The South African Labour Guide reports that “Employers are often shocked when yet another dismissal of a drunken employee is found to be unfair by the CCMA or a Bargaining Council. They have more reason to be shocked when they hear that a commissioner accepted that a truck driver (responsible for transporting fellow employees) was intoxicated to some extent and caused a collision, but found that the prevention of alcohol abuse at work was a management responsibility and that it was they who should ensure that employees were not able to commence work if drunk {GIWUSA & another v VM Construction [1995] 9 BLLR 99 (IC)}.”
In any industry, being under the influence at work can become a deadly habit. Whether the staff member is responsible for security, transport, warehousing or factory work, dulled senses put themselves, their colleagues and their customers at risk. There are no legal stipulations in South African law about whether a company can request an employee to undergo a breathalyser. As such, companies are well within their rights to request same.
To protect themselves, however, organisations must
During this time of economic uncertainty, businesses are leaning heavily on their workforce to ‘ride the storm’ and emerge stronger. This is a highly pressurised situation and not all parties play fair, which is why terms like substantially fair, procedurally unfair and automatically unfair have emerged and where the law, thankfully, offers much needed clarity.
This is according to Nicol Myburgh, Head of Human Resources at CRS Technologies, integrated HR and HCM solutions and services provider.
From an HR and labour force perspective the Labour Relations Act (LRA) clearly outlines specific conditions when dismissal of employees is automatically unfair, says Myburgh.
“When talking about unfair dismissals it can be categorised between procedurally and substantively unfair, procedurally fair means that all relevant and required procedures were followed throughout, from initiation to sanction irrespective of the merits of the case, a case can be substantively fair and still be procedurally unfair,” he says.
“Substantively fair means that a case was decided on its merits and according to a fair reason without any underhanded sanctions being made,” Myburgh continues.
CRS Technologies outlines what the LRA says about the conditions that govern automatically unfair dismissal.
Essentially dismissal based on one or more of the following circumstances constitute automatically unfair action.
Read more: Automatically unfair dismissal has major impact on SA’s labour force – CRS
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address:
The Employment Equity Act (EEA) makes it compulsory for designated employers to implement affirmative action AA. This means that most employers are required to employ, train and retain the services of employees belonging to previously disadvantaged population groups being black, female and disabled people. The EEA defines black people as “Africans, Coloureds and Indians”. Based on this definition Chinese people do not qualify under the heading of affirmative action employees. This is illogical and unfair because, under the apartheid regime Chinese people were severely discriminated against and are therefore previously disadvantaged.
As a result the Chinese community, some years ago, took this issue to the Pretoria High Court which decided that Chinese South Africans are to be included in the definition of black people for purposes of BEE legislation and the EEA. As Chinese people were unfairly discriminated against historically their omission from the legislation appears to have been more for political than for reasons of logic or justice.
The EEA requires designated employers to strive to ensure that the demography (population ratios) of their organisations mirrors the demography of the society in which the organisation operates. For example, if the population of Gauteng is 80% black then designated employers
In reality, employment equity represents a regulatory challenge for South African businesses and the only truly effective way to ensure compliance and benefit is to have a plan in place and follow it proactively.
This is according to HR and HCM experts at services and specialist CRS Technologies who say the country’s labour law is clear when it comes to employment equity, and there are legislative requirements to which ‘designated employers’ must adhere to.
Designated employers, in labour terms, is defined as businesses with an employee headcount over 50, a turnover above the industry threshold and/ or a municipality/ organ of state.
Ian McAlister, General Manager at CRS Technologies, says these requirements include several straightforward instructions like having to consult with employees on Employee Equity matters, implement affirmative action measures, and conduct an analysis regarding barriers to employment equity and identify areas of under-representation.
However, it is the development and management of an employment equity plan that forms the crux of this set of regulations, specifically relevant targets and goals to be achieved.
The regulations have been put in place to guide businesses to ensure that they fulfil several criteria, chief amongst which is to submit employment equity reports to the Director General at the Department of Labour.
McAlister warns that this is a mission-critical function and businesses cannot afford to ‘drop the ball’ when it comes to the development of the plan or its enforcement.
The designated employer must
Read more: Progressive employment equity – the ins and outs of reality for business
On 2 August 2017, amendments to the Protected Disclosures Act of 2000 were published. The Amendment Act introduces several new provisions which broadens the application of the Act beyond the employer/employee relationship, and places further obligations on both whistleblowers and employers.
Background
The Protected Disclosures Act (PDA) came into effect on 16 February 2001 and provides procedures and protection to whistleblowers in the private and public sector, who disclose information regarding unlawful or irregular conduct by their employers or fellow employees. It encourages a culture of good governance, accountability and transparency.
The protection extended to whistleblowers by the Act is however not unconditional, and not all disclosures are protected. There are specific requirements which must be met in order to enjoy protection and employees need to understand what qualifies as a protected disclosure and when they can claim that they have suffered an occupational detriment. Practical Guidelines have
Read more: Whistle blowing amendments – what employers must know
Page 54 of 80
