Tips when faced with employment issues

Some people live in constant fear of being fired. Who is going to pay for the bond, the car, the children’s school fees, etc.? What if my boss has a bad day and decides to fire me at the drop of a hat? If it can happen in The Devil Wears Prada, it can probably happen to me, too…?

The good news: South African Labour Law favours reasonableness and (more often than not) the employee. A fair dismissal means two things. Not only must a dismissal be substantively fair (in other words for a good reason), but it must also be procedurally fair. This is where most employers falter: the dismissal was for a good reason but was done in an incorrect/ unfair manner! This could lead to the CCMA or Labour

Court ordering your reinstatement, compensation paid to you or even both!

Procedurally speaking, the process is normally as follows: verbal warning, written warning, final written warning and then … dismissal. Only in extreme cases (assault or gross negligence, for example) may an employer skip a few steps and opt for a dismissal. Between each of the aforementioned steps, however, another important protector-of-the-employee lies: the disciplinary hearing. Remember that the outcome of a disciplinary hearing can be a verbal warning, written warning, final written warning or dismissal in serious cases.

5 Tips when faced with that ‘Notice to attend a Disciplinary Hearing’ document:

1. Request the formal written complaint that led to the disciplinary enquiry in the first place. This will help you prepare a proper defence. The formal written complaint will go into a lot more detail than the few sentences you’ll find in the ‘Notice to attend a Disciplinary Hearing’ document, which typically merely lists the charge(s) against you in a sentence or two. Note that you have a right to the formal written complaint, however, employers often fail to attach it to the ‘Notice to attend a Disciplinary Hearing’ document.

2. Ask whether you may bring in a legal representative. Most employers will, however, decline as they also have the freedom to do so. Your next best bet is a union representative or a colleague. You do have the right to be represented by a fellow worker. At the very least, use any colleague to sit in and take notes and write EVERYTHING down. This will serve you well should you take the matter to the CCMA at a later stage.

3. Make sure that the Chairperson is someone outside the organisation and does not work for/ follow demands of the complainant (person whose formal complaint led to the disciplinary enquiry against you).

4. Use the formal written complaint to prepare your questions to the complainant and his/her witnesses in advance. The complainant and his/ her witnesses should state their case first, providing you the opportunity to cross examine the complainant’s witnesses.

5. Make a special note of the time it takes for the Chairperson to come to a conclusion. Did the Chairperson take enough time (preferably a few days) to consider all the evidence or did the Chairperson perhaps have a preconceived outcome in mind? Remember that the Chairperson must use the evidence presented by the two parties (you and the complainant) to determine your guilt on a balance of probabilities. Your previous work record/ written warnings/ compliments/ mitigating factors are excluded from this decision and only come into play after the Chairperson is convinced of your guilt and before the Chairperson decides on a proper sanction (written warning, final written warning, dismissal).

One last thing, remember your rights when it comes to a disciplinary hearing. Note that these rights must be provided to you in writing prior to the hearing. Make a large note of it if this is not the case!

You have the right to:

a. Be present at the hearing. If you fail to attend the hearing, the matter needs to be postponed to a new date. If you are then, however, absent once more, the enquiry may proceed in your absence;

b. Have enough time to prepare your defense against the charges;

c. Be represented by a colleague of your choice or by a shop steward/ union official;

d. Ask as many questions as you wish, cross examine the witnesses called by the complainant and also to have witnesses of your own present and ready to be asked questions;

e. An interpreter if necessary;

f. Appeal the decision of the Chairperson internally before proceeding to the CCMA.


* Attention all Legal Hero Policyholders: please contact us the moment your receive a notice to attend a disciplinary hearing. Dial 0861 22 99 22 and select voice prompt 4. 

Seven Interesting Truths about Polygraph Tests

1. There is currently no law specifically regulating polygraph (lie detecting) tests in South Africa!


2. Some employers make use of polygraphs to test the honesty of employees after company property has gone missing or after alleged misconduct. A few employers even request pre-interview polygraph testing!


3. Polygraph tests involve electronic sensors placed over the chest, abdominal and finger to measure respiratory, sweat gland, cardiovascular and blood pressure activity whilst the examinee responds to certain questions.


4. Remember that the outcome of a polygraph test may NOT be the sole reason for a dismissal (reference: Sosibo & Others). It may therefore only count as an aggravating factor to support other evidence against the employee.


5. A person who performs a polygraph test, called a polygraphist, can testify in court as an expert witness to support an employer’s claim against an employee. A polygraph test will cost the employer about R500.00 – R2 000.00+, excluding traveling fees.


6. Furthermore, for the outcome of a polygraph test to be permissible in court, the employer has to comply with a few strict rules:

a) The employer needs the employee’s written consent;

b) The employee’s refusal to undergo a polygraph test does NOT amount to an admission of guilt.
c) The polygraph questions may not be not be vague or misleading;
d) The questions should be explained to the employee prior to the test;
e) The employee has the right to an interpreter during proceedings;
f) The employee has the right to have a colleague/ another person present;

g) The outcome of the polygraph test is confidential and may only be released to the examinee or an authorized person.


7. How accurate is a polygraph test? According to a very recent study (2015) conducted by the American Polygraph Association, a polygraph test is about 86% accurate! There are, however, many who disagree with the admissibility of this statistic and who argue that polygraph testing is subject to far too many variables.


Wishing you a fantastic day,

Legal Hero 

www.legalhero.co.za 

How do I claim unpaid salaries from my employer?

Question received via freeadvice@legalhero.co.za: 

Hi, Im working for a construction company as a manager.
The company owes me december,january, march and april salaries.
I lost because of not paying my debts. Can you please advise me on what steps to take so that i dnt lose the money im being owed and must the company pay me interest because of late payment?

Dear writer

We are awfully sorry to learn of your misfortune and are happy to offer some basic advice on what can be done to secure your salary and receive your dues.

1)      Department of Labour and not the CCMA/ Bargaining Counsel:

Many people make the mistake of taking the matter up with the CCMA or their Bargaining Counsel. However, as a general rule, all money related matters such as unpaid salary, overtime pay, leave pay, etc. are referred to the Department of Labour.

This is your best option as the Department of Labour offers assistance free of charge. The aforesaid is, however, not an option available to you if you are in senior management and/ or earn more than R205 443.30 per year. This monetary threshold is revised from time to time by the Minister of Labour and published in the Government Gazette.

Should you qualify, the Department of Labour will appoint an Inspector to investigate your complaint of nonpayment, contact your employer and possibly issue your employer with a compliance order ordering payment plus interest by a certain date. In terms of section 70 of the Basic Conditions of Employment Act, you need to inform the Department of Labour of your unpaid salary/ salaries within 12 months.

2)      Going to Court:

Employees can also claim an unpaid salary via the Small Claims Court provided the outstanding salary does not exceed R15 000. The Small Claims Court is free of charge, no legal representation is allowed and the authority of its order is equal to that of a Magistrate’s Court. Visit the Magistrate’s Court in your area and speak to the Clerk regarding the Small Claims Court and a Section 29 Letter of Demand, as each Magistrate’s Court also acts as a Small Claims Court. Going to Court is also the route to take if you were an independent contractor (and not an employee).

Should the monies plus interest owed to you be in excess of R15 000, the matter must be heard by the Magistrate’s Court. You will, however, need a lawyer to assist you with the relevant court documents and procedures.

Your lawyer could also decide to take the matter to the Labour Court. Your employer will receive notice of this application and may decide to oppose the matter or not. Once the Labour Court is convinced of your case, it can issue an order instructing your employer to pay all outstanding monies to you before a certain deadline.

For some the battle does not end here. Should your employer fail to pay in terms of the court order, one needs to go back to court! What often happens next is that the Sheriff will come knocking to draw up a list of all the employer’s assets to be sold in execution in order to cover your unpaid monies.

3)      Interest:

In terms of section 75 of the Basic Conditions of Employment Act, an employer must pay interest on any amount due in terms of the Prescribed Rate of Interest Act. The aforesaid act has recently been amended. Prior to 1 August 2014 the interest rate was 15.5% per year but this has now been changed to 9%.

Remember that an employer only has a grace period of 7 days to pay employees in terms of section 32(3) of the Basic Conditions of Employment Act. Once your salary is more than 7 days late, we advise employees to take the matter up internally by filing a grievance and discussing the matter with senior management.

Should the aforesaid fail, you next step would be to either file a complaint of nonpayment at the Department of Labour should you qualify, alternatively, contact a private attorney/ your legal cost insurance company to get the ball rolling with regards to letters of demand in order to pursue a Civil case.

Lastly, but very importantly, remember that a Civil claim (money claim) prescribes/ expires/ becomes invalid within 3 years since payment/ acknowledgement of the debt provided no legal action was instituted. This means that your unpaid December 2014 salary will prescribe in December 2017. After December 2017 your employer can raise the defense of prescription and you will lose the December money owed to you! We therefore advise that you take action as soon as possible.

We hope this helps and sincerely wish you all the best with this endeavour.

Kind regards,

Legal Hero

www.legalhero.co.za

Victimization in the workplace

Notes:

While you have 90 days to refer an unfair labour practice to the CCMA, you only have 30 DAYS to refer an unfair dismissal.

Chapter two of the Employment Equity Act also sets out a few practices that could amount to victimization (preventing employees from joining trade unions or preventing employees from engaging in union activities, prejudicing employees due to a legitimate disclosure, bribing employees not to exercise his/her rights in terms of the Labour Relations Act, etc.).

Have a look at section 5, 185 and 186(2) of the Labour Relations Act (unfair labour practices that could amount to victimization).

Wishing you an empowering Tuesday,

Legal Hero

wwww.legalhero.co.za  
0861 22 99 22
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Unlawful Deductions - Labour / Salary

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.

www.legalhero.co.za 

One of life's villains: being dismissed/ retrenched

It’s a nasty feeling, especially if you have reason to believe that the dismissal was unfair. Did you know that about 100 000 cases were referred to the CCMA last year? Legal Hero saves the day by arranging CCMA/ Labour court representation for its policyholders (no excess fees when claiming).

Free tips:

• An unfair dismissal must be referred to the CCMA within 30 days.
• The CCMA procedure entails two 'hearings:'

a)      Conciliation (where no legal representation is allowed and the presiding officer only makes suggestions);

b)      Arbitration (legal representation is allowed and the arbitrator makes a binding order).

• For a dismissal to be fair, it must be both substantively and procedurally fair. Substantive fairness means that a valid reason was proved by your boss (misconduct, incapacity or operational requirements). Procedural fairness means that a fair procedure was followed (warnings, disciplinary hearing, etc.).
• At a disciplinary hearing, the employee has the right to:

a)      Be present (the employee needs to provide the employer with a reasonable excuse for postponement);

b)      Bring his/her own witnesses;

c)       Request an interpreter;

d)      Not have the person with whom there is conflict chair the hearing;

e)      Question and cross-examine the witnesses relied on by the employer;

f)       Make reference to mitigating factors (first offence, apology, only breadwinner, years of loyal service to the employer, etc.).

• If you have been retrenched, you may visit the CCMA for conciliation (no binding order) but the matter may proceed to the Labour Court for a binding order.
• A dismissal is automatically unfair if it is due to discrimination on race, sex, religion, etc. Similar to retrenchments, one may approach the CCMA BUT for a binding order the matter must proceed to the Labour Court.
• Unlawful deductions from your salary by your employer OR outstanding salaries must be referred to the Department of Labour in your area (and not the CCMA). 

Knowledge is power. 

Legal Hero

www.legalhero.co.za 

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.