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Most working people are aware that in the event of an employment-related dispute, various forums such as the CCMA, bargaining councils and the Labor Court can be approached for assistance.

Most working people are aware that in the event of an employment-related dispute, various forums such as the CCMA, bargaining councils and the Labor Court can be approached for assistance. More often than not these forums must be approached within a specified time, otherwise the right to pursue the cause of complaint lapses. In the event that employees are out of time to refer their dispute to the relevant forum they always have the option of applying for condonation for the late referral of a dispute. Condonation means that the delay in referring the dispute is excused or forgiven and the dispute is processed as if it were received in time. Condonation is never automatically granted but is within the discretion of the forum or person adjudicating the dispute, ie the commissioner or judge. In deciding whether to grant condonation the adjudicator will take the following into account: the degree of lateness, the reasons and explanation for the lateness, the prospects of success and any likely prejudice to the parties in the dispute. The degree of lateness relates to the amount of time by which the referral is late. It is important to show that the length of the delay is not excessive. Whether or not the delay is excessive will be determined by the facts of each case, as there is no fixed or specified period or set threshold by which to judge whether the delay is excessive. When applying for condonation it is imperative to give valid reasons and a believable or convincing explanation for the lateness of the referral. The explanation must be good enough to offset the delay in referring the dispute. In Moila v Shai NO & Others (2007) 28 ILJ 1028 (LAC) the Labour Appeal Court has held that there is no need to even consider the prospects of success, and condonation may be refused in the event that the degree of lateness is excessive and no convincing or believable explanation is given to explain the delay. The requirement that there be good prospects of success means that the applicant must show that, if condonation is granted, there is a good chance of being successful on the merits of the matter. In the event that there are no prospects of success in the matter or the prospects are poor, it is unlikely that condonation will be granted. The applicant in a condonation application is also required to show that the other party to the dispute will not be prejudiced by the late referral. The applicant should also show that, should condonation not be granted, he will suffer prejudice. The person who is considering the application is required to balance the competing legitimate interest of both parties in determining the issue of prejudice and will weigh up the one party’s right to have the matter finalised and the other’s right to have their complaint resolved. Therefore in light of the above, in order to successfully apply for condonation an applicant must deal with the degree of lateness, the reasons and explanation for the delay, the prospects of success and the potential prejudice to the parties. The adjudicator is then required to exercise his or her discretion weighing up all the necessary factors to decide whether condonation should or should not be granted. ABOUT THE AUTHOR: Lavery Modise & Jean Ewang Lavery Modise is deputy chairman of Eversheds, South Africa and heads up the firm’s employment law department. He is one of the top labor lawyers in the country, who has represented trade unions and several large employers. As a litigation attorney, he has represented clients in all South African courts up to the Supreme Court of Appeals. He acts as arbitrator and mediator in labor related matters and has also acted as a judge of the Labor Court from time to time. At present he is the chairperson of the General Public Service Sectoral Bargaining Council.

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Suspension of the accused


When should an employee, who is under investigation or perhaps pending a disciplinary hearing, be suspended from duty?

Remember that it is not only the accused who may be suspended.  You may wish to also suspend witnesses, perhaps for their own protection.

Under what circumstances may you suspend?  The answers to these questions are important, because suspension must be fair – and the employee is entitled to challenge a suspension that he/she feels is unfair.

Generally, suspension would be justified under the following circumstances:

  • If the accused is likely to interfere with witnesses
  • if the accused is likely to tamper with evidence
  • if the accused is likely to retaliate in some way against the complainant, or in fact if the complainant is likely to retaliate in some way against the accused, perhaps with violence. 
  • This applies particularly if the employee has laid a complaint against a higher level employee.
  • The seriousness of the offense must be considered, for example to not suspend in a case of sexual harassment would be absurd.
  • If the employer suspects that the alleged offense may be repeated if the accused is allowed access to the premises, suspension may also be justified.

Remember that in all cases, the suspension may only be without loss of benefits to the employee and it must be fair under the circumstances.

However thought must also be given to questions like “if the employee is suspended, is he/she likely to use the opportunity to abscond?”

In the case of theft or fraud, this may be a very important consideration, and you may have to consider charging the accused criminally to prevent him/her absconding.

Also ask yourself the question “do I wish to possibly lose control over my prime suspect?”

Remember that during the investigation you are fully entitled to interview the accused and asking for a written statement in response to the allegations, or ask for any other information he may have that could assist in the investigation. This of course with the proviso that the accused employee is prepared to cooperate with you on such matters – there is no law stating that he must cooperate.

It is rather silly to suspend for cases like unauthorised absenteeism for example, or for some other minor infringement of company rules.  There was the ridiculous case of an employer who suspended an employee for two weeks pending a disciplinary hearing because the employee was six minutes late for work on two consecutive days.

Such a suspension is totally out of line.

Suspension pending a disciplinary hearing can only be with full pay.

In all cases, the suspension notice must be in writing and the reason for the suspension must be stated.  It must be stated that the suspension is without loss of benefits, and the duration of the suspension must be indicated.

Unfair suspensions fall within the definition of “unfair Labour practice” as per section 186 (2) (b) of the the Labour relations act, so employers are advised to exercise caution in deciding whether or not to suspend an employee from duty.

If the suspension is for an unreasonably long period, or if it is blatantly and grossly unfair, or if there are no real prospects of the matter ever reaching the disciplinary hearing stage, the employee can refer the matter to the CCMA and seek reinstatement in his/her employment.

Example suspension letter.

Date…………………

To: Mr naughty employee

Dear naughty employee,

In the the matter of misconduct – alleged assault between yourself and Joseph Edwards (complainant).

Please note that you are hereby suspended from duty without loss of benefits, with immediate effect, until the date of the disciplinary hearing.

You will be notified in writing of the date time and place of the disciplinary hearing, and also you will be notified in writing in the event that the suspension period is to be extended beyond that date.

The reason for the suspension is because in the opinion of management, your continued presence at the workplace may be detrimental to the proper investigation of the matter in terms of preservation of evidence.

Yours faithfully,

In addition to the above, the employer will also hand to the employee a letter along the following lines, whether he/she is suspended or not:

Date ……………

Dear accused employee

In the matter of misconduct – alleged assault between yourself and Joseph Edwards (complainant).

You are hereby notified that management is investigating the above allegation against you.

A disciplinary hearing will be held when the investigation is completed, and in the meantime you should begin to prepare your defence against the charges, so that you are fully prepared by the date of the hearing.

Your preparation should include requesting a fellow worker from your place of employment to act as your representative if you so desire.  The duty of the representative is to assist you in preparing your defence, to assist you at the hearing by assisting with the leading of your evidence, and to speak on your behalf in mitigation.  The representative may also assist you with cross-examination of management witnesses.

You should consult with any witnesses you may have who will testify on your behalf, and obtain written statements from those witnesses for submission at the hearing.

Management is entitled to receive a copy of any such a written statements before the hearing, and you are entitled to receive a copy of any written statements that management may have from a management witnesses.

However please take note that you are not permitted to question any management witnesses prior to the disciplinary hearing.

Yours faithfully

 

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ABCORLAW WILL PROVIDE YOU

DEAR MANAGER/OWNER

COMPANY INTRODUCTION:

We would like to thank you for the opportunity, appreciation and interest you put in our company and services. Kindly read thisinformation as it remains vital for your business

 Herewith we offer you not only excellent recruitment butalso TRAINING within Human Resource and Industrial relations with an add on value of CCMA, LABOUR COURTandOTHER FORUM[bargaining councils] REPRESENTATION.

 SERVICES & TRAINING

 

  1. FULL:  PAYROLL, HR & IR.

 

  1. CHAIRING DISCIPLINARY ENQUIRIES.

 

  1. ASSISTANCE TO STRIKES,

 

  1. RETRENCHMENTS AND OTHER RELATED MATTERS, ETC.

 

  1. CCMA/BARGAINING COUNSIL REPRENTATION

 

  1. LABOUR COURT REPRESENTATION.

 

  1. GENERAL LEGAL ADVICE

 

  1. WC & TAX REQUEST FOR “GOOD STANDING”

 

  1. POLYGRAPH TESTS

 

10. FORMAL INVESTIGATIONS

 

11. HEALTH AND SAFETY

 

 

Outsource your Payroll for your business, whether you have 1 or 1000 employees.

 

Advantages of outsourcing your business ‘payroll with Abcorlaw:


  1. Payslips input, calculations, submissions & recons done by qualified accountants

 

  1. Newest changes in tax tables, UIF amounts etc applied to your payroll as soon as they happen.

 

  1. All payslips are stored monthly, you only need to update with new/changed information.

 

  1. No (expensive) software or license fees payable.

 

  1. All deductions calculated per employee and paid over to SARS & Department of Labour monthly.

 

  1. All payslips, IRP5’s, return to SARS, recons etc gets uploaded under your username where it can be viewed or printed out anytime.

 

  1. Cost effective, convenient, paperless way of handling your payroll each month.

 

  1. We supply all reports to your Accountant/Bookkeeper/Taxshop Representative.

 

  1. Managing your leave, sick leave, family responsibility leave, as added value.

 

10. Verify all identity numbers of your employees.

Some interested facts regarding your business’ payroll:

  1. Did you know if you are a member of a CC you need to deduct PAYE/UIF from your salary/money you draw from the business and pay over monthly?

 

  1. Did you know if you use a casual worker for more than 24 hours in a month you need to deduct UIF from his salary, declare and pay over to department of labour, some Sectorial Determination Act makes provision for 24 hour per week, check with us first.

 

  1. Did you know that UIF deductions from employees must be declared to the Department of labour monthly on a separate form, stating details of every single employee?

 

  1. Did you know if your total payroll amount exceeds R 500,000 a year you need to pay over Skill Development Levy (SDL) to SARS?

 

  1. Did you know that if you use Abcorlaw as your partner you don’t need to know all these “tricky” laws as we will handle everything on your behalf.

 

The process would work as follow:

 

  1. Request a quote by completing the short form below. The quote will be e-mailed to you instantly.

 

  1. After you have been accepted the quote we will send you a sheet where you can create all your current employees. This sheet will be stored as your master and need only be changed monthly if your employee’s details have changed.

 

  1. This sheet with all basic employee information (e.g. overtime hours worked, salary for the month if changed from previous month, deductions etc can then be completed by you monthly and send to us.

 

  1. We do the rest; calculate tax, UIF and all other deductions. Compile payslips for each employee, complete monthly EMP201 forms and transfer money to SARS an Department of labour from your business bank account (after you have authorized it.)

 

  1. These payslips can then be personally deliver or couriered for towns outside Cape Town to reach you before payday.

 

WHY HESITATE?OUTSOURCE TODAY AND STOP RUNNING AROUND ON PAYDAY AND START RUNNING YOUR BUSINESS

You will receive a dedicated e-mail address for your payroll and fax to e-mail number, just for you to be used for payroll serviced.

FOR ONLY R45-00 PER MONTH or less after 100, NO CONSULTATION FES, TALK TO ONE PAYROLL OFFICER ALWAYS, NO START UP FEES.

We not trying to invent the wheel again, we just want to supply you with sound payroll serviced

 

 

full human resource service

Scheduled On-Site Professional HR Manager

  1. On a regular weekly schedule at your site handling all HR functions: recruitment, record keeping, performance appraisal, compensation & benefits, training, safety, employee relations and regulatory compliance.

Unlimited Professional HR Consultation & Advisement – On-Call/On-Line

  1. Provided while on-site and during all other business hours.

 

  1. Includes ESSENTIAL and STANDARDHR Product Bundles, PLUS:

Recruitment/Selection Process Installation and Management

  1. Assures effective acquisition, assessment, selection, hiring and orientation of high quality employees.

Customized Employee Handbook Revision and Compliance Updates

  1. Annual, or as needed, policy updates to assure regulatory compliance and up-to-date employment policies.

HR Administrative and Information Systems

  1. Set up and monitoring of paper and automated HR record keeping and reporting systems for compliance and HR decision making.

Management/Supervisor Training

  1. Design and implementation of customized training to assure highest quality supervision, consistent policy enforcement and employee retention.

Safety, Health and Security Program

  1. Establishment and coordination of safety policies, procedures, training, record keeping, reporting and compliance with OSHA and administration of Workers Compensation.

Organization Development Services

  1. Management and implementation of cultural development and effective organizational transition in support of evolving strategic goals.

Strategic Planning

 

  1. We provide a systematic way to access and analyze the present business or organization. This helps to stimulate innovative thinking and creative insights into all facets of the organization and it’s operations. We provide methods to develop a vision and goals for the future and the systematic planning and implementation of positive changes for continuous organizational and operational improvements.

 

Professional Search

  1. With today’s tight labor market, a shortage of skilled workers is one of corporate America’s greatest challenges. Recruitment consumes an estimated 20% of the total HR budget. Combine this with a shrinking pool of qualified prospects and you can see where this is a problem for many companies. With our highly effective team we can help you obtain the most talented and eager candidates available.

HR Outsourcing

  1. We provide the professional expertise and resources necessary to develop and fully manage the Human Resource function within your organization. This provides you with a high-value, low-cost alternative to employing professional human resource staff.

Here is how you save:

  1. Continuous FT coverage during business hours

14. No benefits cost, vacations, leaves of absence, fewer sick days, etc.

15. Development of the total HR infrastructure.

16. Database of templates, policies, procedures and forms.

17. Comprehensive HR technical resources.

The result?

  1. Reduced turnover

19. Lower labor costs

20. Greater management focus on business priorities

21. Increased employee productivity

22. Maximum ROI on your human capital

Total Reward Planning

23. Getting the most out of your people is essential to improving your bottom line. We can assist you by developing rewards programs that will motivate your staff to go above and beyond in their job duties every day. These programs provide job satisfaction and higher productivity, that will enable you to attract, motivate and retain high quality employees.

  1. Performance Based Compensation
  2. Employee Benefits
  3. Group Benefits Planning
  4. Incentive Pay Programs
  5. Executive Compensation
  6. Sales Incentives
  7. Recognition Programs
  8. Career Development Programs
  9. Performance Management Systems

Training And Development

As experienced Training Specialists, we design and deliver customized training to assure maximum development of your staff to meet business objectives. Through systematic training needs analysis, programs are designed to achieve measureable results. This comprehensive process relieves your staff of the time, effort and much of the cost of effective training while maximizing return on your training investment.

In addition, we provide access to hundreds of human resource and other online training programs.

 

 

WE CAN ASSIST IN ALL MAJOR CITIES

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Misconduct Arbitrations

The CCMA has published guidelines concerning ‘Misconduct arbitrations’ and become effective on 1 January 2012.

They are published in GG 34573: Notice 602 of 2011 dated 2 September 2011.

The relevant section of the LRA is s115(2)(g).

The purpose is stated to be:

“These guidelines are issued by the CCMA in terms of section ll5(2)(g) of the Labour Relations Act, 66 of 1995 (the LRA). In terms of section 138(6), a Commissioner conducting an arbitration must take into account any code of good practice that has been issued by NEDLAC and any guidelines published by the CCMA that are relevant to the matter being considered in the arbitration proceedings”.

“2 These guidelines deal with how an arbitrator should

2.1 conduct arbitration proceedings;

2.2 evaluate evidence for the purpose of making an award;

2.3 assess the procedural fairness of a dismissal;

2.4 assess the substantive fairness of a dismissal; and

2.5 determine the remedy for an unfair dismissal.

3 The CCMA has issued these guidelines to promote consistent decision-making in arbitrations dealing with dismissals for misconduct. It is envisaged that the CCMA will issue additional supplementary guidelines dealing with issues that frequently arise in arbitrations”.

It is pleasing to record that there is only one reference to the word “guilty” [“Mitigating factors may include pleading guilty, remorse, a willingness to submit to a lesser sanction that may reduce the chance of future contraventions of the rule, and the absence of any damage or loss to the employer”].

With regard to the word “charges” there are a few unfortunate references.

Section D dealing with the approach to procedural fairness stated:

“60 Item 4 of the Code contemplates an investigation into the misconduct that includes an inquiry, which need not be formal. The Code does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for the leading and cross-examination of witnesses, formal rules of evidence, legal representation and independent decision-making. The Code contemplates a flexible, less onerous approach. The fairness of an inquiry conducted by an employer without workplace procedures must be tested against the five requirements for procedural fairness contained in item 4″.

“Reasons for not dismissing: Has the rule been consistently applied?

100 There are two kinds of consistency required of an employer in the application of a rule and a sanction – consistency over time and consistency as between employees charged with the same contravention”.

“102 It is not inconsistent to treat employees charged with the same misconduct differently if there is a fair and objective basis for doing so”.

There seems to be one major oversight or misconception of the law.

I suggest that it is necessary to adopt a holistic approach when dealing with ‘dismissals’.

Fault, in the form of misconduct, is only relevant to the forfeiture of employee rights, such as notice pay.

Given that employers are allowed to dismiss employees for a reason related to poor performance and even based on operational requirements, why must there be ‘misconduct’ before being able to dismiss when the reason relates to conduct ?

The ILO Convention and the LRA only require a fair reason related to ‘conduct or capacity’ (not misconduct or incapacity).

The common law and the BCEA require employers to provide notice pay unless the employee breached the contract in a material respect (gross misconduct).

I intend to have more to say about the Guidelines in the near future.

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Two-tier system – what does it mean

Something to think about.

2 Responses to “Two-tier system – what does it mean – thanks to Wikipedia”

Two-tier system – copied from Wikipedia with the footnotes omitted but which can be viewed by clicking on the link shown above.

From Wikipedia, the free encyclopedia

A two-tier system is a type of payroll system in which one group of workers receives lower wages and/or employee benefits than another.

The two-tier system of wages is usually established for one of three reasons:

1) The employer wishes to better compensate more senior, ostensibly more experienced and productive workers without increasing overall wage costs;

2) The employer wishes to establish a pay for performance or merit pay wage scheme that compensates more productive employees without increasing overall wage costs; or

3) The employer wishes to reduce overall wage costs by hiring new employees at a wage less than incumbent workers.

A much less common system is the two-tier benefit system, which extends certain benefits to new employees only if their receive a promotion or are hired into the incumbent wage structure. This is distinguishable from traditional benefit structures, which often do not permit an employee to access a benefit (such a retirement pension or sabbatical leave) without having first achieved certain time-in-position levels.

Two-tier systems became more common in most industrialized economies in the late 1980s.

They are particularly attractive to companies which have high rates of turnover among new hires (such as retail) or companies which have large numbers of high-wage, high-skilled older workers due to retire soon.

Trade unions generally seek to reduce wage dispersion (the differences in wages between workers doing the same job). Not all unions are successful at this. A 2008 study of collective bargaining agreements in the United States found that 25 percent of union contracts surveyed included a two-tier wage system. Such two-tier wage systems are often economically attractive to both employers and unions. Employers see immediate reductions in the cost of hiring new workers. Existing union members will see no wage reduction, and the number of new union members with lower wages is a substantial minority within the union and subsequently unable to negatively affect ratification votes.

Unions also find two-tier wage systems attractive because they encourage the employer to hire more workers. Some collective bargaining agreements contain “catch-up” provisions which allow newer hires to advance more rapidly on the wage scale than existing workers so that they reach wage and benefit parity after a specified number of years, or which provide wage and benefit increases to new hires to bring them up to party with existing workers if the company meets specified financial goals.

Some studies have found problems with two-tier systems. Some negative effects which have been found include: Higher turnover among newer, lower-paid employees; a demoralized workforce. Given enough time, a two-tier wage system can permanently lower wages in an entire industry. Lowering productivity expectations for new hires seems to alleviate some of these problems.

Alistair Anderson wrote the following article – Metal employers’ body seeks 50% starter-wage cut – which was published for the first time in Business Day today. 

View or download the complete article by clicking on the link or go to Business Day itself. Extracts are included here with kind permission of Business Day.

“Call for a wage cut for entry-level jobs is a bid to revive a key industry which has lost nearly 100000 jobs since the recession.

THE National Employers Association of SA (Neasa) yesterday called for a 50% cut in the minimum wage for entry-level jobs in the metal and engineering sector, in a bid to revive a key industry which has lost nearly 100000 jobs since the recession.

This comes after the South African Clothing and Textile Workers Union and textile industry employers concluded a landmark deal last week to offer new employees wages of 30% less in a bid to boost employment and turn around SA’s ailing clothing industry sector”.

“Neasa CEO Gerhard Papenfus said yesterday during the 2008-09 recession, the metal and engineering sector lost 100000 of its 450000-strong labour force with only a few thousand jobs added in the subsequent recovery.

He expected a further 10% reduction in the workforce by the end of next year if the current labour relations agreement for the sector, negotiated by the Steel and Engineering Industries Federation of SA (Seifsa) implemented on July 1, continues.

Mr Papenfus said if Labour Minister Nelisiwe Oliphant withdrew the existing agreement and implemented a new wage and benefits agreement which included the 50% wage cut for entry-level workers, people could be employed again in his industry. ‘We are more expensive than the clothing and textiles industry but a wage cut would help. An entry-level cleaner costs R6500 a month and employers cannot afford that,’ he said”.

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