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Labour Law

The wording of employment contracts and the associated clauses are crucial and can affect the employment relationship when circumstances arise at a later stage. Many of my clients and business associates have heard me repeatedly say “be careful what you put in your employment contract. If it’s not done professionally or been properly reviewed, its guaranteed to bite you later.”

So, the question is - how will it bite you later? When entering into a contract, even as simple as an employment contract it, is legally binding. What you decide to document, is what you are going to be held to. The only way to alter the contract is through consultation with the employee. Consultation is not merely telling an employee that their conditions of employment are going to change. Consultation in this context means discussion and agreement. “Agreement” being the operative word. The risk is when times are tough or relationships are strained, the employee will be less likely to reach a point of agreement.
Common errors that most employers do not consider and may include in employment contracts are: Extending the required notice periods beyond those stipulated in the Basic Conditions of Employment Act. This is most probably done with the view of protecting the business so that the employer has enough time to replace the employee. The employer must however realise that should the employer wish to retrench the employee or request the employee to leave without working their notice period (outside of a summary dismissal), the employer is obliged to pay the salary due to the employee that they would have been paid if he worked the full “extended notice period” as per the contract. Another common error is to commit to 13th cheques or other bonuses. Later, due to financial strain or other business reasons, the employer may not be able to do so and will be required to pay the bonus unless they consult and obtain agreement to alter the contract. It’s highly unlikely that employees will waive their bonus without getting something else in return.

Many employers make use of templates from the internet or use another business’ contracts as a foundation for their own. In my experience, it has proven to be a very dangerous practice. Aside from the factors mentioned above, employers may be using a contract that is not relevant to their sector. This mistake could have the employer documenting incorrect overtime hours, incorrect overtime remuneration, or the incorrect severance pay amongst other employment conditions. This could either get the employer into hot water with The Department of Employment and Labour, a Bargaining Council, or even worse - the CCMA when you have retrenched an employee according to the wrong conditions of employment for the sector.

Due to lockdown and COVID-19, several new clauses should be considered to protect the employer and allow for unforeseen circumstances. My advice to employers is to add these clauses to new contracts, and if possible, consult with current employees and get them to sign an addendum to alter their conditions of employment. Having these clauses agreed to in a contract or an addendum allows the employer to immediately implement changes to employment conditions without the difficult task of consultation and obtaining agreement, and in the event of agreement not being obtained; forced to implement the retrenchment process.

A short time clause covers the employer to implement reduced working hours due to economic factors, slackness of trade, the lack availability of raw materials and similar conditions.

A Lay-off allows the employer to implement the “no work no pay” principle when the employer has no work for the employee to perform.

A clause for supervening impossibilities, where circumstances do not allow for either party to fulfill their contract, such as lockdown where an employer could not provide the employee work, and the employee could not tender their services to the employer.

The final clause being force majeure, where circumstances arise being either an act of God or man which does not allow the employer to trade.

Another risk is entering a fixed term contract without a retrenchment clause. A fixed term contract without a retrenchment clause cannot be terminated by retrenchment and the employer will be liable to pay the employee his salary for the remainder of the contract if terminated early by retrenchment. Essentially this means that a fixed-term employee has greater protection against retrenchment than a permanent employee if you have not catered for an out of the contract due to retrenchment.

If you are looking to change conditions of employment, as always, it’s imperative to consult. There are many unions knocking at business’ doors at the moment. If you are in a similar situation, I would recommend that you consult with employees and hopefully get addendums signed before signing a recognition agreement with the union, as the process will become delayed, tedious and difficult and may not have a successful result if a union becomes involved.

Labour Law

COVID-19 has caused deep uncertainty in every aspect of our lives and this flows into the workplace. As a business owner or leader, your ship needs a captain to steer it to safe waters. You may be asking, how do I achieve this?

1. Follow the Same Compass
The first thing is to make sure of, that all of you are in the same boat steering in the same direction. To achieve this, you will have to communicate with your team and encourage them to see and believe in your destination. Encourage ideas and conversation, the sharing of ideas about how to do things differently and create buy-in from your team. Make sure your vision is realistic and authentic, if it’s not your team will fail to support you in getting to the intended destination.

2. Communication
Your communication will need to be brutally honest and very clear. If your business is in a vulnerable position make sure to share your vulnerability, concerns and fears. Employees relate better to someone who is being real and honest about a situation. During times of uncertainty, you cannot have a divide, an “us and them” scenario, this will not contribute moving forward together. Staff are very sensitive to the distinction between management and themselves, any perception of creating different circumstances for the leaders than staff will decrease morale, cause more antagonism and animosity at a time where you may be required to negotiate with staff regarding changing situations at work, or even conditions of employment. You do not want to project of superiority the movie “Titanic” comes to mind - where there is a shortage of lifeboats and "upper class" jump in and leave others at sea. To feel safe employees, need information, I would suggest regularly updating them on the situation in the company and ask them if they can provide solutions or ideas to help with the common problem to achieve a common goal.

3. Create a Positive Environment
Set the tone for the mood within your team, things may be hard but adopt and promote an attitude of gratitude, express gratefulness for the good things, however small they may seem within the company, express gratefulness for staff commitment and acknowledge the small things staff do well. Take a moment to pause from negativity and promote positivity, and where individuals cannot see the positives, try and encourage them to see things in a different light.

4. Connection
Be aware of different personalities in your team, and that not all deal with stress in the same way. During this time of uncertainty try to create a connection with your team, show genuine concern for the individuals. Some of your team may be dealing with very real fears or circumstances such as family members being ill with COVID, family members dying, or losing their jobs, financial stress. Please remember that a person is a holistic individual and these things will come to work with them. Dealing with emotional issues does not always come easy to every manager. So, if emotional conversations are difficult for you, ensure that there is someone trustworthy within the organisation that the employee can talk to. Staff may not have anyone to talk to at home especially if the entire family is dealing with a loss financially or other, they may not have a safe space to vent or to gain a different perspective.

5. Be Realistic
Things are not what they were before COVID and in many case external factors which are not in the employee’s control may affect the employee’s performance, for example, a client closing down, or COVID restrictions not allowing them to reach their targets, remember to adjust your expectations and targets accordingly. Many teams are split due to work from home arrangements, try to touch base with your team, give them a call to see how they are doing on a personal level during this time, show interest in your team member beyond their outputs.

6. Keep the Balance
During a difficult time, such as the COVID period, companies need to produce at the right quality, time and standards to survive. Achieve a balance between the company objectives and any personal issues and employee may have, but where the employee is blatantly not performing his duties, inciting the workforce or spreading negativity it is important to take the necessary action, businesses cannot afford to carry people that will impact the survival of their organisation.

7. Be Alert
A reminder that as of the 1st of July, TERS is no longer available to employees. Employees can still claim UIF for reduced workings through the normal UIF channels. Claims will need to take place after the payroll period has ended and will be calculated at the usual UIF rates and in some cases especially the lower-paid employees will be paid at a rate less than TERS. Claims are likely to take a few weeks to process. I would encourage employers to keep a watchful eye out for your troublesome or disgruntled employees during this time as these are times where you could have increased theft, sabotage or absenteeism especially if they perceive that the leaders have jumped in a lifeboat and have left them behind.

Labour Law

Lockdown and COVID 19 have wreaked havoc on the economy and businesses have felt the pinch. Employers are having to face financial uncertainty and are looking to find cost-cutting measures. Many employers have been ill-informed and have embarked on cost-cutting measures that are against the labour law and the repercussions will cause a huge financial loss and potentially cause companies to close.

Some of the behaviours that employers are engaging in are:

1. Unilateral Changes to Conditions of Employment
The employment contract between an employer and employee is binding, such conditions cannot be changed by either party without consultation and agreement by the other party. Consultation is key and means that if an employer wants to decrease and employee’s salary, working hours or even not pay out a guaranteed bonus or any other term agreed to in the employment contract this must be discussed and be agreed upon either by employee, or bargaining council or trade union where applicable. An employer cannot decide for the employee to change conditions of employment without consent, and if the employer does so the employee can lodge a dispute of either an unfair labour practice ,or a constructive dismissal should the employee no longer wish to continue to work under the conditions they did not agree upon. An employee may be awarded between 12 to 24 months’ salary as compensation for such actions if you multiply that by the number of affected staff the employer may have to close their door.
The question is what does one do if the employees disagree? If the employer is in true financial difficulty and the discussions have been had the employer may progress to retrenchments, however, the employer is cautioned not to use this as retaliation for not conceding to their demands, if the employer uses this as a mechanism of retaliation this will be deemed an unfair dismissal with up to 12 months’ salary in compensation to the affected parties.

2. Retrenchments
Any form of termination in the law need to meet two types of fairness being substantive fairness (the reason for dismissal) and procedural fairness (a fair procedure), the absence of either of these two elements will deem the retrenchment unfair.
Many employers have the fair reason for retrenchment, and this being for economical, technological or structural reasons, however, employers seem to be ill-informed about procedural fairness opening themselves up to legal liability.
An employer must as soon as they become aware of the need to retrench employees notify the employee, or bargaining council or union whichever is applicable.
The employee must issue the employees with a Section 189 Letter as an invitation to consult. Employees must be allowed to consult, and this is the step that often gets neglected. The consultation process needs to look at selection criteria, and ways of avoiding, minimising and delaying retrenchments. The process is to be a joint consensus-seeking process to find possible alternatives. An employer cannot merely retrench and identify the exact employees who need to be retrenched before consultation with the affected employees. Should the employer and employees fail to reach a consensus and no other option can be found the employer can issue the employees with a notice of retrenchment and embark on a retrenchment process.
It must be noted that the retrenchment process for smaller businesses who employ less than 50 employees differs from an employer who employs more than 50 employees. Depending on the number of employees being retrenched and the number of employees who have been retrenched in the last twelve months, an employer who employs more than 50 employees may have to abide by the prescriptions of a large-scale retrenchment. The minimum consultation period for a large scale retrenchment is 60 days, this includes the retrenchment being facilitated by a facilitator appointed by the CCMA. It is therefore important that should a large-scale employer believe they are heading in the direction of retrenchments that they start consulting sooner rather than later. There is no prescribed time period for consultation in small scale retrenchments. Compensation for unfair retrenchments can be up to 12 months’ salary and the employer may be ordered to reemploy the employees or re-instate them with back pay from the date of unfair retrenchment.

3. Forcing Employee’s to Sign Indemnities
Some employers are requiring their employees to sign indemnities that the employer with not be held liable for any workplace-related claims due to COVID 19. The employer is terms of the Occupational Health and Safety Act is required to provide the employee with a safe working environment and follow the additional prescriptions of the Disaster Management Act. An employer cannot absolve himself of his legal responsibility. Similarly, employees are adding clauses in retrenchment agreement that do not allow employees to refer a dispute to the CCMA, this is unlawful the employee in terms of any dismissal can refer the matter to the CCMA within 30 days.
Clauses that try evading the prescriptions of the labour law will not count in the employer’s favour when facing the CCMA or Department of Labour.
I urge employers to be careful and get the necessary advice needed for making decisions that may cost their business’ sustainability and the jobs of those who have been left behind after retrenchments.

On a lighter note, we have added another service to offerings. I am now certified to conduct B.A.N.K. personality tests. These tests are particularly useful in finding the right fit when you're recruiting, assessing team personalities to facilitate better teamwork and group dynamics and to understand interpersonal conflicts, and assist in managing difficult employees. Please contact me should you wish to find out more about these tests.

I can conduct consultations both in person or virtually via Zoom or other platforms. Due to COVID 19, I am able to chair disciplinary hearings via online platforms and this is an acceptable practice provided these are recorded.

Keep safe, and I wish you well during these trying times.

Labour Law

Incapacity Poor Work Performance is often dealt with in the incorrect manner in the workplace and the indirect cost to business is huge.

Let me paint a common scenario.
The employee is usually someone who never gets the job done, fails to meet his targets and he is an ongoing problem. He never seems to get the job right and your wonder is he is even aware of the expectations placed on him, although he has been told. Daily operations continue to take up management’s time, you are remotely aware of him but there are other business pressures. One day “all hell” breaks loose the employee finally makes a huge mistake, a mistake that costs the business - be it a failed quality audit, failure to meet the targets for a big order or something that costs the reputation of your business dearly. The employee is now on everyone’s radar, the owner of the business is aware of him, he is back in the focus of senior management and the feeling is he must go, and he must go now.

Let me give you the definition of Incapacity Poor Work Performance before I outline the common mistakes employers make and the actual course one should take to remedy such a situation.

Poor Performance is not where an employee has broken a rule but rather where the employee has failed to achieve the standard. From this definition one can deduce that this is not an isolated incident, there is a pattern of behaviour, a pattern of failing to achieve standards, the employee is not doing this deliberately but does not have the capacity to reach the standard and therefore incapable of reaching the standard.

Back to the scenario - the employee must go now! As a consultant, I have come across many creative ways where employer’s want to get rid of the employee immediately.

  1. The first being “I have given the employee warnings, he is on a final written warning”. Warnings are issued for misconduct. Misconduct being the employee’s breaking of a rule. This the totally wrong approach to deal with poor work performance and the inability to reach standards. If this approach has been followed unfortunately the employer will have to go back to the starting blocks and start with the Incapacity Poor Work Performance route. There is no way the employee will be leaving your premises that day, you won’t get through the CCMA unscathed with this approach.
  2. Retrenchment, many employees try to retrench the employee. Don’t go down this route. Retrenchment is based on operational requirements, these factors are business factors and not based on the employee’s behaviour or performance. Retrenchment can be considered for the following reasons, technological, economical or structural. Trying to retrench an employee for Incapacity Poor Work Performance does not fit within these categories and you will get burned for procedural and substantive unfairness. Also in such circumstances, if the employee is part of a group of people employed in the same position all these employees would need to be consulted for retrenchment, you will create uneasiness and uncertainty that you don’t need in the workplace. Further to this, you cannot fill the position for six months after retrenchment. This is going to lead you to a dead end.

So what then is the correct procedure?

Firstly when you begin to notice an employee is not making the grade and failing to meet the requirements of the job take immediate action. Pretending and hoping the situation will go away will only prolong the process and ultimately cost you in the future.

The process is as follows:

  1. Identify the performance issues
  2. Set a meeting with the employee to discuss the standards (counselling session). Is the employee aware of the standard, do you have this in writing? Does the employee have a job description or any other documentation setting the standard? Investigate the reasons for the standards not being met, there could be justifiable reasons that the employee may be struggling look into those properly.
  3. Ensure that the standards are justifiable, reasonable and achievable and that there factors from the company’s side that may be hampering the achievement of the standard.
  4. Record the discussion, ask the employee where he may need training, mentoring and coaching to improve the standards.
  5. Set out an action to achieve the standards
  6. Set down a reasonable time frame, and agree with the employee that the achievement of standards will be monitored over this time period with the necessary assistance and training given and a further meeting will be held to evaluate the employee’s performance.
  7. Monitor the employee’s performance and record your findings. Record any form of training and assistance given and ensure the employee sign’s this as well.
  8. Conduct a follow-up meeting and assess where the employee is, repeat the process above and set a further meeting to re-evaluate the employee’s performance.
  9. Should the employee fail to meet the standard and the employer has allowed for a reasonable time period for the employee to achieve the standard an Incapacity Poor Work Performance hearing must be called and this could lead to the employee's dismissal.
  10. The most important factors to remember is to record every conversation, every intervention, training session and every meeting. As an employer follow all the steps to show you have tried to assist the employee and prove your case this is vital for procedural (process) fairness and substantive (reason) for dismissal. Once you have ticked all these boxes you will survive the CCMA.
  11. If you have any queries regarding the Incapacity Poor Performance process or have a poor work performance situation that you would like me to facilitate please feel free to contact me.
Labour Law

You have been back at work for almost a month - Have you thought of what you will do differently this year? The way you manage staff, the structures and processes you have in place all have a direct impact on whether your employees are an asset or a liability.

  1. Company Culture
    Company culture is the way things are done within the business, the way people behave and treat each other. Defining a company culture is very much the same as defining how a certain family unit behaves. We all have those friends that when you invite them over you cringe because their children are unruly and disrespectful this is their family culture, their identity. In order to establish a company culture, goals and behaviours need to be set, and everyone from top to bottom needs to be held accountable for their behaviour with unacceptable behaviours and practices being to be addressed. If people are pulling in different directions you generally do not have a company culture in place or a less favourable culture may be incubating between the staff.
  2. Legal Compliance
    One of the first things to check – are you legally compliant? Do you understand the law and are you implementing it correctly. If not, there is a risk, and it’s usually financial. The Department of Labour and Employment may fine you or in some cases, they will charge an employer criminally for non-compliance. If you are knowingly and willingly bucking the system, your employee is most probably aware of this and when a conflict arises their first port of call to get back at the employer is the Department Of Labour and Employment. Your non-compliance and the consequences will bring your business down like a deck of cards rather prevent this from happening by ensuring you are well informed of the legal compliance requirements for your business sector.
  3. Company Structure
    When last have you looked at your company structure and evaluated the roles your staff are fulfilling? Circumstances change, you may have taken on another project and you may be understaffed and need more hands if so your current staff may be overworked and cannot perform to the best of their ability or to your company standards. On the other hand, the economic downturn may have hit and you may have to consider restructuring or retrenchments.
  4. Poor Work Performance
    In every business, there is always that one individual that does not perform to the required standard. In many cases, employers close their eyes, ignores the poor performance and hopes it gets better. The reality is that is most probably won’t. If you are carrying the proverbial “deadwood” it is costing you money. Make sure that you institute the proper procedures for incapacity -poor work performance, a heads up – this is a not a process where warnings are used. Deal with poor work performance swiftly, the longer you leave it, the harder it becomes to deal with it, and you may have compromised the legally required element of fairness.
  5. Discipline
    In order to change behaviour set boundaries and make sure you implement the discipline according to your documented policies, procedures and codes. The key to getting through the CCMA unscathed is consistency and fairness, once you have compromised on these two factors and created a precedent, you will continually be hampered in applying discipline in future. Created precedents hang over your head for years to come. If emotions get in your way, normally incredible anger and frustration or pity for an employee, consult a professional who can advise you what steps to take, professionals, put things in perspective and take the grey out of the situation.
  6. Measuring employee outputs
    If you can’t measure something, you cannot effectively change it. Have an objective performance appraisal process in place, ensure it’s aligned to the employee’s job description. Make it a sincere, non-threatening and open process where performance is encouraged and documented. You could link incentives and remuneration to the measurements of a performance appraisal.
  7. Policies and Procedures
    Policies and procedures set the tone for expectations of employees and define boundaries and behaviour. Don’t leave your expectations to chance, expensive and detrimental mistakes by employees have been made due to them not knowing what is being expected of them.
  8. Recruitment
    Who are you letting into your business? If you don’t get this step done properly, once the problem has walked through the door it takes a lot of effort to get them out. Ensure that your recruitment process is not a flat process and that you use competency-based questions to determine if the candidate is the correct fit for your business. Do all the necessary reference and background checks. Please don’t rush recruitment out of desperation and get the wrong person you will suffer in the long run.
  9. Training
    Upskill your staff, research shows that in an environment where training occurs staff are happier and more fulfilled. Analyse training needs, conduct a skills audit for each staff member, make sure you align these to your business objectives and ensure that training assists in addressing the employee’s performance gaps.
  10. Workplace Skills Plans Annual Training Reports
    If you are a business that pays over R500 000 in salaries per annum you are required to pay 1% of your annual payroll in skills levies. Many businesses overlook submitting an annual Workplace Skills Plan and Training Report thus not being able to claim back the 20% of their annual levies in the form of a mandatory grant, further to this by completing your submission you may have access to what they call a discretionary grant where you can access learnerships, apprenticeships and other skills programmes which have huge tax incentives and benefits to an employer. The business community is currently taking legal action against Minister of Labour and Employment and we might see the mandatory grant percentage increase to its original amount of 50% of all skills levies paid. Would you want to lose out on getting these funds back?

Should any of these factors resonate with you and you would like to chat about these or explore them further please contact me.

Heres to productive, profitable and happy workplaces in 2020.

Labour Law

Your company brand is one of your most valuable assets, being what creates the emotional connection that attracts customers and clients back to your business time and time again. Your employees are at the forefront of your business and it is in your best interest that you ensure that your brand is projected to your clients in a consistent manner.

This may seem like an overwhelming statement. So how is this achieved?

Your company brand is one of your most valuable assets, being what creates the emotional connection that attracts customers and clients back to your business time and time again. Your employees are at the forefront of your business and it is in your best interest that you ensure that your brand is projected to your clients in a consistent manner.

This may seem like an overwhelming statement. So how is this achieved?

Define your brand and collaborate

Your brand is your distinguishing characteristic, it is the “how” of what you do. Many of your competitors can do exactly what you do, what attracts your customer is how you do things differently. Your first objective is to define your core values and decide how this is going to be expressed in behaviour. Collaborate with your team, having their say is important for employee buy-in if they are part of the creation process they are likely to stay committed. Define your objectives, conduct a SWOT analysis of current practices identifying which behaviours support your brand and which do not. Develop key behaviours that are both acceptable and unacceptable to the brand and communicate them to your team and make them visible to ensure constant reinforcement.

Lead by example

You will never get to your intended goal if you do not lead your staff to the goal. Live and breathe your brand values, display the appropriate behaviours and reinforce them whenever you can. Recognise staff for implementing your brand values. Launch your brand behaviours in a fun and exciting way.

Recruitment

A vacant position always means one pair of hands too little within the workforce, however, don’t rush recruitment just to alleviate the pressure. Take your time when recruiting, conduct your recruitment process based on your values. Recruit candidates that display your brand values, it is easier to enlist these values than to teach theses value to an employee.

Safe environment

Create a psychologically safe environment, where individuals feel free to speak up and address issues honestly. Holding the team accountable is very important. Having defined behaviours allows team members to create an identity and sense of community and the ability to address issues that may not be in line with your brand.

Compliance

Set your company policies and procedures up to reflect what your brand stands for and to support the desired behaviours. Acknowledge at the outset that not everyone will walk the journey of your brand and some people will be lost due to not identifying with the brand or due to the consequences of non-compliance.

Measure and revisit

Always measure the impact of change in your workplace, identify what is not working and tweak your process to remain aligned with your brand values and goals.

Good Luck, this is an exciting process. If you would like assistance facilitating the above process please do not hesitatte to contact me.

Labour Law

As employers, the obligations in terms of pregnancy extend far beyond the mere affording your employees maternity leave. The employer has an onus to provide a discrimination-free and safe working environment for their pregnant employees. I urge all employers to familiarise themselves with these obligations as overlooking these might have you held liable for any issue arising from employment that may have affected the mother or baby’s health.

Discrimination and Pregnancy

In terms of the Employment Equity Act, the employer may not discriminate against an employee on any arbitrary grounds. Pregnancy or the intention to fall pregnant or adopt a child may not be used as criteria to distinguish between the employee and other employees this will definitely be an arbitrary ground.

An example where such discrimination may occur is during the recruitment process whereby a prospective employer asks questions pertaining to the employee being a mother or intention of falling pregnant. It is advisable that the prospective employer does not enter this territory of discrimination. The asking of these questions could lead to allegations of using the arbitrary ground as a selection criterion, and this may lead to major legal repercussions. Taking a decision to not to appoint a candidate solely on the fact that she is pregnant or has the intention of becoming pregnant is discriminatory and could again land a prospective employer in hot water. My advice is to steer completely clear of any pregnancy and motherhood related questions and to stick to the candidate's ability to fulfil the job and all objective job requirements criteria set out in the job advert or job description.

Whilst an employee is within the employ of an employer the employer may not discriminate against the employee’s intention to become pregnant. Should an employer dismiss an employee for becoming pregnant this will be regarded as an automatically unfair dismissal in terms of section 187 (1) of the Labour Relations Act.

The failure to promote an employee based on her pregnancy will be deemed an unfair labour practice. Again, take heed, base your decisions on objective and justifiable criteria and always document the reasons behind decisions to ensure that you are covered in the case of allegations of discrimination.

Pregnancy in the Workplace

The employer is obliged to create a safe workplace for employees, and even more so when the employee is pregnant. The employer is to undertake a risk assessment of the pregnant employee’s role and determine if there are any hazards that might affect the employee.

Should the employee’s job be deemed hazardous and have possible effects on the pregnant mother and baby’s health, the employer is to find an alternate position for the employee for the duration of her pregnancy. The employer is to assess the biological (exposure to any disease or biological waste), chemical (hazardous or cancer-causing chemicals) and ergonomic factors (such as heat, standing for long periods of time or lifting of heavy items), that may pose a risk to the employee and unborn child.

Employers should also take cognisance of circumstances such as morning sickness and fatigue and support the employee and have an understanding that the employee’s performance may be affected by such factors.

The employer is to document any notification of pregnancy. In many cases, the employee is scared to disclose her pregnancy to the employer. As the employer you should encourage a culture of disclosure so that you are able to support the employee during her pregnancy.

Maternity Leave

In terms of the Basic Conditions of Employment Act, a female employee is entitled to four months unpaid maternity leave, one month before the baby is born and three months after the birth of the child. Employers may increase, but not decrease maternity leave if they so wish, without consulting a medical practitioner. The employee may also provide paid maternity leave if they so wish.

If you deviate from the law in terms of maternity leave, it is advisable to draft a maternity leave policy covering all factors and rules regarding maternity leave within your company. In many circumstances due to maternity leave being unpaid, employees try to shorten their maternity leave. A word of caution should the employee want continue to work within the four weeks preceding the birth of the child, she is to obtain a certificate of fitness from a medical practitioner. The same applies should employee wish to return to work within 6 weeks of the birth of the child.

Do not engage in any periods of shortening maternity leave without the consent of the employee's medical practitioner and make sure that you have written consent of this from the employee as well should any issues arise from taking such decisions.

Should an employee experience a stillbirth or miscarriage in the last trimester of her pregnancy regardless of whether she was already on maternity or not, the employee is entitled to six weeks maternity leave from the date of the miscarriage or stillbirth. This is a highly traumatic event and the employee should be allowed space and time provided in this maternity leave to deal and work through the trauma.

Also, as the employer take cognisance of such matters, such trauma does not heal in six weeks and they may need support, monitoring and time off for counselling. My suggestion, however not documented in law, that the employer is accommodating in such circumstances. In the event of an employee adopting a child under the age of two, she will be entitled to ten weeks maternity leave from the date the child is placed in her care should the adoption proceedings not be finalised yet, or from the date of adoption.

Breastfeeding

Should an employee be breastfeeding a child under the age of six months, the employer is again to ensure that they do not expose the mother to any hazard that could affect her or her breastfed child’s health. The employer is to also allow the employee two thirty-minute breaks to either breastfeed the child (in circumstances where a child is allowed on the employer’s site) or two thirty-minute breaks to express milk for the baby.

As employers, take note of your obligations in terms of a pregnant and breastfeeding employee. Besides for the employee’s health, an act of negligence by the employer could lead to litigation and could lead to emotional scarring for the employee and a strained employment relationship going forward.

Labour Law

One of my previous managers always said that HR is the “poor cousin” within the business context. Business owners and managers have so much to focus on: customers, the service or product they provide and of course the bottom line.
Many business owners are all consumed by these factors forget that their people directly impact the very factors they are trying so hard to control.

Imagine your business as a heap of gold - your asset. You obviously do not want your heap of gold to diminish and very much want your heap of gold to grow. Put an employee in the mix and your heap of gold may be at risk. Why you may ask?
As an employer, you have certain legislative requirements to abide by, and non-compliance can be costly, you will be answerable to the statutory watchdogs being the Department of Employment and Labour, the CCMA, the courts and SARS.

The other risk is to place “your heap of gold” in someone else’s hands. Your heap of gold may be at risk of diminishing or even disappearing. It is important as a business owner or manager that you find the right match in an employee who will share your vision and grow your asset. Business owners must develop and nurture the employee and enhance workplace relationships to be able to grow your asset.

The function of HR is to mitigate any risk and help managers to grow, manage and develop their employees.

How then does HR add value to the company?

  • Legal Compliance:
    HR professionals act as advisors. They understand the requirements of the law and how to practically implement measurements to comply with employment law within a business context.
    HR professionals are also aware of which type of business needs to comply with which statutory submissions. These include Workplace Skills Plans and Reports to SETA, Employment Equity Reports, COID registrations, and the drafting of employment contracts in accordance with the law, relevant to the specific sector a business operates in.
  • Recruitment:
    An HR professional is trained to match a candidate to a role, as well as the ability to interview on a deeper level than most managers, to determine if a candidate is a good fit for the business and the goals set out for the position.
  • Discipline in the workplace:
    Discipline is always a difficult topic, laden with a lot of emotion as well as the influence of established relationships in the workplace which make the application of discipline especially difficult in smaller businesses.
    HR Professionals are able to see the matter in black and white and remove grey areas. The HR professional will interpret the employee’s actions and determine the necessary action to be taken free of bias whilst evaluating the action to be taken against best practice and case law. The HR professional will then advise the employer how best to act in a specific situation to avoid a CCMA case going horribly wrong and ultimately costing the employer money.
    Success at the CCMA starts with the first disciplinary action taken against the employee and not necessarily the last action. The procedure is key and a professional will walk the employer through the disciplinary process.
    Where an employer feels unsure of how to proceed with disciplinary action, the HR professional can assist with investigating a matter, drafting charges, or acting as a chairperson in a disciplinary hearing.
  • Policies and Procedures:
    By drafting fair and legally compliant policies and procedures HR Professionals can assist in creating clarity and direction in the workplace.
    Policies and procedures provide structure in the workplace and clearly communicate the expectations of employee’s, uncertainty is eliminated the appropriate behaviour and productivity is encouraged.
  • Training, Coaching and Mentoring:
    Relationships are critical in the workplace, the healthier workplace relationships are and the happier the environment the greater productivity and business growth will be. HR professionals can identify issues with relationships, be it management styles or employee behaviour and give managers the necessary tools to facilitate improved relationships. Labour Law HR professionals also assist management and staff to develop their soft skills and communication in order to improve their personal interactions.
  • Other Benefits:
    HR professionals can also assist with workplace skills plans and annual training reports to the relevant SETA this will allow businesses to recoup 20% of the annual amount they pay towards skills development levies.
    The submission of the workplace skills plan, and annual training reports further open the door for employers to apply for learnerships, if applicable and if funding is available, thus creating tax breaks for businesses.
    If a business is undergoing a BBBEE verification, an HR professional can assist with drafting the necessary employment equity report or skills plans and supporting documents which are required for verification purposes.

In short, poor staff management practices will cost you money, an HR professional can assist you to avoid risk and increase productivity - ultimately improving your bottom line and customer experience, which is what business is about anyway.
If you want to grow your heap of gold get, don’t hesitate to contact me for specialized solutions.

Labour Law

As an employer you are filled with a sense of dread and butterflies as the notice to attend the CCMA lands on your table. What now? How do I present my case? What have I done wrong? What do I say to the Commissioner?

Firstly, as I tell my clients it is not an indictment on your employment practices that a dismissed employee will go to the CCMA. Referring a matter to the CCMA is the employee's right, it's free and is usually the employee's last bite at the cherry to save his or her job. Secondly, there is nothing you can do to change the circumstances that have led up to the matter being referred to the CCMA, what's done is done, it's how you have carried out your disciplinary process and hearing that counts the most.

    So how do you as an employer prepare for a victory at the inevitable CCMA case?

  • Be aware that the burden of proof in an unfair dismissal matter is on the employer, prepare your case well.
  • Understand the CCMA processes being Conciliation, Arbitration, and the Con-Arb processes.
  • At the disciplinary investigation as well disciplinary hearing stage, keep emotion out the process and avoid becoming threatening or engaging personal attacks.
  • Allow the employee to be heard in the form of a hearing.
  • Provide at least 48 hours notice prior to a disciplinary hearing taking place
  • Ensure the employee understands the charge and the context of the hearing
  • Adhere to your disciplinary code and processes
  • In a small business, where very close relationships exist the lines can be blurred, which can lead to bias, get an impartial outsider who is qualified to chair the hearing to do so.

The battle at the CCMA is already won if you have conducted the dismissal in accordance with legislative requirements.

The Commissioner will automatically try to resolve the matter through conciliation, trying to reach a compromise between parties by either seeking re-employment, reinstatement or financial compensation on behalf of the employee.
In my opinion, if an employer has ensured procedural and substantive fairness during the dismissal process - why compensate or accommodate an employee who has committed a dismissable offense?
Continue through to arbitration and defend your actions and secure victory.