We find ourselves in unprecedented times, after President Ramaphosa placed South Africa in a 21-day lock down to combat the spread of the COVID-19 virus.
While a pandemic is naturally unpredictable, many labour issues sprout from oversights that are predictable, and thankfully, can be rectified. These pertain to an absence of contracts and policies that set legal boundaries and establishes responsibility in the case of transgression.
According to the Basic Conditions of Employment Act (BCEA) it is required by law that every employer provides a contract of employment to the employee on no later than the first day of work. The contract must stipulate the parties entering into the employment agreement, the terms of service, and the conditions of employment – including remuneration, deductions, hours of work, overtime, leave and termination of employment.
Another pitfall, often overlooked especially by smaller companies, is the need for company policy documents which often lead to successful challenges by disciplined or dismissed employees at the CCMA for unfair labour practice. Unfair labour practice is defined by Section 186(2) of the Labour Relations Act (LRA) as “any unfair act or omission that arises between an employer and an employee…” Without a company policy in place – along with a documented record that the employee had been informed and agreed to the stipulations in a policy – it can be an extremely difficult task to act against employees. The employee can, as a principle of unfair labour practice, claim that he was never informed of the policy s/he transgressed and has the right to conclude that it does not exist.
Drafting company policy documents are not without their own legal difficulties and is best to be done in consultation with an experienced labour law expert. Policies that may be required by any company, irrespective of size, include:
- Disciplinary & Grievances Policy
- Company Communications Policy
- Company Vehicles Policy
- Computer Usage Policy
- Corruption, Gifts and Kickbacks Policy
- Employment Equity Policy
- Performance Management Policy and Procedure
- Sexual Harassment Policy
- Smoking Policy
- Telephone Policy
- Travel Policy
- Health & Safety Policy
- Emergency and Disaster Management Policy
Incorporating such matters into a contract means that any transgression is then not only a breach of company policy but also a breach of contract – putting the employer on much more solid ground should any dispute arise.
Another minefield in the dispute landscape is the lack of documented training records. Following on the same principle as above, an employee that is disciplined or dismissed for poor work performance, may challenge such a sanction on the basis that they were not properly trained in the task/system which lead to the disciplinary action, thus rendering any sanction of poor performance to be unfair. A detailed training record on file of any training sessions, coaching (informal or formal) offers great insurance from a disgruntled, non-performing employee.
Time spent on closing loopholes to prevent disciplinary or behavioural headaches is always well-spent, and best done sooner rather than later. In the spirit of the lock down, use any available time in the next three weeks to re-examine employee records and close any gaps you may find.