general poor health.

Such occurrences can result in legal action being taking against your business (or you personally) which could damage the business financially and its reputation (including you – as an employer).

The saying of “prevention is better than cure“ fits the demandl perfectly for this area. A disaster that occurs through the lack of Health & Safety precautions could potentially cause business failure for many small businesses. This not only concerns the damage of assets, but also the health of your staff (and yourself) who each may be a key player in the business. It is therefore important that you introduce Health & Safety precautions to avoid such disasters instead of dealing with them when they happen.

Implementing Health & Safety will also help build inter-working-relations with your employees as they have the responsibility of looking after each other by knowing what is safe and what is not. Further, they will have the knowledge of how to deal with situations should they occur: this will range from putting out a fire to timely first aid.

Your Responsibilities as an Employer

The Health & Safety at Work Act, 1974 states that it is your responsibility to protect the health, safety and welfare of yourself, your employees, and people that may be affected by what you do. Such people include:

.  Visitors to your workplace

.  The public that use your product or service

.  Neighbours

In other words, you need to control the risks that arise in the workplace and from the work itself that may result in poor health or injury.

It is therefore your responsibility to acknowledge a risk assessment that may be completed by other people in the business, but will have your approval. If you employ five or more people, then you need to have a written Health & Safety policy which should be brought to the attention of all employees.

For a small business manager you are advised to be pro-active when it comes down to Health & Safety by regularly checking the facilities yourself for potential risks that may not have been picked up by anyone else (or that you never knew existed yourself). By doing so, you are showing responsibility as a manager for regarding Health & Safety as a serious issue – as you should.

It is your responsibility to make sure that your employees are fully aware of Health & Safety in the workplace through regular training sessions to bring them up to speed. You should also keep them updated about any changes that will affect Health & Safety, for example, new power points or new office equipment. You can use a third party such as a safety consultant to deliver the training, but it is still your responsibility to make sure that it is done.

One of your most important responsibilities is to provide all the necessary equipment and facilities that are required for first aid

should an employee become injured or ill at work. This will include a first aid box in which the location should be known to everyone.

Further, you should provide equipment to deal with hazards such as fire, chemical spills, broken glass, or anything that is specific to your business. Likewise, it is important that you provide safety equipment that will reduce the risk of injury or illness, say protective eye goggles or simply mouse pads that are specifically designed to reduce the risk of repetitive strain injury

Important Health & Safety Documents and Notices

  1. Health & Safety Poster:

This poster is something that should be displayed in the workplace and should

include:

.The details of the employees’ Health & Safety representative (if any)

.The details of the management of Health & Safety in the workplace (this may be yourself or someone who is trained and knowledgeable in the area of Health & Safety)

.The contact details of the Health & Safety authority of your business

 

  1. Health & Safety Policy:

This is only a legal requirement if you employ more than five people and should outline the following:

. The responsibilities of those people using a certain area of the premises

. The Health & Safety risks that arise from the work activities and how they should be controlled

. The name(s) of the employees’ representative(s) concerning Health & Safety

. Who is responsible for providing safe equipment and maintaining its safety

. The location of the Health & Safety poster

. Who is responsible for informing and training employees for Health & Safety

. Location of first aid equipment and the name of the person(s) who is responsible for recording accidents

. Who is responsible for monitoring Health & Safety

. Who is responsible for carrying out risk assessments and making sure that it is always valid and put into use

 

  1. Warnings and Information

 

This will be issued by the fire authority or fire brigade and declares that your workplace can be easily and safely evacuated in the event of fire. The Fire Precautions Act, 1971 lists and details premises that require such a license and includes ’premises being used for work’. The license will also give procedures to follow in case of fire specific to your premises.

It is important that you have displayed somewhere in the workplace a copy of the safety regulations of the premises. You should also have a poster displaying the Health & Safety Law so that your employees can be aware of regulations.

It is advised that you put up warning signs that illustrate a hazard so that people will know to take precautions when using equipment or entering a certain place in the premises. For example, a sign that warns people they are using electrical equipment so that they are cautious when using it.  See the images on the pages for examples.

  1. Licences and Certificates:

Any licenses and certificates that you have should be displayed and the two most common essentials are:

a) Means of Escape in case of Fire

b) Certificate of Employer’s Liability Insurance

If you employ anyone, then it is compulsory that you have one of these as stated by the Employers’ Liability Act, 1969. It is a certificate to say that you have insurance cover for the injury or poor health of employees caused by incidents at work.

The licenses and certificates that you need will be determined by the industry you are in, but some will be compulsory to all businesses (like those above). You should therefore contact a solicitor to find out what licenses and certificates you need specific for the Health & Safety law requirements of your business.

  1. Equipment Examination Records

From time to time, any equipment that you have in the workplace may need to be examined by competent people to confirm that the equipment is safe to use. Reports that are generated from the examination should be kept on file so that they can be referred to at any time. If you perform routine checks on equipment yourself (or by anybody else in the business), you should also make records.

Risk Assessments

A risk assessment is only a legal requirement if you employ more than five people but it is still a good idea to do one if you employ below this number. A risk assessment is simply a careful analysis of those things that could potentially harm people in the workplace and also the hazards that the work itself may possess. From this, you can assess whether you have done enough to eliminate or reduce the individual hazards as much as possible or if it is something that needs to be dealt with. The main aim of a risk assessment is to prevent people from being injured or falling ill.

The following is an outline of how you may approach a risk assessment:

  • Identify the hazards For example, tripping, flammable equipment, electrical equipment, fumes, poor lighting, computer related hazards,working from heights i.e. ladders, etc.
  • Recognize who may be harmed by This is not a list of names, just the people the hazard and in what way they would involved, say, office staff, operators, etc.be harmed.

 

  1. Assess the level of the risk and Do they meet the legal requirements for decide if you feel the existing safety’ If not, you should propose precautions taken (if any) are enough actions that need to be taken to make to reduce or eliminate the hazard              them safe and list them with respect to priority to other actions. Do not look at cost as a constraint: many issues can be solved with cost-effective solutions and remember that the cost will be less than legal expenses that could result from failing to act.

 

  1. Record your findings (Steps 1-3)

 

  1. Confirm with colleagues

They may disagree or even add things themselves

Many of the hazards you identify may be obvious to everyone but it is still essential that you record them. Remember that it may be impossible or out of your reach to completely eliminate the threat of a hazard, but you should concentrate on making the risk as small as possible. In other words, control the hazard so that the risk of being harmed is low.

You should review the risk assessment periodically or when it is legally required if you employ more than five people. If you introduce changes in the workplace, or to the work itself, then you should update the risk assessment as soon as they are integrated. Any documentation associating Health & Safety, particularly risk assessments, should be made available and easily accessible to all staff.

Health & Safety Issues

The area that Health & Safety covers is extremely extensive when you take

into account the diversity of the industries where each one has specific Health & Safety issues. We have therefore identified the issues that are common to most small businesses today, which identify the hazard along with appropriate solutions.

a) Electrical Safety

Small offices are usually considered to have low risk when it concerns electrical hazards but it still is one of the main causes of personal injury and fire.

With the more machinery and equipment that you have in the premises, the risk increases but for now, we will just consider the small office with the common electrical equipment of, say, computers, fax machines, fans, etc

There is no way of eliminating such dangers as it is entirely down to how the user operates the equipment with respect to the potential dangers that can occur from miss-use. It is therefore your responsibility to make sure that all electrical equipment (including power points) are maintained so that the risk of injury is low.

This does not mean re-wiring, say, the computer, it is just a general inspection and testing which may include:

Looking for exposed wires that have no insulation

Identifying damaged and defected equipment

Identifying signs of overheating

Checking that all plugs have the right fuse and are earthed correctly, etc

Any issues need to be fixed immediately which will mean putting the equipment out of use until it is fixed: if you are still unsure, then turn off the power to the premises completely until it has been adjusted.

It is important that all tests and inspections are carried out by someone (if not you) who has a high knowledge on electrical safety. If your business employs more then five employees, it is stated in the Health & Safety Regulations that such inspections should be carried out by a qualified electrician.

b) Fire safety

Fire can put an end to small businesses if they are not controlled and you should therefore take all the necessary precautions to prevent such an incident from happening. All individual threats should be identified in your risk assessment but fire can be caused through a ‘knock-on‘ effect of poor electrical safety precautions.

It is important that you isolate the individual threats of fire by training your staff to deal with each case of fire. This will include fighting electrical and chemical fires as well as the general fires. In which case, you should provide the necessary equipment that is needed to battle fires including blankets, extinguishers, and possibly axes.

Fire extinguishers come in different sizes and more importantly, different types to put out different classes of fire:

Class A fires

These are combustibles such as wood, paper, general furniture, etc and

can be put out with an extinguisher that consists of either pressurized water or foam.

Class B fires

These include fires caused by flammable liquids or gases. In which case

you have to eliminate the oxygen to prevent the liquid or gas from further reaching the ignition source. Such extinguishers contain either carbon dioxide or dry chemicals (powder).

Class C fires

These are fires caused by electrical equipment and therefore it is important that the element used to put out the fire is a non-electrical conductor. You should never use water to put out electrical fires. The correct extinguisher to use would consist of carbon dioxide or dry chemicals (powder).

All extinguishers are classed and correlate to the type of fire that they can be used for. Some extinguishers may have, say, a BC class meaning that they can be used for both flammable liquid (class B fire) and electrical fires (class C fire).

It is important that you maintain your fire equipment and have it regularly checked by a fire authority (e.g. the fire brigade) to make

sure they are in constant working order. Aside from the use of equipment, your employees should be trained on how to evacuate the premises as quick and safely as possible. This will require you to make sure that fire escapes are clear at all times.

c) Repetitive Strain Injury (RSI)

Back in the times when typewriters were the only form of word processing, the degree of repetitive strain injury was reduced by the regular breaks of inserting paper. Today, because computers allow us to type freely with no interruptions, the risk has increased. When typing, very few of us think about the high risks of injury associated with our fingers, wrists and tendons. Those people that are employed only to type (e.g. secretaries) are usually the ones that keep quiet when they suffer from RSI caused by constant typing because they fear for their job.

Employees now have the backing of the law for employers to provide action to reduce the risk of RSI and are an issue that should be covered in the risk assessment (if used). To reduce the risk, you should provide adequate workstations that allow the employee to feel more comfortable when using a computer for typing or manoeuvring the mouse. Further, you should allow the employee to have regular breaks from typing by rotating their tasks.

Products have also been made available to assist RSI sufferers, which includes the ergonomically designed keyboard (available at all big office equipment stores) that reduces the need to bend and flex the wrists when typing. Similar products are available to assist with using the mouse.

d) Machinery Safety

If your business uses machinery in the premises, then they can possess a high

degree of risk to Health & Safety if not used and installed properly. The extent that this issue can go to is extremely wide and therefore it will be hard for this article to bring justice to the subject. As a result, we will only cover the main issues that should be considered when using machinery.

When you first purchase a piece of machinery, you should check that it has a recognized safety mark and secondly, you should obtain any licenses that may be needed to use such machinery. Further, you should consult an expert to acknowledge that the piece of machinery is installed properly and that the environment in which it is to be used is acceptable. This may have specific concern to its isolation so that there is a safe distance between the user and the people that work close by.

It is your responsibility that all employees are fully trained on how to use the machinery and the consequences of its miss-use. It is further important that the machinery is checked before use and also that periodic checks are made by yourself (or a competent person) to ensure the continued safety of its users. This will mean financing the budget for regular maintenance.

e) First Aid Kits

First aid kit is required by all businesses. By law, you must provide adequate and appropriate equipment to allow first aid to be given to employees that become injured or ill at work.

There are no mandatory contents for first aid equipment, although the minimum is generally accepted to be a properly stocked first aid box. In the event of an accident

you could be liable if your first aid equipment was seen to be insufficient

Activity 10

Do research on the all the emergency signs. Draw up a reference sheet for all the emergency signs and list their meanings. Write your findings down in your workbook.

6.4 The ability to enforce the employment equity principles at all levels of the organisation is demonstrated.

Purpose:

Promote equal opportunity and fair treatment

Affirmative action to redress advantages

Designated groups:

Black people (Africans, Coloureds, Indians)

Women

People with disabilities

Designated employers:

Employers who employ 50 or more employees

Employers who employ less than 50 employees but whose total annual

turnover equals or exceeds a certain applicable turnover (as gazetted)

An employer appointed by a collective agreement

Municipalities

Organs of state

Duties of designated employers:

Assign a manager

Disclosure of information

Consultation

Analysis

Preparation & implementation of an EE plan

Report to the Department of Labour

Display a summary of the provisions of the Act

Discrimination: Usually refers to unfair treatment of an individual or group on grounds of their gender, race or disability. When defining inherent requirements of a job, we must consider and avoid using criteria that might be discriminatory.

The inherent requirements of a job are essential requirements a person must have in order to be effective in a position – without these, the person would not be able to perform in the job.

Unfair discrimination: Discrimination which goes beyond the inherent requirements of a position, e.g. discrimination based on the race, gender, religion, age, culture, sexual orientation, marital status, belief, political opinion, pregnancy, social origin, disability, status, language or birth of individuals.

Fair discrimination: Entails ruling out candidates that are unsuited for a position, based purely not hose specific inherent requirements needed in order to perform a particular task or functional role effectively.

Definitions of affirmative action:

Affirmative action is a business strategy and process aimed at transforming socio-economic environments which have excluded individuals from disadvantaged groups in order for such disadvantaged individuals to gain access to opportunities based on their potential (IPM, 1995)

‘the purposeful and planned placement or development of competent or potentially competent persons in or to positions from which they were debarred in the past, in an attempt to redress past disadvantages and to render the workforce as more representative of the population, on either local or national level’.

Preparing an employment equity plan:

Phase 1: Preparation:

Step 1: Assign responsibility

Step 2: Communication, awareness & training

Step 3: Consultation

Step 4: Analysis

Phase 2: Implementation

Step 5: Corrective measures & objectives

Step 6: Time frames established

Step 7: Allocation of resources

Step 8: Plan communication

Phase 3: Monitor

Step 9: Monitor, evaluate and review

Step 10: Report

  6.5 The ability to identify trends in employment and apply corrective systems to bring them into line with legislation and company procedures is demonstrated.

Companies are realising ever more that in order to be successful they should not only focus on profits and financial figures, but also on nurturing their human capital and motivating their employees to reach their goals. It is no surprise then that clients, suppliers, investors and job seekers are increasingly favouring companies that take responsibility for the welfare of their workers, demonstrate commitment to their workforces and cultivate long-term and fruitful relationships with them. Ultimately, these companies are the ones that offer the most sustainable results and that seem more resilient in troubled times.

Companies based in South Africa are no strangers to this trend. On the contrary, many of them are starting to ponder the importance of engaging, retaining and motivating their employees in an effort to achieve their operational and business objectives. This trend is reflected in the emergence of such organisations such as the CRF Institute and JobCrystal. The CRF Institute’s BEST Employer initiative measures companies’ performances in terms of human resources management, while JobCrystal determines, through survey data, which companies have the happiest employees and are the best employers from employees’ perspectives. The use of the services offered by such organisations now allows prospective employees the opportunity to choose employers that will look after and nurture them, placing pressure on companies to adopt a human capital-centred approach to achieving their operational goals.

The trend is not unique to South Africa. However, South Africa’s status as Africa’s largest economy as well as the skills shortage and high unemployment rate the country currently faces, warrant a closer look at how the nation’s companies are performing in terms of the management of their most valuable assets – their human capital. human resources management plays a crucial role in the growth and development of companies in the context of an ever-changing global marketplace. Particular attention is paid to the challenges facing employers in attracting, retaining and nurturing quality employees in South Africa and what ‘the best’ South African employers are doing right in the ‘War for Talent’.

A number of business leaders are seeking new sources of growth and are tailoring their approaches to human resources management to address differing regional and demographic needs to support business operations and talent strategies.

The CRF Institute of South Africa has developed the BEST Employers methodology to identify the country’s top performers in the area of human resources (HR).In short, the BEST Employers certification is granted to employers that meet strict criteria related to excellence in six categories, namely: primary benefits, secondary benefits and working conditions, diversity, company culture, training and development, and career opportunities. The BEST Employers methodology, applied to the assessment of employers in HR not only in South Africa but also around the world, was awarded with full marks on credibility by the Dutch Ministry of Economic Affairs and its local results have been independently audited by Grant Thornton South Africa. The BEST Employers certification differentiates the companies that consider their human resource their most valuable asset from the ones that still concentrate solely on profit figures and that do not pay much attention to the happiness and advancement of their employees. Additional facets of the BEST Employers accreditation recognise companies that follow current corporate social responsibility trends and the ‘triple bottom line’ approach which combines the traditional bottom line element of profit with those of ‘people’ and the ‘planet’

Having an understanding of employment priorities and putting measures in place to ensure that employees’ professional needs are met are important for optimising overall employment experience thereby enhancing an organisation’s performance and future possibilities for growth. According to financial services firm, Deloitte, “too many organisations still do not have a realistic picture of the divergences between the attitudes and desires of their employees and the talent strategies and practices they have adopted.” This situation has resulted in an increasing number of employees who wish to leave their current employers now actively testing the job market. When McKinsey coined the phrase ‘War for Talent’ in 1998 to refer to the ever-widening supply and demand gap of executives in Corporate America, they attributed the cause of this talent shortage to, among others,  increased job mobility and corporates facing stiff competition for executive talent from small and medium sized businesses. This competition means that employers lose their best employees to companies that better suit their needs.

Due to the current characteristics of the employment market, South African companies cannot afford to lose the talent they have. Africa, South Africa included, has a significant shortage of specialised skills and it is estimated that over the next three years companies operating in Africa will see an estimated 75% increase in the use of expatriate staff. In South Africa, only one in six high school graduates go on to pursue a tertiary education, a much lower proportion than in other middle-income countries. Furthermore, a third of those who enrol in tertiary education institutions drop out within a year of doing so. The relatively low number of university graduates coupled with the frequent lament of South African employers that universities are producing graduates who are largely unemployable, means that competition among South African companies for skilled employees is intense.  Further compounding the problem of a lack of skilled employees in South Africa, by 2050, 97% of the 438 million people joining the global workforce will be derived from developing countries. Thus, retaining the scant talent that South Africa has will become more challenging as skilled workers enjoy a far wider range of global job opportunities from which to choose.

It is clear then that employers cannot afford to lose their valued employees due to unsatisfactory working conditions and limited prospects. They also cannot afford to lose the best prospective employees to organisations which the employees perceive to value their workforce more. The strategic use of human resources will be a critical factor in helping to establish and grow business across the continent, underscoring the need for companies to prioritise their workforces. One of the most tangible ways of succeeding in retaining talent is to become an employer of choice. This way a company has the best chance of attracting, developing and retaining high calibre people that will contribute to the growth and success of a company.

However, as Deloitte has consistently found with its Best Company to Work For Surveys, simply having in place strategies and supporting policies for the purposes of nurturing talent is not enough for employees to view a company as the employer of choice.  Strategies must be “aligned with the needs and expectations of the workforce, understandable and accessible to all, and perhaps most importantly, executed appropriately and consistently by the organisation’s leaders at all levels” to ensure the retention of quality staff and the future growth of the company.

As the South African workforce becomes more diverse in terms of age, generation, race, gender and nationality, attracting, retaining and developing talent will have to become that much more sophisticated and complex. According to Steve Bluen, Professor at the Gordon Institute for Business Science, in South Africa ongoing high rates of unemployment are accompanied by a shortage of specific skills and employers are increasingly faced with the need to become ever more “innovative when rewarding their people and keeping them stimulated and engaged in their businesses.”

Being a good employer in South Africa’s corporate environment today, does not only mean offering a good and competitive remuneration or providing employees with a clear and logical career path (which is not necessarily a given in certain organisations); it means much more than that. It means promoting a harmonious and safe work environment, providing fair opportunities to all employees, motivating the workforce, making employees part of the business success and practically showing them the effect of their work. Nowadays, initiatives to improve human resources management practices and to engage, motivate and retain employees cannot be ignored; they ultimately will lead to satisfied and happy employees that will perform better and bring workforce and operational stability, thus collaborating with the growth of the company. As Bluen puts it “talent management has been placed firmly on the strategic corporate agenda.”