Proposal Template
Download
Report
Transcript Proposal Template
ee/er: The
Nature of the
Employment
Relationship
Marleen Potgieter
May 2009
Contents
01 Nature of employment relationship
02 Underlying laws
03 Discipline – Rules and Standards
04 Code of Good Practice/Policies
05 Poor Work Performance
06 Conclusion
Nov 2004
2
The Nature of the
Employment
Relationship
Nov 2004
3
Employment Relationship
Law of master and servant
Contractual relationship
Independent Contractor vs Employee
Fairness and Equity
Nov 2004
4
Underlying Law
Nov 2004
5
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
6
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
7
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
8
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
9
Code of Good
Practice
Nov 2004
10
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
11
Discipline
CONSTRUCTIVE APPROACH:
encourages supervisory capacity of management
promotes understanding and acceptance of rules
employees buy into the process
Nov 2004
12
Discipline
PROGRESSIVE APPROACH
implies that discipline progresses from one level to another
graded system of disciplinary measures
Nov 2004
13
LRA Code of Good Practice
There are 3 grounds for dismissal:
Misconduct
Incapacity
Operational
Requirements
Nov 2004
14
LRA Code of Good Practice
Misconduct
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
Nov 2004
15
DISPUTES
Misconduct/Incapacity:
- CCMA/Conciliation; Con/Arb; Arbitration
- Labour Court by agreement/complex matters
Unfair Discrimination/Strikes:
-Labour Court
Nov 2004
16
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
17
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
18
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
19
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
20
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
21
Employment
Equity Act –
balancing rights
Nov 2004
22
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
23
Unfair Discrimination
Fair and Unfair discrimination
When can we discriminate?
Ensuring understanding in the workplace
Unfair discrimination
Nov 2004
24
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
25
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
26
Structure of the Act
EEA
CHAPTER II
PROHIBITION:UNFAIR DISCRIMINATION
AUDIT OF POLICIES & PROCEDURES
NEW / AMENDED P & P
CHAPTER III
AFFIRMATIVE ACTION
AA MEASURES
CONSULTATION
ANALYSIS
PLAN
REPORT
Nov 2004
27
What is Affirmative Action?
More than just number crunching
Identifying and
removing
barriers
Promoting Diversity
Retention and
Development
Training and
Development
Nov 2004
Recognising
Skills
28
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
29
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
30
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
31
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’
Nov 2004
32