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
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The Nature of the
Employment
Relationship
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Employment Relationship
 Law of master and servant
 Contractual relationship
 Independent Contractor vs Employee
 Fairness and Equity
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Underlying Law
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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
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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
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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
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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
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Code of Good
Practice
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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
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Discipline
CONSTRUCTIVE APPROACH:
 encourages supervisory capacity of management
 promotes understanding and acceptance of rules
 employees buy into the process
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Discipline
PROGRESSIVE APPROACH
 implies that discipline progresses from one level to another
 graded system of disciplinary measures
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LRA Code of Good Practice
There are 3 grounds for dismissal:
Misconduct
Incapacity
Operational
Requirements
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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
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DISPUTES
 Misconduct/Incapacity:
- CCMA/Conciliation; Con/Arb; Arbitration
- Labour Court by agreement/complex matters
 Unfair Discrimination/Strikes:
-Labour Court
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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
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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
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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.
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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)
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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
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Employment
Equity Act –
balancing rights
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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.
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Unfair Discrimination
 Fair and Unfair discrimination
 When can we discriminate?
 Ensuring understanding in the workplace
 Unfair discrimination
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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
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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.”
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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
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What is Affirmative Action?
More than just number crunching
Identifying and
removing
barriers
Promoting Diversity
Retention and
Development
Training and
Development
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Recognising
Skills
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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?
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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
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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
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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’
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