ee er The Nature of the Employment Relationship Marleen

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 q Law of master and servant q Contractual relationship q Independent Contractor vs Employee q Fairness and Equity Nov 2004 4

Underlying Law Nov 2004 5

The Big Five q The Labour Relations Act q The Basic Conditions of Employment Act q The Employment Equity Act q The Skills Development Act q The Occupational Health & Safety Act Nov 2004 6

The Labour Relations Act [LRA] q Supercedes all other Acts (except Constitution) q Code of good practice - guidelines on fair labour practice q Trumps all employment contracts q Employment contracts provide a structure only Nov 2004 7

LRA (cont’d) q Contracting out of the LRA by collective agreements q Benefits better than those provided for in the Act q LRA ensures fair labour practice in collective bargaining and terminations q Disputes referred to the CCMA/Labour Court Nov 2004 8

LRA (cont’d) q Individual rights to fair labour practice q Dismissals for misconduct/incapacity (poor work performance and illness) and operational requirements (retrenchments or redundancies) q 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: q encourages supervisory capacity of management q promotes understanding and acceptance of rules q employees buy into the process Nov 2004 12

Discipline PROGRESSIVE APPROACH q implies that discipline progresses from one level to another q 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 q Disciplinary measures short of dismissal* q Disciplinary rules - according to size of business, and the circumstances q Standard of conduct must be set q Certainty and consistency q Communicated to employees Nov 2004 15

DISPUTES q Misconduct/Incapacity: - CCMA/Conciliation; Con/Arb; Arbitration - Labour Court by agreement/complex matters q Unfair Discrimination/Strikes: -Labour Court Nov 2004 16

CCMA/Labour Court q What is the CCMA – informality/form of address/Code Of Ethics of Commissioners q Describing the Labour Court – concurrent jurisdiction with the High Court q Labour Inspectors q Form of address Nov 2004 17

Dismissal for Misconduct – How Do We Do It? q Necessity of discipline - creates certainty q Awareness of rules - communication q Where are they found? Some self - explanatory/ some in various policies and daily instructions q Transgression - act/omission => corrective action q Fairness/equity/reasonableness q Each case based on its merits q Management responsibility and prerogative Nov 2004 18

Poor Work Performance Clear job specs - standard must be set q Step 1 - evaluation q Step 2 - communication of shortcomings q Step 3 - period of time to improve + guidance/counseling/training/mentoring q Step 4 - investigation q Step 5 - outcome q termination on notice - no-fault dismissal. Nov 2004 19

Basic Conditions of Employment Act (BCEA) q Minimum requirements, as the name implies q Regulates leave, sick leave, hours of work, overtime etc q 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 R 149 736 per year (this amount can be changed by the Minister from time to time) Nov 2004 20

Occupational Health And Safety (OHSA) q For all businesses, not just factories q Employees have to take certain responsibility for their own safety q Need a safety committee for all employees more than 50 q Most accidents happen because of horse-play and carelessness Nov 2004 21

Employment Equity Act – balancing rights Nov 2004 22

Employment Equity Act (EEA) q Has two important Chapters: Chapter II and III. q It is a constitutional act – has its origin in the Constitution of SA q Chapter II applies to all employers – Chapter III only to designated employers and employees. Nov 2004 23

Unfair Discrimination q Fair and Unfair discrimination q When can we discriminate? q Ensuring understanding in the workplace q Unfair discrimination Nov 2004 24

Unfair Discrimination q Chapter Two of the Employment Equity Act – eliminates unfair discrimination q Most unfair discrimination is indirect q Due to our socialisation process q Create awareness of indirect discrimination q Promote Equality Nov 2004 25

Understanding Discrimination CH 2 Prohibition of Unfair Discrimination “S 6(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 Nov 2004 27

What is Affirmative Action? More than just number crunching Identifying and removing barriers Retention and Development Nov 2004 Promoting Diversity Training and Development Recognising Skills 28

EE Compliance Checklist q Have you audited your environment – are you risk free from an unfair discrimination perspective? q Do you have the Summary of the Act displayed? q Have you trained your staff? q Do you have an EE Forum q Is a senior manager tasked with EE? Is it in their KPA’s q Have you done an EE Plan through a consultation process? q Did you submit an EE Report? Nov 2004 29

Summary of Principles q Employees: Protected from Arbitrary Action of Employers q Employers: Satisfactory Conduct &Performance from Employees q Mutual Respect q Fairness q Efficient Business Operations q Sets Ground Rules q Establishes Clear Expectations q Prompt. Fair, Consistent q Progressive &Corrective Discipline q Facts of Each Case Nov 2004 30

Compliance requirements q Employment Contracts q BCEA – minimum hours and overtime q Disciplinary Codes and Policies and Procedures q Standards of performance – what is expected of employees q Good Practice: Performance Contracts q Fair procedure always (paper-trail) q Probationary periods q EE – BEE q Removal of Unfair discrimination Nov 2004 31

For the Tourism Industry Hot-spots are: q Long working hours and an industry under the spot-light q Overtime pay q Unfair Discrimination issues q Not knowing exactly what our rights and obligations are q Complying with the BEE Charter q Sloppy employment contracts q Free-lance employment and ‘casuals’ Nov 2004 32