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Managing grievance in the workplace

Employment Law , , ,

One of the many important policies that a responsible employer must have in place is also quite possibly the simplest: a grievance procedure. Despite biases to the contrary encouraging and empowering employees to raise concerns and alert the employer to conflicts promotes a healthy working environment.

A grievance is any complaint an employee may raise due to a feeling of discontent, unfairness, or injustice in respect to his or her work conditions or against a colleague, manager, or supervisor. The cause of the feeling may be deliberate (as in the case of harassment, victimisation, or bullying) or unintentional but may be experienced as equally detrimental by the employee. A grievance procedure should be aimed at resolving workplace problems and complaints before they escalate to litigation in a fair, transparent, and consistent manner without directly or indirectly prejudicing the employee lodging the complaint.

Depending on the needs and staff compliment of an employer, grievance procedures do not need to be formal or elaborate. In smaller companies a short section in the employment contract detailing the steps to follow to report a complaint may be sufficient. Larger organisations with more complex management and oversight structures should compile a more formal policy document, outlining the hierarchal order in which complaints should be escalated.

Ideally, minor complaints should be resolved through informal meetings with the employees’ manager or supervisor unless the employee requests a formal meeting. In the case of a more serious complaint, a formal meeting should be called, and records must be kept of all proceedings.

Depending on organisational policy, formal grievance procedures should follow the same basic principles:

  • Employees must be entitled to lodge grievances to management.
  • Employees should be allowed representation, either by a colleague or shop.
  • All levels of management must consider the complaints carefully and make genuine attempts at resolving the grievance.
  • The grievance will not be considered resolved until the employee indicates that it is.
  • Time limits should be established for all steps in the process.
  • An employee has the right, should a grievance remain unresolved, to declare a dispute.
  • Grievances should as far as practically possible be managed by the line managers of the employee, however, other employees such as Human Resource Management may be called upon for intervention and advice where necessary.

Grievance procedures should not be used in the place of, or as a reaction to, a disciplinary procedure. Should an employee feel he/she suffered an injustice in a disciplinary process, he/she must lodge an internal appeal against the disciplinary outcome (if the sanction was not dismissal). If this appeal is unsuccessful, or if the sanction was dismissal, the employee can lodge an Unfair Labour Practise dispute with the CCMA or the relevant Bargaining Council.

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Reimbursement of training costs

Employment Law , , , ,

Can an employer deduct money for training should the employee resign within a specific period after completing the training?

Many employers provide training to new employees when they join the company. The reason for training may vary from on-the-job training to train the new employee on proprietary systems of software, to being sent on formal skill development courses. Current employee may also require new training should the business’s operational requirements request it and or a new system is being implemented.

When an employee resigns, especially soon after completing training, employers are quite justified in feeling wronged. The question becomes, may they hold the employee liable for the costs and expenses incurred for the specific training?

Firstly, it is important to keep in mind that Section 34(2) of the BCEA specifies that:

“2) A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if–

a) the loss or damage occurred in the course of employment and was due to the fault of the employee

b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made

c) the total amount of the debt does not exceed the actual amount of the loss or damage; and

d) the total deductions from the employee’s remuneration in terms of this subsection do not exceed one-quarter of the employee’s remuneration in money.”

If a (advisably written) agreement was established between the employer and the employee that the employee would be liable to repay the costs of the training should s/he resign within a specified period after completion of training, the employer will be able to enforce the signed written agreement. The employer will then be allowed to recover from the employee a proportionate / pro rata amount of the training costs incurred by the employer for the employees training received.

The written agreement would have to meet the following criteria:

  • That is was signed/agreed to prior to the commencement of the training.
  • That it disclosed all the terms and costs to the employee prior to the signing of the agreement.
  • That it clearly stipulates the terms under which the employee would be liable to repay such
  • That it stipulates the period for which the employee will be held liable for those costs.
  • That is stipulates how the proportionate / pro rata amount will be worked out should the employee leave/ resign before the specified period has lapsed.

If training is offered on the condition that the employee may be held liable to reimburse the costs should s/he resign for any reason or is dismissed, before training could commence, through no fault of the employer within a certain time, the employee must be given a fair opportunity to refuse the offer of training should s/he feel that the conditions are unacceptable for whatever reason.

If no agreement was signed prior to the training, it is implied that the employer is offering the training at company cost without requiring the employee to reimburse the employer. An employer has no legal entitlement after the fact to demand the repayment of training costs if the only basis is that the employee has resigned.

To succeed in a claim for reimbursement of training costs against an employee, the employer would have to show that a valid agreement was in place prior to incurring the cost of the training. The reimbursement claimed cannot exceed the actual cost of the training, that is, the total provable cost of providing the training less the portion claimed by the employer in terms of the Skills Development Act.

Employers are cautioned to carefully consider when imposing a liability for training costs on an employee should s/he resign, as this may result in the provision falling under the scope of the Conventional Penalties Act 15 of 1962, if the cost claimed is deemed to be a penalty and the penalty amount is disproportionate to the actual loss/damage suffered by the employer.

This article is being provided for informational purposes. Contact Joblaw for any enquiries and legal advice.

 

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Resigning with immediate effect may not be an easy escape

Uncategorised , ,

An all too familiar scenario to employers is the employee who resigns with immediate effect as soon as they are informed that they will be subjected to a disciplinary process and/or hearing.

This begs the question: Can the employer continue with the disciplinary process?

According to the BCEA (section 37), an employee may give notice of his resignation, or an employer may give notice of termination of employment, within the following time periods:

  • One week’s notice, if the employee has been employed for six months or less.
  • Two weeks’ notice, if the employee has been employed for more than six months but less than one year.
  • Four weeks’ notice, if an employee has been employed for one year or more.
  • Four weeks’ notice, if an employee is either a farmworker or a domestic worker who has been employed for more than six months.

These are the minimum time periods allowed by law. The notice periods should also be stipulated in the contract of employment with a stipulation that, should the employee resign, the employer will enforce the notice period, therefor requiring the employee to give the proper notice and to work for the full period.

Whereas the law sees a resignation as a unilateral act, the resignation only comes into effect on the expiry of the contractually agreed notice period. An employee resigning without serving the notice period is in breach of contract.

The employer has two option in such a scenario:

  • Hold the employee to the contractually agreed notice period and require the employee to complete work, or
  • Accept the resignation, cancel the contract (on the basis that the employee breached the contract) and sue the employee for damages through civil court.

Whereas seeking damages through a court may be a unjustifiably large expense to an employer in such a scenario, it may also be unconscionable for an employer to let an employee leave with a clean disciplinary record if the reason for the immediate resignation was to avoid a disciplinary inquiry.

An employee may argue that his/her immediate resignation terminates the employment relationship thus ending the jurisdiction of the employer to continue disciplinary action. However, according to the legally agreed notice periods and the contractually agreed stipulation that an employer will enforce the notice period, the employer may refuse to accept the short notice period. In enforcing the full notice period, the employer can then continue with the disciplinary process, provided that the inquiry and disciplinary hearing takes place before the expiry of the notice period.

Should the employee be found guilty of misconduct and the sanction as determined by an independent chairperson is dismissal, the employee’s disciplinary record can reflect the termination of employment to be due to dismissal rather than resignation. In the case where an employee is found to not be guilty during a disciplinary hearing but had already tendered their resignation and wishes to withdraw their resignation based on this finding, the employer is under no obligation to accept the retraction of the resignation.

This article is being provided for informational purposes. Contact Joblaw for any enquiries and legal advice.

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