HR Pro South Africa

27/09/2022

We have made receiving interns super easy
& convenient for you as a busy business owner. To qualify for remote interns, all you have to do is meet the requirements then - RSVP: +27 63 898 3451

A friendly staff will guide you through the process

Requirements:

1. Appoint a supervisor for your interns
2. Offer work or tasks the interns can do
3. Have a company website for your business

Ask for a link to apply by yourself or leave your details So we can apply on your behalf the choice is yours. The Interns receive a stipend ( no need to pay them )

Link to apply:

https://forms.gle/tyGpZvS9vNxtuR1q6

or

Whats-app us: 063 898 3451

03/06/2022

Work and WhatsApp

We all loved WhatsApp when it first arrived; convenient and cheap messaging was here and it was here to stay.

But then employers started using it and, all of a sudden, we were dealing with unread and ignored messages, muting groups and fearing a WhatsApp message from a particular work colleague or manager. Gone are the days of reliance on telegrams and postal services for absconding employees, simple messages to their last listed number is quite sufficient to prove an employer tried to make contact.
So, do you as an employee or as an employer need to be careful with how you use WhatsApp? Simply put: Yes! And exceptionally careful!

The Basic Conditions of Employment Act states that an employee may not work more than 45 hours and 10 hours overtime a week. And that an employee is entitled to a daily rest period of 12 consecutive hours and a weekly rest period of 36 hours, which includes Sunday (unless in compressed working weeks).

Does this include not having to respond to messages during your non-working hours or days? It seems the answer is yes. An employee is not expected to be available 24 hours a day to their employer and employers should not feel free to contact employees whenever they want. Employers do not ‘own’ their staff. They pay for services rendered, subject to certain conditions and in reasonable hours but should respect rest and family time. Unless of course, you have a “on-call” position and then you should get paid a shift or stand by allowance. Senior management staff or those employed in positions where 24 hour operations run need to understand that being ‘available’ goes with the demands of the job. Not at 2am unless it’s an urgent matter but if their expertise is required it won’t bode well if they are unobtainable in emergencies. High level positions go hand in hand with high levels of responsibility and that is a given. Emergencies do happen and sometimes communicating on WhatsApp can ease the situation very quickly. So attending to a late message if appropriate is the correct thing to do, but keep it short and to the point.

The Cybercrimes Act is also relevant here and lists offences for threats to people, categories of people and property through data messaging. This also includes sending confidential work data to people outside of work through WhatsApp and breach of confidentiality to the employer.

One needs to be very mindful of content shared on their WhatsApp groups. One innocent joke (or not so innocent, but only intended for certain individuals and shared in error) can lead to a mirage of legal issues from discipline to dismissals and suspension to expulsions. Not only is this relevant for adults but children too. Always think about what you are sharing, with whom you are sharing the information and educate your children about this. Growing up in a world where technology is now a “given” is way more complicated than previous times and requires us to be savvy to stay ahead (and out of trouble!)

In conclusion, keep your messages legally clean and relevant and try your best to keep your work-related messaging during work hours.

19/05/2022

The New Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace…….what does it mean for employers and employees?

On 18 March 2022 the Minister of Employment and Labour published this new ‘Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace’. It replaces the previous and amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and is much broader in context, in keeping up with our changing world.

Its Purpose:

To ensure that South Africa complies with international obligations while addressing the “prevention, elimination and management of all forms of harassment in the workplace.”

It provides guidelines on:

1. the the prevention and elimination of all forms of harassment as a form of unfair discrimination in the workplace, and;

2. the development of human resources policies related to harassment and the appropriate procedures to deal with harassment and prevent its recurrence.

The Application of the Harassment Code:

The Harassment Code applies to all employers and employees as well as ‘applicants for employment’. It recognises that perpetrators and victims of harassment may be persons other than employers, employees and applicants for employment such as clients, customers, suppliers, contractors, agents, consultants, volunteers, persons in training including interns, apprentices and persons on learnerships. Others having dealings with the employer’s business are also included.
The Harassment Code m applies to any situation in which the employee is working, or which is related to their work.

The Harassment Code regulates various ‘substantive’ and ‘procedural’ aspects.
Substantively, clarity is provided on what constitutes ‘harassment’. In this regard, ‘harassment’ is “generally understood to be:

1. unwanted conduct, which impairs dignity,
which creates a hostile or intimating work environment for one or more employees or;

2. is undertaken to, or has the effect of, inducing submission by actual or threatened adverse consequences and is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the” Employment Equity Act 55 of 1998 (“EEA“).

The Harassment Code gives specific consideration to ‘sexual harassment’ and ‘racial, ethnic or social harassment.’ It lists types of conduct that would amount to harassment which includes:

1. physical,
2. psychological or
3. verbal harassment

Examples of such conduct include intimidation and workplace bullying as well as the following:

- Bullying
- spreading malicious rumours
- insulting someone, particularly on gender, race or disability grounds
- ridiculing or degrading someone
- picking on them or setting them up to fail
- exclusion or victimisation
- unfair treatment, for example, based on race, gender, sexual orientation, pregnancy, age, disability, religion, HIV status, etc;
- overbearing supervision or other misuses of power or position
- unwelcome sexual advances of any kind including or including physical, verbal or electronic means
- making threats/comments about job security without foundation
- deliberately undermining a competent worker by overloading them or setting them up for failure
- constant criticism
- preventing individuals progressing by intentionally blocking promotion or training opportunities.
- withholding benefits with no apparent reason and for particular employees
- blackmail, shouting, swearing and using profanities

Procedurally, it is very clear that employers are under an obligation, in terms of the EEA, to “take proactive and remedial steps to prevent all forms of harassment in the workplace“. The risk is that by failing to do so, employers may be held vicariously liable for any harassment perpetrated, in terms of section 60 of the EEA.

The procedural steps include the development and implementation of harassment policies, the communication of such policies to employees and the outlining of clear procedures to deal with harassment in the workplace.

These procedures would include how harassment is to be reported, what the employer’s obligations are when becoming aware of allegations of harassment, the advice and assistance to be provided to complainants and the ‘formal’ and ‘informal’ procedures in place to address the harassment.

More emphasis is placed on confidentiality and how and when this is to be maintained.

The issue of harassment should be included in induction training programmes. This should be conveyed in a manner that is accessible and easy to understand in the appropriate language.

The introduction of the Harassment Code should be motivation for employer’s to assess their current policies and procedures to ensure they are practical, properly address harassment in the workplace and meet with the guidelines set out in the new Harassment Code. Failure to take adequate attention of the requisite obligations may result in liability for employers.

For more information contact HR Pro on 0845508229 or [email protected]

23/04/2022

26/03/2022

24/03/2022

Can The CCMA or Bargaining Council Determine the Validity of a Mutual Separation Agreement?

It often happens in the workplace that an employer and employee, for whatever reason, wish to part ways. The parties should then enter into an appropriately documented and properly negotiated mutual separation agreement (MSA) where the agreed terms of the termination of employment is recorded in writing.

It also often happens that employees, after entering into an MSA, claim that they were coerced, placed under duress or misled as to the terms of the agreement and try their luck at CCMA.

An MSA is in essence a contract governed by common law and the correct recourse would be to approach the Labour Court or High Court to set the agreement aside before referring an unfair dismissal dispute to the CCMA.

But can an ex-employee approach the CCMA or a bargaining council directly, without having to approach the Labour Court or High Court first to set the MSA aside, in order to avoid expensive and complex court proceedings?
Section 191 of the Labour Relations Act (‘LRA’) empowers the CCMA and bargaining councils to determine the existence of a dismissal and the fairness of such a dismissal.

It is up to the Employer to argue that the existence of an MSA means that there was no “dismissal” as contemplated in section 186 of the LRA because an MSA is the termination of the employment by agreement and accordingly not ‘termination at the decision of the employer’. If an employee claims unfair dismissal he or she first needs to be able to prove that a dismissal took place and thereafter argue the procedural and substantive fairness thereof.

Should the CCMA find that an MSA has been entered into the consequence of this is that an employee would have no option but to approach the Labour Court or High Court to set the MSA aside before referring a dispute in respect of an alleged unfair dismissal. The onus would also be on the employee to prove duress and misinterpretation.

If an individual contests the validity of their MSA, could he or she refer a dispute to the CCMA on this basis? In the majority of cases where the validity of an MSA is disputed, the Labour Court and High Court have ordinarily dealt with such matters.

However, in one case, Cook4Live CC v CCMA and others [2013] ZALC JHB 10, the employee allegedly conceded that his skills were not suitable for the position to which he was appointed and agreed to the termination of his employment on the basis of being paid out for two and half of months. He then referred an unfair dismissal dispute on the grounds of incapacity. The CCMA ruled that it did not have jurisdiction because an agreed termination did not constitute a dismissal. On review, the Labour Court held that section 191 of the LRA requires the CCMA to determine the existence of a dismissal based on the validity of an MSA.

The CCMA having jurisdiction to determine the validity of an MSA puts employers in a position where they need to very carefully manage the process leading up to the negotiation and acceptance of an MSA with an employee and confirm in the MSA that the employee has entered into the agreement freely, voluntarily and without any duress. Proof of this is the key to winning the test of validity.

Properly worded MSA’s and professional handling of the process is key. Shortcuts will ensure that either party will pay the price if there is a later dispute.

For further information on Mutual Separation Agreements contact [email protected] or 0845508229

09/03/2022

OPINION | Jacqui Reed: Could employers who don't offer remote working lose valuable talent?

It appears from recently released research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working, writes employment lawyer Jacqui Reed.

16/02/2022

FIXED-TERM CONTRACTS AND SEVERANCE PAY

Employees on fixed-term contracts have enjoyed more protection since the amendments to the Labour Relations Act (the LRA) came into effect from 1 January 2015

A benefit that has almost gone almost unnoticed, is the right to claim severance pay (section 198B(10)(a) of the LRA). The severance pay is calculated at 1 week’s pay per completed year of service.

An employee who has been employed for more than 24 months is entitled to severance pay when their fixed-term contract comes to an end, unless the employee earns in excess of the relevant income threshold (currently R205 433/annum or R17 119,41 per month) as prescribed by the Minister of Labour in terms of section 6(3) of the Basic Conditions of Employment Act (BCEA)

Employees who earn in excess of the relevant threshold are not entitled to severance pay when their fixed-term contracts come to an end.

What happens if there have been successive contracts or extensions, or where employment has been interrupted? These questions are addressed by section 84 of the BCEA, which provides that for the purposes of determining the length of an employee’s employment with an employer - previous employment with the same employer must be taken into account if the break between the periods of employment are less than one year.

Considering that this amendment to the LRA came into effect from 1 January 2015, employment before that date does not have to be taken into account (section 198B(10)(b) of the LRA).

For further information on this and other retrenchment or severance related queries please contact HR PRO on 0845508229 or email at [email protected]

29/01/2022

South Africa’s employment tribunal has issued its first decision on the dismissal of an employee for refusing to get vaccinated against Covid-19.

11/01/2022

COVID VACCINATIONS MANDATED IN THE WORKPLACE

Government guidance has been issued in relation to the fairness of an employer’s mandatory vaccination policy and its implementation.

The guidance takes account of different influencing factors, namely public health imperatives; the constitutional rights of employees; and the efficient and safe operation of the employer’s business

Employers are required to undertake a risk assessment to identify employees who pose a higher COVID-19 risk and should be vaccinated in the following categories:

1. risk of transmission due to the nature of their work; or
2. risk of severe COVID-19 disease or death due to their age or comorbidities.

Subject to any collective agreement, the employer must provide certain information and education about the COVID-19 virus and the vaccine to the identified employees, including the employee’s right to refuse to be vaccinated on constitutional or medical grounds. The guidance also suggests steps in the event of such refusal, including the possibility of reasonably accommodating the employee in a position that will not require the employee to vaccinated.

Employers are required to give employees paid time off to receive vaccination and to recover should they experience side effects.

Where an employer does find it absolutely necessary to implement a mandatory vaccination policy and an employee refuses to be vaccinated, risk must be closely evaluated and the employer should carefully consider the grounds for refusal and any reasonable accommodation.
If the employer is unable to reasonably accommodate the employee and subsequently dismisses them for operational requirements, the employer risks one of the following actions for which they need to be well prepared:

1. An unfair dismissal dispute referral to the CCMA or bargaining council. If the employer is found liable, reinstatement or the payment of compensation (up to 12 months salary) may be ordered.

2. The referral of an automatically unfair dismissal dispute to the Labour Court if the employee claims discrimination or that the dismissal was based on an arbitrary ground. If the employer is found liable, payment of compensation (24 months’ salary) may be ordered.

Hence it is vitally important to ensure thorough risk assessment is carried out and documented.

Link:

Consolidated Directives on Occupational Health and Safety Measures in Certain Workplaces:

https://www.nioh.ac.za/wp-content/uploads/2021/06/Consolidated-Direction-on-Occupational-Health-and-Safety-measures-in-certain-workplaces_May2021.pdf

For assistance on this and other matters contact HR Pro via email.

29/12/2021

South African businesses may be in for a major mandatory paradigm shift as of next year as it has been announced that the Employment Equity Act of 1998 is being amended...