ee/er: The Nature of the Employment Relationship

Marleen Potgieter

May 2009

Nov 2004 2

Contents

Nature of employment relationship

Underlying laws

Discipline – Rules and Standards

Code of Good Practice/Policies

Poor Work Performance

Conclusion

01

02

03

04

05

06

Nov 2004 3

The Nature of the Employment Relationship

Nov 2004 4

Employment Relationship

Law of master and servant

Contractual relationship

Independent Contractor vs Employee

Fairness and Equity

Nov 2004 5

Underlying Law

Nov 2004 6

The Big Five

The Labour Relations Act

The Basic Conditions of Employment Act

The Employment Equity Act

The Skills Development Act

The Occupational Health & Safety Act

Nov 2004 7

The Labour Relations Act [LRA]

Supercedes all other Acts (except Constitution)

Code of good practice - guidelines on fair labour practice

Trumps all employment contracts

Employment contracts provide a structure only

Nov 2004 8

LRA (cont’d)

Contracting out of the LRA by collective agreements

Benefits better than those provided for in the Act

LRA ensures fair labour practice in collective bargaining and terminations

Disputes referred to the CCMA/Labour Court

Nov 2004 9

LRA (cont’d)

Individual rights to fair labour practice

Dismissals for misconduct/incapacity (poor work performance and illness)

and operational requirements (retrenchments or redundancies)

Substantive and procedural fairness

Nov 2004 10

Code of Good Practice

Nov 2004 11

Introduction (cont’d)

Fair procedures, clear communication of standards, consistently applied:

• The Rule

• The Knowledge

• Consistency.

Employees must feel safe in the work environment. Such security is created

in two ways:

• firm and fair standards

• an environment conducive to raising problems

Nov 2004 12

Discipline

CONSTRUCTIVE APPROACH:

encourages supervisory capacity of management

promotes understanding and acceptance of rules

employees buy into the process

Nov 2004 13

Discipline

PROGRESSIVE APPROACH

implies that discipline progresses from one level to another

graded system of disciplinary measures

Nov 2004 14

LRA Code of Good Practice

There are 3 grounds for dismissal:

Misconduct Incapacity

Operational

Requirements

Nov 2004 15

LRA Code of Good Practice

Disciplinary measures short of dismissal*

Disciplinary rules - according to size of business, and the circumstances

Standard of conduct must be set

Certainty and consistency

Communicated to employees

Misconduct

Nov 2004 16

DISPUTES

Misconduct/Incapacity:

- CCMA/Conciliation; Con/Arb; Arbitration

- Labour Court by agreement/complex matters

Unfair Discrimination/Strikes:

-Labour Court

Nov 2004 17

CCMA/Labour Court

What is the CCMA – informality/form of address/Code Of Ethics of

Commissioners

Describing the Labour Court – concurrent jurisdiction with the High Court

Labour Inspectors

Form of address

Nov 2004 18

Dismissal for Misconduct – How Do We Do It?

Necessity of discipline - creates certainty

Awareness of rules - communication

Where are they found? Some self - explanatory/ some in various policies

and daily instructions

Transgression - act/omission corrective action

Fairness/equity/reasonableness

Each case based on its merits

Management responsibility and prerogative

Nov 2004 19

Poor Work Performance

Clear job specs - standard must be set

Step1 - evaluation

Step2 - communication of shortcomings

Step3 - period of time to improve +

guidance/counseling/training/mentoring

Step4 - investigation

Step5 - outcome

termination on notice - no-fault dismissal.

Nov 2004 20

Basic Conditions of Employment Act (BCEA)

Minimum requirements, as the name implies

Regulates leave, sick leave, hours of work, overtime etc

Cut-off threshold for overtime R 149 736 per annum

- Senior managerial employees

- Sales staff who travel to the premises of customers and who

regulate their own hours of work

- Employees who work less than 24 hours a month for you

- Employees who earn more than R149 736 per year (this amount

can be changed by the Minister from time to time)

Nov 2004 21

Occupational Health And Safety (OHSA)

For all businesses, not just factories

Employees have to take certain responsibility for their own safety

Need a safety committee for all employees more than 50

Most accidents happen because of horse-play and carelessness

Nov 2004 22

Employment Equity Act –

balancing rights

Nov 2004 23

Employment Equity Act (EEA)

Has two important Chapters: Chapter II and III.

It is a constitutional act – has its origin in the Constitution of SA

Chapter II applies to all employers – Chapter III only to designated

employers and employees.

Nov 2004 24

Unfair Discrimination

Fair and Unfair discrimination

When can we discriminate?

Ensuring understanding in the workplace

Unfair discrimination

Nov 2004 25

Unfair Discrimination

Chapter Two of the Employment Equity Act – eliminates unfair

discrimination

Most unfair discrimination is indirect

Due to our socialisation process

Create awareness of indirect discrimination

Promote Equality

Nov 2004 26

Understanding Discrimination

CH2 Prohibition of Unfair Discrimination

“S6(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including 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.”

Nov 2004 27

Structure of the Act

CHAP TE R IIP ROHIB ITION:UNFAIR D IS CRIM INATION

AUDIT OF P OLIC IE S & P ROCE DURE SNE W / AM E NDE D P & P

CONS ULTATIONANALY S IS

P LANRE P ORT

CHAP TE R IIIAFFIRM ATIV E ACTION

AA M E AS URE S

E E A

Nov 2004 28

Recognising Skills

What is Affirmative Action?

Retention and Development

Identifying and removing barriers

Promoting Diversity

Training and Development

More than just number crunching

Nov 2004 29

EE Compliance Checklist

Have you audited your environment – are you risk free from an unfair

discrimination perspective?

Do you have the Summary of the Act displayed?

Have you trained your staff?

Do you have an EE Forum

Is a senior manager tasked with EE? Is it in their KPA’s

Have you done an EE Plan through a consultation process?

Did you submit an EE Report?

Nov 2004 30

Summary of Principles

Employees:Protected from Arbitrary Action of Employers

Employers:Satisfactory Conduct &Performance from Employees

Mutual Respect

Fairness

Efficient Business Operations

Sets Ground Rules

Establishes Clear Expectations

Prompt. Fair, Consistent

Progressive &Corrective Discipline

Facts of Each Case

Nov 2004 31

Compliance requirements

Employment Contracts

BCEA – minimum hours and overtime

Disciplinary Codes and Policies and Procedures

Standards of performance – what is expected of employees

Good Practice: Performance Contracts

Fair procedure always (paper-trail)

Probationary periods

EE – BEE

Removal of Unfair discrimination

Nov 2004 32

For the Tourism Industry

Hot-spots are:

Long working hours and an industry under the spot-light

Overtime pay

Unfair Discrimination issues

Not knowing exactly what our rights and obligations are

Complying with the BEE Charter

Sloppy employment contracts

Free-lance employment and ‘casuals’