0

Probation Period & Poor work performance

Employment Law , , ,

Even though appointing new employees on the provision of a probation period or having a probation clause in their contract, has become standard practise in South Africa, much mystery and uncertainty still seems to surround the issue of what a probation period actually means in terms of  the rights of both the employee and employer. The main issue that lands employers at the CCMA is that they mistakenly believe that hiring an employee under a probationary contract or having a probationary clause in the employment contract allows the employer to dismiss an employee at the completion or during the probation period, without any regard to the obligations imposed under the Labour Relations Act, but more specifically the Code of Good Practice: Dismissal (more specifically paragraph 8 and 9).

The reasoning behind a probationary period is to provide the employer with an opportunity to evaluate whether a new appointee is suitable to the position to which s/he has been appointed based on the employee’s performance and ability to carry out the responsibilities as is required by the position. This means that the probation period is only applicable to evaluate the employees’ work performance ability. A probation period may not be used as an easy escape to dismiss a newly appointed employee because the manager does not like him or her or because they do not fit into the business culture.

The misconception regarding probation periods usually touches on this point, with many employers believing that when a probation period is close to its end, they may simply inform an employee that their performance is not satisfactory and end their employment. A termination based on this presumption will be deemed both procedurally and substantively unfair.

It is important to keep in mind that when an employer decides not to permanently employ a new employee after their probation period, such a termination of employment effectively constitutes a dismissal due to poor work performance. For a poor work performance dismissal to be both procedurally and substantively fair, such a decision must be supported by records proving that all requirements of the Code of Good Practice: Dismissal (referred to above)  was met in order to afford the employee a fair opportunity to meet such expectations. These include:

  • Records of all training/coaching provided, including on-the-job training and informal mentoring sessions
  • Minutes of meetings with the employee
  • Solutions to address mistakes and poor work performance
  • Reasonable deadlines given for the improvement of poor work performance
  • The result of the measures taken to resolve the identified poor work performance

The employer will also need to prove that the procedure leading to the termination of the employment contract included an investigation to determine the reasons for the poor work performance and that alternative to remedy the situation, short of dismissal, was considered and implemented to resolve the problem. This means that the performance of the new employee needs to be monitored and recorded from the first day.

It is therefore important to remember when appointing a new employee that a probation period or probationary clause in the contract is not seen as a “trial period” by an employer. It should be deemed as being the induction/training period of the employee, integrating them into the new business. Employers should therefore remember to monitor the employee’s performance from the start. Also, make it clear from the start what is expected of the employee and how they can achieve it. The employer has a duty to assist the employee where reasonably possible to achieve the standard which is expected of them and to ensure that its standards are indeed reasonable and achievable.

While probation can be very beneficial to an employer when recruiting and building his or her team, it must only be used for the intended purpose. It is advised to consult a labour law expert when drawing up policy regarding probation to:

  • Design probationary policy and procedure in line with labour law
  • Establish the measures for monitoring and evaluating work performance
  • Set realistic performance standards to measure progress
  • Train managers on probation law and the implementation of the policy and procedure.

Dismissal for Poor Work Performance (PWP) while Employee is on probation (in a nutshell)

During the probation period the Employer should assess the Employee’s performance. In order to assess it must be clear what is expected of the employee. If it is not clear what is expected of the Employee, he/she should be informed, preferably in writing what is expected of him/her.

The Employee should also be given reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render satisfactory service. It is advisable that the Employer keeps proof hereof. The Employee must also be given some time to have an opportunity to improve.

Should the Employer determine that the Employee’s performance is below standard, the Employer should advice the Employee of any aspects in which the Employer consider the Employee to be failing to meet the required standards. If the Employer believes that the Employee is incompetent, the Employer should advise the Employee of the respects in which he/she is not competent.

The Employer should also then allow the Employee to make representations (i.e. to respond, preferably in writing) to the allegations of incompetency that the Employer is making. After receiving the Employee’s representations, the Employer may then decide to either extend his probation period, or to dismiss. It is not necessary (while the Employee is on probation only) to hold a formal enquiry or “hearing”.

0

COVID-19: Mandatory testing and a safe work environment

Employment Law , ,

With South Africa currently under a declaration of a National Disaster, some questions remain regarding the constitutionality of mandatory testing and a person’s right to refuse.

There are some who hold the view that being obligated to be tested is a violation of his or her constitutional right. However, under the National Disaster proclamation, certain limitations on constitutional rights are viewed to be both fair and just.

The Department of Co-operative Governance and Traditional Affairs published regulations determining that a person who is suspected to have Covid-19, or who has come into contact with someone who has Covid-19, may not refuse to be tested or quarantined. A warrant may be used to force compliance if a person refuses to be tested or quarantined.

In terms of workplace health, according to a document published by the Information Regulator of South Africa dated 03 April 2020, employers can force their workers to be tested for the SARS-CoV-2 virus behind Covid-19 illness.

In “GUIDANCE NOTE ON THE PROCESSING OF PERSONAL INFORMATION IN THE MANAGEMENT AND CONTAINMENT OF COVID-19 PANDEMIC IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 (POPIA)” which focusses on the protection of personal information gathered for the purpose of containing the spread of COVID-19, a section deals with the question of consent and workplace obligation under Sections 6 and 7:

6.1 Can the employer request specific information on the health status of an employee in the context of COVID-19?

Yes, the employer is obliged to maintain a safe and hazardous free working environment in terms of the Occupation Health and Safety Act 85 of 1993 read together with the Employment Equity Act 55 of 1998, if an employee’s health status may endanger other employees. The disclosed information should not be used to unfairly discriminate against such an employee.

6.2. Can the employer force an employee to undergo testing for the COVID-19 virus?

Yes, the employer can force an employee to undergo testing in order to maintain a safe working environment.

  1. CONSENT

7.1. Can a data subject refuse to give consent to be tested for COVID-19?

No, the Regulations require any data subject to undergo mandatory testing in order to manage the spread of COVID-19.

Furthermore, section 8 addresses the mutual responsibility of an employee to maintain a safe working environment by disclosing their COVID-19 positive status to their employer:

  1. GENERAL

8.1. Does a person who has tested positive for COVID-19 have a duty to disclose his or her status?

Yes, a person who has tested positive has a duty to disclose his or status to enable the Government to take appropriate measures to combat the spread of COVID-19.

Thus, an employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.

0

COVID-19: Updated and amended lock down regulations 02 April 2020

Uncategorized , , ,

Updated and amended regulations to address issues regarding transport, essential goods and the tracking of the coronavirus was signed and gazetted by Minister Nkosazana Dlamini-Zuma on 02 April 2020.

The changes include:

Funerals

  • Provision for certain individuals to be allowed to travel between provinces, metropolitan areas and districts for the purpose of transporting mortal remains for burial.
  • A process by which persons who wish to travel between provinces, metropolitan and districts to attend a funeral or cremation can obtain a permit, provided they are:
  • The spouse or partner of the deceased.
  • Children of the deceased, whether biological, adopted or stepchildren.
  • Children-in-law of the deceased.
  • Parents of the deceased whether biological, adopted or stepparents.
  • Siblings, whether biological, adopted or stepbrother or sister of the deceased.
  • Grandparents of the deceased.
  • Persons closely affiliated to the deceased.

Tracking

  • The creation of a confidential national database that will allow for the tracing for people who has, or who have been in contact with someone who has the coronavirus.
  • The database will collect personal information on persons when they are tested.
  • Government may also request information from electronic communications service providers such as mobile networks and ISPs, including location and movement.
  • The database will include (but is not limited to) the following information:
  • First name
  • Last name
  • Identity/Passport number.
  • Residential address.
  • Work address/Other addresses where they could be located
  • Cell phone number
  • Covid-19 test results
  • The personal details of all known or suspected contacts of a person who has tested positive for the virus.

Spaza shops and informal traders

  • Grocery stores and wholesale produce markets, including spaza shops and informal food traders, may operate but must obtain a permit from a municipal authority to operate.

These changes are gazetted in the Government Gazette 43199 on 02 April 2020, please follow the link for the full publication.

0

COVID-19 Updates in lockdown regulations 01 April 2020

Employment Law , , , ,

Minister of Transport, Fikile Mbalula, has issued a series of updates to the regulations in action during the national lockdown to facilitate better access to transport to vulnerable persons in response to citizens having difficulty finding transport to collect social grants.

According to government gazette 43183 (30Mar2020), “Busses and taxis shall be permitted to operate from 05h00 to 20h00 in order to cater the transport needs of South Africans most vulnerable which is effective from 30 March 2020 until 03 April 2020.”

A further amendment extends the period of validity for driver’s and vehicles for the period of the lockdown, and further 30 days grace period from the date of the end of the lockdown period. Motor Trade number licenses are extended a grace period of 6 months from the date of the end of the lockdown period. Licensing and vehicle test centres will remain closed for the lockdown.

The designation of essential workers have also been extended to include:

  • Tollgate operators
  • Road Emergency operators
  • Employees responsible for safe operation of the roads
  • Rail logistics operators

Government gazette 43186 (30Mar2020) grants a grace period to taxis to proceed to and from the pick-up points an hour before the designated times, without loading passengers, as set out in the Disaster Management act. Taxis are permitted to collect and return essential workers from 05h00 to 10h00 and 16h00 to 22h00. The amendment continues to say that private institutions or companies may plan transport for their essential workers (as listed in Annexure B of the Disaster Management act) to be in line with operating shifts and work time schedules. These operating shifts or work schedules must be stamped and signed by the responsible person.

This amendment also increases the permitted load capacity of minibus taxis to 70 % where no masks are required, meaning a taxi with a licensed capacity of 10 persons may carry 7, a capacity of 15 may carry 10 and a capacity of 22 may carry 15. In all cases the allowed number of persons in the vehicle includes the driver. A vehicle licensed for 4 persons is still limited to a 50 % permitted load capacity, meaning only 2 persons may be in the vehicle including the driver. However, during the lockdown period a minibus taxi will be permitted to carry a full load as licensed provided all persons in the vehicle is wearing either a surgical or N95 mask.

Government Gazette 43189 (30Mar2020) extends the ban on all local and international flights irrespective of the risk status of the country of origin except where granted specific permission by the Minister of Transport to evacuate South African citizens in foreign countries. Repatriation is allowed only where the foreign countries charter an aircraft to South Africa without passengers but with a crew – whom will not be allowed to disembark the plane in South Africa. South African citizens who wish to return to the country during this time will be permitted to do so provided:

  1. They have a fully paid return flight ticket, and
  2. They will submit to a mandatory quarantine period of up to 21 days.

The following technical flights are allowed:

  1. Medical Evacuation flights – these flights should not carry passengers except patients and crew who, upon disembarking, will be subject to the mandatory quarantine laws as are applicable.
  2. Aircraft in a state of emergency
  3. Overflights
  4. Technical landings for refuelling – these flights are allowed provided no passengers are allowed to disembark the plane.
  5. Aircraft operations related to humanitarian aid, relief flights and other safety related operations.

The following airports must have operation staff on standby to receive aircraft in distress:

  • Port Elizabeth
  • Bram Fisher
  • Upington
  • Polokwane
  • Kruger Mpumalanga

Flight Cargo crew will be permitted to disembark on the condition that they will be subject to quarantine laws as applicable.

Government Gazette 43183
Government Gazette 43186
Government Gazette 43189
2

COVID-19: TERS Application for UIF benefits update

Employment Law , , , , 2

All employers are required to register for the TERS benefit by sending an e-mail to covid19ters@labour.gov.za, but employers with more than 10 employees as well as employers using a payroll system, will be required to complete the Memorandum of Agreement (MOA) which can be received through an auto reply to the email address covid19ters@labour.gov.za or as linked here.

These employers will receive a bulk payment from UIF and will be responsible for the distribution of the funds to its employees and provide an audit trail. Employers with 10 or less employees will not have to distribute the funds as employees will be paid directly by UIF.

If an Employer has less than 10 employees and/or no payroll system, they will not be required to complete the MOA and can follow the easy prescribed method.

All employers will receive an automated response from covid19ters@labour.gov.za and a number of compulsory documents will be provided.

Employers are encouraged to submit claims as soon as possible as it will take UIF some time to process the large number of expected claims. Any subsequent updated documents will supersede any outdated documents already submitted.

Employers should note that claims should be mailed to covid19claims@labour.gov.za.

Please note that employers who resort under a bargaining council, should confirm with such a council whether it has reached an agreement with UIF in respect of TERS benefits, in which case claims must be submitted through the relevant bargaining council in accordance with that particular agreement.

Employers are reminded to not claim UIF unless the situation is dire, or withhold funds from employees, as the UIF can issue an audit on your account at any time. If it is deemed that money has not been paid to employees or misappropriated employers will be held liable by the law.

List of required documents for TERS application (templates linked):

  1. Letter of Authority
  2. Memorandum of Agreement (MOA)
  3. Prescribed template that will require critical information from the Employer
  4. Confirmation of Employer details
  5. Evidence / payroll as proof of last three months employee(s) salary/ies
  6. Confirmation of Employer bank account details in the form of a certified latest bank statement.

References (linked):

(i)                Covid -19 TERS EASY AID GUIDE

(ii)               The body of the Auto Reply Email received from UIF

 

1 2