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Arrested Employee

A question that has often been pondered but never been settled is whether an employee who has been imprisoned, can be liable for a disciplinary sanction based on AWOL (absence without leave).

There have been 2 recent cases regarding the above circumstance, one in the Labour Court and a further one in the Metal Engineering Bargaining Council.

In the case of Trident Steel (Pty) Ltd v CCMA and Other (2005) 10 BLLR 1028 (LC) the employee had been imprisoned and on his return he was placed into a disciplinary inquiry for absence without leave and failure to inform his employer of his whereabouts. He was accordingly dismissed, and the subsequent appeal also failed.

Thereafter, the employee referred the matter to the CCMA where an award was made against the employer for an unfair dismissal. The employer then took the matter on review and subsequently lost the review too.

The Judge held that it was a supervening impossibility and thus the employee cannot be expected to contact the employer of his whereabouts and in addition the employee cannot be required to tender his services.

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Furthermore, the employee could not be held for absence without leave because the employee did not willfully intend to be absent.

In the second case of Langa v CBC Laser Fab Engineering [2007] 6 BALR 526 (MEIBC), an employee was also dismissed for absence without leave after serving a brief period in prison. The Commissioner found that the dismissal was substantively and procedurally unfair as the employment relationship was not destroyed by the employees conduct, and the employee returned to work timeously after his imprisonment.

Therefore in conclusion the only remedy applicable to employers in this instance is to employ the services of a temporary employee, or to dismiss the employee based on operational requirements, and not discipline them on absence without leave.

Of a similar nature to the above is the situation where an employee commits a criminal offence outside of the company property and working hours.

Should the offence be of such a nature that it would affect/break your trust relationship with the employee then disciplinary action can be implemented. For example, where an armed reaction officer is found to have being involved in an armed robbery, clearly this individual cannot be trusted to respond to potential break-ins.

Proceed with caution on both events and ensure you contact your consultant for the best advice.

Recruitment and Selection

Recruitment and Selection is without doubt one of the more challenging tasks facing employers today. With so many legislative guidelines and a nation full of diverse applicants it is a potential minefield and must be approached with care. As a result it is critical to follow these guidelines:

1) The Selection Process

The content of interviews and the manner in which they are conducted, in particular the nature of questions which are put to applicants for employment selection are critical, since it is at this stage that attitudes and prejudices are likely to be revealed.

Employers will no doubt wish to compile a comprehensive profile of prospective employees to determine their suitability for the vacancy in respect of which selection is to be made. Therefore, questions directed at female applicants relating to their intentions to become engaged, to get married, or to have children will amount to discrimination. A question to a female-applicant as to her intentions to marry in the near future would therefore not be admissible.

An applicant for employment would be afforded a remedy in terms of the Labour Law where sexual favours are for example requested as a pre-condition of employment.

The same principle would apply where the employer refuses to employ a homosexual person based on his or her sexual preferences. In this regard the American Courts have held that the denial of a security clearance in organizations which treat homosexual, but not heterosexual conduct as a negative factor, constituted discrimination on the grounds of sexual orientation. Questions on religious affiliation could also be discriminatory.

The Labour Law also states that an employer may not discriminate against an applicant because of past, present or future membership of a trade union or workplace forum or his participation in the formation or lawful activities of such a union or workplace forum. The employer may also not require a person seeking employment not to be a member, become a member or to give up membership of a union or workplace forum.

2) Contract of Employment

Possibly the most important document in the employment relationship the contract of employment is a must when taking on new employees. Wherever possible avoid verbal agreements (regardless of how strong you feel your trust is with an applicant), rather record all terms and conditions in a formal and binding manner.

The standard approach is the utilization of a probationary period when taking on a new employee. This allows both the employer and employee to ‘get a feel’ for each other without committing to permanent employment immediately. However, the onus is on the employer to provide training and guidance during the probation and conduct a work performance review at the end of the period before deciding to terminate.

Employers should be careful not to overuse a fixed term contract by extending it continually as it creates an expectation of permanent employment and may make a case for unfair dismissal when the contract is eventually terminated. As a result we recommend that you contact us first before extending an employee’s contract thereby allowing us to examine any possible risks.

In conclusion, the process of identifying and employing the right people is a difficult task, however, if the employer implements and commits a recruitment and selection policy, followed by an induction process he can be assured that the risk of taking on ‘bad apples’ is reduced to a minimum.

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Maintaining Discipline around the Clock

Sepane.com’s clients are finding it easier to maintain control over their staff through the use of sophisticated clocking technology. One such client had been struggling for months with employee’s arriving and leaving as they please without management been able to monitor this effectively, and therefore implement discipline consistently.

One he had installed a finger print recognition machine (which are relatively inexpensive these days) the employees could no longer clock in for their friends thereby defrauding the company of valuable wages on a weekly basis.

The records of the new technology are then examined on a weekly basis and time offenders are quickly brought to the book through a graduated scale of discipline, beginning from a written warning for first offenders right through to dismissals for repeat offenders.

In the absence of an acceptable explanation to the contrary, the fact that an employee clocks in for another who is not at work means that the purpose of doing so was a dishonest one, intended to secure some improper advantage for the absent employee.

In the decision of YICHIHO PLASTICS (PTY) LTD v MULLER (1994) 15 ILJ 593 (LAC), the Labour Appeal Court recognized such conduct would constitute a fair reason to dismiss the employee concerned. The Court recognized the employer’s interest in protecting itself from the possibility of fraud and dishonesty in the workplace.

This is an excellent example of new technology being able to assist employers to swing the scale of labour law back in their favour through accurate and detailed records, therefore allowing them to maintain discipline around the clock.

(If you are interested in finger print technology for your workplace then please contact Scott Forrester at Sepane.com who will gladly point you in the right direction – reach him on his cell phone on 082 560 2777 or at the office on 0861 737 263)

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Knowledge and the right channels:

The essential components of putting costly arbitration awards aside at a reasonable cost.

The utilisation of a professional labour relations company can make a substantial difference on not only the company’s approach to labour law and industrial relations but also its bottom line.

One of our clients received a default arbitration award a few months back to the value of R130 000,00 for an alleged unfair dismissal. Having not being informed of the arbitration the employer was understandably shocked to receive an award of such an amount. A financial knock this large would have certainly changed the future growth of the company.

The employer enlisted the help of Sepane’s litigation department where Mr. Brett Susan, Sepane’s labour lawyer, applied for a rescission of the award and thereafter dismissed the matter entirely after it was established that the CCMA was without jurisdiction to hear the matter in the first place.

The above serves as an excellent example that having an in-depth knowledge of the labour law and its application is no longer a luxury for employers, but rather a necessity.

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E-mail and Internet Policies

In 2001, South African labour practitioners were given clarity from the CCMA as to how it views the fairness of dismissals as a result of an employee distributing unsolicited e-mails (CRONJE v TOYOTA MANUFACTURING (2001) 22 ILJ 735).

The employee approached the CCMA to arbitrate his dispute after he was dismissed on the charges of distribution of racist and/or inflammatory material, violation of the company's internal policy, and behaviour unbecoming of a manager. In this instance, the respondent's Human Resources Manager deposed that the respondent's internet and email usage code specifically outlawed the display and/or transmission of any offensive racial, sexual, religious or political images, documents or messages on any company system. Breach of the rule might result in severe disciplinary action.

The CCMA upheld the fairness of the dismissal on the grounds that the company had an internet policy and as such, there were valid and accepted internet and email rules in the workplace.

South African case law has not been clear on the subject and there are no clear guidelines that indicate where the right to workplace privacy ends and the right to monitor begins. If we accept the formulation in the Cronje decision it will generally only be advisable to sanction a dismissal after an employer has discovered unsolicited information on a computer if there has been prior consent from the employee or with court authorization.

Prior consent may be obtained at the time of entering into the employment contract or thereafter by the employee's consent to an electronic communications policy which allows for monitoring in the event of a reasonable suspicion that the policy is being breached. Employers can commit staff to signing a policy document in the form of an agreement between employer and employee that will provide the employer the right not only to invade the employee's right to privacy in appropriate circumstances but also to dismiss or discipline an employee for reasons relating to the misuse of communication.

The bottom line is that a company’s policies and procedures define its ability to effectively institute and complete disciplinary action in a fair and equitable way.

Contact brett@sepane.com for assistance with this policy.

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