Beware of your “expert” friend!

This is more for individual employees, but sometimes will also apply to employers…

We all understand the need to save money, especially in the current economic climate. We have all faced the familiar situation where we would rather do something ourselves than pay someone else to do it. We will often get advice from a relative or friend who we perceive to be an expert or at least a bit experienced. This is all good and well, BUT be careful when dealing with something that could potentially cost you a lot of money if done incorrectly.

I refer again to a post I wrote a long time ago, about contracts. I encountered this again at CCMA recently. I’ll skip the details and get to the point…

The applicant employee, as part of his argument, claimed that “the contract is invalid, because I did not sign the first two pages”.
My question to him was “Why would that make the contract invalid?”
His response was “because the law says every page must be signed for the contract to be valid”.
At this point, the Commissioner made a snickering sound and asked “what law is that?”.
Obviously, the applicant couldn’t answer the question, because there is no law that says that. He went on to explain that he had asked a family friend for advice. The friend had some experience in drafting contracts and gave him that bit of unsound advice. The applicant subsequently lost his appeal.

In a similar case about 2 years ago, I encountered the same thing. A friend had given the applicant advice, based on the provisions of his company policy. It transpired that the friend had only ever worked for that one company and had never been exposed to other employers’ policies or even statute law. He simply assumed his employer’s policies to be equivalent to the provisions of labour legislation.

So, employees and employers, be very careful when taking advice from people who are not bona fide experts in their field. They will often give advice based purely on their own limited exposure in a narrow set of circumstances.

When in doubt, contact a professional. Because prevention is cheaper than cure!

Do it correctly and SAVE $$$

So a few weeks ago, we had to settle with an employee who should not have received a cent. We advised the client that it was going to be a tough case to defend at CCMA, despite the employee’s incredibly hostile attitude towards management and colleagues in the time leading up to his dismissal. It had all started months before… and that’s where the problem was.

Some types of misconduct, like habitual absenteeism, abuse of sick leave and poor work performance normally come with a history, some prior indications that the employee was becoming a problem. They don’t just happen overnight. They can’t, hence terms like “habitual” or “continuous”.

The problem with our “case study”, was that the employee’s performance was good when he started working some years back. Over the last few months however, he’d been working slower and slower and making some minor mistakes. Not to the extent that it damaged the business, but it was noticeable. Management, feeling that he had served the company well for the last 5 years, decided not to intervene. Perhaps it was just a passing phase. So they let it slide.
The employee also started coming to work later and later, 5 or 10 minutes late at first, but later escalating to 30 to 45 minutes at least once a week.
Only recently, when the employee botched a job that cost the company a few thousand rand to fix and a damaged relationship with a client that needed mending, management decided perhaps it was time for the employee to seek greener pastures. They notified him of a disciplinary enquiry, followed all the right procedures and the chairman (one of the management team) dismissed him. He subsequently went to the CCMA, claiming unfair dismissal. The commissioner supported my original prognosis and I convinced the client to settle. The employee wanted 6 months’ pay, but we got it down to 3. Still a lot of money though.

The problem was not whether he had been guilty of misconduct. In fact, despite aggressively pleading not guilty at the enquiry, in cross-examination he acknowledged that the job he’d botched had been his fault, having performed that same task many times before. He also acknowledged that he had no personal problems, but had lost interest in the work and the company.

The problem? He insisted that the dismissal sanction had been too harsh, as he had a clean disciplinary record. And, unfortunately, he had a point.

Although the LRA allows for dismissals for first offences, those offences must be of such a nature that continued employment is likely to severely place the business and / or its staff / customers / property at risk of some kind. Extreme violence, incitement and drug dealing are some examples of such offences. But a gradual decline in work performance and attitude, left unactioned for months, is looking for trouble. And that trouble will result in wasted time and money.

Employers, please make sure your house is in order. The CCMA does not take kindly to a slack attitude to progressive workplace discipline.
We know it’s a bit of work, it’s boring and tedious. But that’s why WE are here. We’ll take care of it for you, leaving you to take care of your business and sleep peacefully at night. Just give us a call.

Remember: prevention is cheaper than cure!

Precautionary words ahead of the silly season

December is around the corner and society has given it a very apt name: silly season!

Among the many traditions that we enjoy over this festive period is the ever popular “year end function” or “staff party”.

If this is what you are planning in your business, I have a few tips that could save you a lot of money in lost productive time, damages and even litigation.

Whilst most employers have some form of alcohol related policy in the workplace, many will relax the policy in lieu of the year end functions. This means that management and staff sharing a few drinks and laughs around a braai is par for the course. And why should it not be?
The simple truth is that, although office parties are seen to be social events, they are an extension of the workplace and some rules should still prevail. There have been real cases of drunk driving, horrible accidents, violent behaviour and more emanating from office parties. And in many cases, the employer ends up sharing the liability and subsequently has to pay reparations and legal costs.

So if you don’t want to see your business ending up in expensive litigation, here are a few simple tips to consider:
1. Ensure all staff and management know that there will be one or two non-drinking members of management and staff monitoring people’s behaviour during the party.
2. Anyone who is responsible for a company vehicle should hand in the keys until the next day, or use a taxi to travel to and from the party.
3. Have breathalyser tests available for anyone wanting to check their level of sobriety. These are available from many outlets and are cheap enough.
4. Issue strict instructions to barmen or anyone in charge of dishing out alcohol, not to serve alcohol to anyone who is visibly intoxicated.
5. Have a strict end time for the party. Preferably not after midnight. And ensure that the end time is strictly adhered to. Switch off music and lights if necessary.
6. Ensure that everyone knows that the party is still a work function and proper decorum is required. This includes mutual respect and orderly behaviour.

As always, if you or someone you know needs some assistance in this regard, please contact me.

Have a safe and happy festive season!

A quick note on disciplinary enquiries…

Here’s something I see more and more. In order to save a bit of money, employers often conduct their own disciplinary hearings. Understandable, with the economy being what it is.

The problem is, if it is not done properly, it WILL cost you a fair amount of money at CCMA or Bargaining Council. Every time I warn employers about the dangers, I get the same response: “But I have a strong case! He / she was caught stealing on camera”… or something similar.

To that I say FANTASTIC!
But having concrete evidence of wrongdoing only gets you halfway. Arbitrators (CCMA Commissioners) have to consider a matter on TWO fronts – both SUBSTANTIVE and PROCEDURAL fairness. Your undeniable evidence only gets you a tick in the Substantive box. If you fail on the Procedural front, the employee WILL get an award. And recent case law shows that those awards can be anything in excess of 2 months’ salary.

Remember, the maximum award at CCMA or BC for unfair dismissal is 12 months’ salary. And it DOES happen!

So, if you’re not 100% certain of your Procedural prowess in disciplinary hearings, do yourself a HUGE favour and get some professional assistance.
Why?
Because prevention is cheaper than cure!

Contracts again – this is for both employers and employees

There is a general principle in law – you cannot contract outside of the law. This applies equally to employment contracts, with the exception of a few items that can be agreed by collective agreement.

Even I, from time to time, am shocked with what I find in employment contracts. Shocked that the employee is happy to sign it, but more shocked with what the employer puts into these contracts to start with. And then the employer is upset to find that a particularly “dodgy” clause cannot be enforced!

I will elaborate by way of a few examples…

– the contract states “the employee will wear a uniform at all times, the cost of which will be deducted from the employee’s wages”.
==> The clause is illegal, because the employer must provide the uniform free of charge (under most circumstances)

– the contract states “the employee agrees that he/she is an independent contractor and that this agreement does not constitute an employment contract”.
==> The clause is pointless and often cannot be enforced. Employment status is determined by a set of rules contained in the LRA, regardless of what the contract says.

– the contract states “as a Manager, you are not entitled to be paid extra for overtime, public holidays or Sundays worked”.
==> The clause may be problematic. Just because an employee has the word “Manager” in his/her job title, does not automatically exempt him/her from those benefits. There are other factors that will determine those exemptions. Bottom line: each case will be judged on its own merit.

– the contract states “the employee acknowledges that any act of fraud or violence will result in immediate dismissal”.
==> Be careful. Not only can this not be enforced, but it could also, should a dispute go to CCMA, turn the Commissioner against the employer from the start.

There are endless examples like these.

The most important thing to remember is: just because the employee signs the contract, doesn’t mean that he/she will be bound by all the clauses in it.
Do it the right way. Get an expert to draft your contracts.

Antics and Attitudes

I shared this briefly with a group of business people recently, but I believe I should share it with everyone.

Something we hear too often, generally from Managers and business owners: “I have a staff member with a terrible attitude, who just breeds negativity, etc etc… but the job is always done, so I can’t get rid of him / her”.

The next time you hear someone say something similar, your response should be: “Nonsense! I know someone who can help you with that particular problem”. And then tell them to contact us.

Because, quite simply, the employer has a right to develop and maintain a certain culture in his / her business. Any employee who unreasonably goes against this culture is treading on thin ice, regardless of how well he / she does the physical job.

So the simple answer is yes, you can get rid of an employee with bad attitude.

Just a word of warning though – if you (the employer) are the cause of the bad attitude, then you may face a constructive dismissal situation. Be careful.

As always, if you have an issue or a concern, just drop us a message.

Constructive dismissal – WATCH OUT!

Constructive dismissal…

So you’re unhappy at work, the boss is giving you a hard time, you feel like you’ve put your heart and soul into your work but it’s all unappreciated? And you’ve heard that if you resign under these circumstances, you can claim “constructive dismissal” and get a few months’ pay out of it? Well, you’ve heard right, but don’t start composing your exit letter just yet. Read on first…

The Labour Relations Act (LRA) allows for an employee to resign and claim constructive dismissal if “… the employer made continued employment intolerable for the employee”.
After reading this line, you may think “Wow! That describes my situation perfectly!”
But wait, there’s more. Normally, at a CCMA arbitration dealing with an unfair dismissal, the onus is on the employer to prove that the dismissal was fair. This is not the case with a constructive dismissal claim. The onus, in this case, is on the employee.

According to the LRA and case law, the test that must be employed by an arbitrator to assess whether a constructive dismissal claim has substance, is not subjective, but rather objective. This means that the employee’s feelings at the time of resignation are of little significance. The arbitrator is more interested in the actual circumstances in the workplace that allegedly led to the employee’s resignation.
Another part of the objective test is whether the employee’s resignation was the “last resort”. Did the employee exhaust all possible internal mechanisms in order to get the issue resolved before resigning, or did the employee simply resign in a huff?
And furthermore, an arbitrator must also look objectively at “the issue” to determine whether any reasonable employee would have come to the same conclusion, i.e. that the employer was making the workplace intolerable.

A full discussion about constructive dismissals could keep me typing until my fingers were numb. The message that I would like to bring across here is simply that constructive dismissal is a minefield that any employee should approach with great caution.The first requirement of a constructive dismissal claim, is that the employee needs to resign. This is a big step. And unless that employee is absolutely certain about what he or she is doing, my very strong advise is to get expert assistance first.

Sick leave abuse

A word about sick leave and the various forms of abuse thereof…

Labour laws make provision for employees to take sick leave when they are indisposed and can’t work. It is a right, only as far as it offers protection against loss of income due to REAL illness.

Many employees, unfortunately, regard sick leave as an entitlement that has to be enjoyed to the full, like annual leave. They consistently take their 10 days every year, submitting proper sick notes that claim “URTI” or “Gastro” and the like…

Many employers, on the other hand, are so frustrated by this obvious widespread abuse that some even end up considering closing up shop, as the cost of unproductive labour escalates beyond affordability. Others reach boiling point and issue marching orders, which invariably end up at CCMA and a few months’ salary paid out to the dismissed employee.

If this is you or someone you know, speak to us.

It can easily feel like an insurmountable obstacle, but it need not be. There is sufficient case law to assist in clamping down on this very common practice. All it takes is a little bit of patience to do it the right way.

As always, let us help you with the headache. Because prevention is cheaper than cure!

Independent Contractors

The Independent Contractor – Employers beware…

There is a growing phenomenon in the workplace today, that of the” independent contractor”. Essentially, this is a person who performs certain functions for an employer, just like an employee, but does not form part of the organisation and therefore is not considered to be an employee.

The benefits for the employer are obvious. There is no need to bother with UIF, PAYE, annual leave, sick leave, overtime, public holidays, disciplinary procedures or any of the multitude of headaches that come standard with an employment relationship.

This is all fine and well, if the intent of the relationship is truly an independent one. But, where a person is an integral part of the organisation and relies on a certain amount of job security, being labelled an “independent contractor” can result in major heartache and sudden uncertainty when that relationship comes to an abrupt end.

So, for those of you whose contract of employment states that you are an “independent contractor”, as well as those employers who like to use that terminology, please take the following to heart.

The Labour Relations Act (LRA), and the subsequent interpretation of it in case law, makes it very clear that the circumstances surrounding the relationship, as assessed by an arbitrator, will determine whether it is an employment relationship or whether it is of an independent nature, regardless of what the contract may state.

In summary, employers should note that hiding behind the label of “independent contractor” may not afford them the protection that they expect. And employees, if you suddenly find yourself without a job as an “independent contractor”, all may not be lost. Even if you are still employed, but do not enjoy the benefits of annual leave, overtime, UIF and so on, you may want to seek professional advice.

As always, if you need assistance or advice, contact me!

Contracts in general

Just a quick word on contracts. Not just employment contracts, but ANY contracts.

A friend recently complained that her tenants always pay their rent a few days late. Although the contract stipulates that rent will be paid on or before the 1st of every month, her tenants regularly pay around the 5th or 6th. When she reminded them that they need to pay earlier, their response was that the law gives them until the 7th of the month. And now she’s upset because she has to wait a week longer to get her money.

My immediate response to this was: what law?

I find this pretty often. One party will claim that “the law” gives them the right to do this and that, when in fact, no such law exists.
There is a principle in law called “common law”, but this is not statute law (written law) and any argument based on common law has to be decided by a court or similar authoritative body. Nothing in common law is a foregone conclusion…

So whether you’re the one quoting “the law” or the one on the receiving end, beware. Ignorance can be expensive, especially when it comes to contracts.

If you’re uncertain, call a professional!