GENERAL NOTICE NEWSLETTER

Transcription

1 HEAD OFFICE - JHB 2 ND Floor, Pin Oak House, Ballyoaks Office Park, 35 Ballyclare Drive, Bryanston, Johannesburg, 2191 T: F: PRETORIA BRANCH 11 Drummorgan, 580 Jan Bantjies Street Montana, Pretoria, 0182 T: CAPE TOWN BRANCH 68 Centurion, 13 Kasteelberg Road, The Crest, Durbanville, 7550 T: DURBAN BRANCH 135 Brible Road, Forrest Hill, Kloof Durban, 3610 T: NEWSLETTER us on facebook (search for Invictus Johannesburg) or visit us at POSTAL ADDRESS PO Box 1127, Cresta, 2118 Reg. No: 2001/006142/07 VAT No: GENERAL NOTICE - FULL STOP, PERIOD - Notice pay may be defined as remuneration paid to an employee during that period where notice of termination of employment has been given by either party to the other, as per section 37(1) of the Basic Conditions of employment Act 75 of 1997 (the BCEA ). An employer may decide whether or not they require the employee to work during this notice period, either as required by law or as agreed to in the employment contract. If an employer does not require an employee to work his or her notice period, such employer must pay the employee as if he or she had worked their notice period. Section 37 of the BCEA links certain periods of service with a required period of notice. An employee in employment for less than six months owes one week of notice. Between six months and a year requires two weeks notice and employment is excess of a year requires four weeks notice. Note that the law requires four weeks and not a calendar month as is the norm in most employment contracts. If an employee resigns but fails to give notice or refuses to work during the required notice period (as per the BCEA or as per the contract of employment), that employee is in breach. The employer is then not required to pay the employee such notice pay. The employer also has the right to sue the employee (in civil court) for any damages suffered as a result of this breach. It is important to remember that an employee s notice should consist of all components of his or her remuneration. To use an example, notice should not only include the normal basic salary of R5000 but also the customary use of the company vehicle, to the value of R1000.

2 An employee dismissed summarily, by means of disciplinary action, does not owe notice and is not owed notice pay (unless the contrary is dictated by the employer s disciplinary code). HUMAN RESCOURCES HIV/AIDS AND DISMISSALS - PROPER PROCEDURE - Employers should carefully consider before deviating from the notice periods provided in law. For expert advice in managing all aspects of notice pay, contact Invictus or your normal service provider. The Code of Good Practice on Key Aspects of HIV/AIDS and Employment (the Code ) refers to the Human Immune Deficiency Virus as a serious public health [problem] which has socio-economic, employment and human rights implications. The real implication for employers is that some employees living with HIV/AIDS may become too ill to work. However, how can this be reconciled with section 11 of the Code, which states that Employees with HIV/AIDS may not be dismissed solely on the basis of their HIV/AIDS status? The organisation Avert, using information supplied by Statistics South Africa, estimates that 10.9% of all South Africans over the age of 2 were living with HIV in Further, that 16.9% of people between ages 15 and 49 (the workforce, in other words) were living with HIV in The organisation UNAIDS estimates that AIDS claimed 270,000 South African lives in 2011 and that, in that year, the HIV prevalence under the 15 to 49 year old age bracket rose to 17.3%. Worrying indeed, these figures (loosely translated) mean that employers who

3 employee 10 employees almost certainly employ at least one person with HIV. HIV attacks the immune system and renders a person much more likely to succumb to secondary diseases and infections. An MRC research team concluded that 61% of deaths by HIV in 2000 and 2001 had been misclassified as either tuberculosis or other respiratory infections. These secondary diseases and infections are what may render an employee too ill to work. It is paramount that an employer have an established HIV/AIDS policy to refer to in such times. policy) is the preservation of the employee s privacy and the prohibition against having employees medically tested for HIV. It is an intricate and delicate process that should not be embarked upon without great circumspection. For aid in drafting HIV/AIDS policies, HIV/AIDS policy compliance and implementing medical incapacity procedures, contact Invictus or your normal service provider. An employer may legitimately dismiss an employee who is too ill to work (due to the underlying condition of HIV/AIDS) in accordance with the provisions of section 188(1)(a)(i) of the Labour Relations Act 66 of 1995 (the LRA ). This provision states that such dismissal will be unfair unless the employer shows that there was fair reason for the dismissal, based on the employee s capacity. The onus of proof is therefore on the employer. Passing this hurdle will require an employer to conduct a full and proper medical incapacity investigation into the employee s ability to continue to (or return to) work. Important guidelines to keep in mind during this process (and that should be incorporated into the employer s HIV/AIDS

4 INDUSTRIAL RELATIONS FOREIGN NATIONALS ILLEGAL IMMIGRANTS & DISMISSAL It is a fact that the vast majority of employers in South Africa will, at some point, find themselves employing a foreign national. Especially if that employer requires unskilled labour and has a high staff turnover. Such employers are often confronted with difficult questions. Is it legal to employ a foreign national with an expired work permit? Can non-citizens claim UIF? Is the employer responsible for such an employee s occupational injury claims? What is the correct procedure in dismissing such an employee? The Immigration Act makes it clear that it is illegal for an employer to employ a foreign national lacking the requisite work permit and that such employer will be subject to imprisonment or a fine. However, many employers wrongly assume that this also means that illegal immigrants, or employees working with expired work permits, have no legal rights under South African labour law. After all, section 23 of the Constitution grants everyone the right to fair labour processes. This matter was brought before the Labour Court in Discovery Health Ltd V CCMA & Others (CLL Vol 17, April 2008). The judgement confirms that the CCMA has jurisdiction to hear a matter where an employee does not have the necessary work permit and, furthermore, that the legal prohibition against employing illegal foreigners does not void the employment contract of such foreigner. In other words, such an employee (while not a legal citizen) is a legal employee and must be afforded the basic protections afforded to all employees. The Unemployment Insurance Act 63 of 2001 sets out the procedure to be followed for claiming unemployment benefits. It states that an employee must exhaust all the procedures and remedies under this act before approaching the court. It is yet to be determined if a foreign national who is employed illegally can claim UIF. However, since the employer s UIF contribution is calculated per capita it is fairly certain that (as long as the employer kept up its contributions to the fund) the employee s claim will be against the fund and not against the employer. A foreign national who is employed legally, is obligated to contribute towards the fund and would then be entitled to claim from said fund once unemployed.

5 The question of whether such an employee is protected by the Occupational Injuries and Diseases compensation fund is a tougher one. It remains to be seen whether such an employee has a (potentially ruinous civil) claim against the employer in the event it is found that the fund has no obligation to compensate such an employee. It would be an oversimplification to say that illegal immigrants are legal employees only so long as they have valid work permits. Instead, it should be clearly stated in the employment contract and in the employer s policies and procedures that it is an inherent requirement of the employment relationship that foreign employees must at all times be in possession of valid work permits. Should an employee s permit lapse, employers must then allow for a grace period for employees to renew their permits, in the form of a temporary layoff until the necessary permit is acquired. Please take note that the Department of Home Affairs recently announced that all Dispensation of Zimbabweans Project permits ( DZP permits) will expire on 31 December 2014, irrespective of date of issue or noted expiry date. DZP permit-holders can reapply for the new Special Dispensation Permits ( ZSP permits) if they wish to remain in South Africa, subject to certain conditions. For any additional information or advice on foreign nationals and how their employment impacts the employer, contact Invictus or your normal service provider. At completion of the agreed layoff period the employer must then either follow absconsion procedures (if the employee does not return to work) or proceed into an incapacity investigation should the permit not be obtained and/or extended/granted. Such investigation could then lead to termination of employment.

6 LEGAL UNFAIR LABOUR PRACTICE WHO SAYS WHAT S UNFAIR? The term Unfair Labour Practice is frequently used as a catch-all phrase incorporating any and all actions by an employer thought to be contrary to the law. This definition is in error. Section 186 (2) of the Labour Relations Act 66 of 1995 (the LRA ) provides a closed list of unfair labour practices. If the complaint of action is not listed there, it is not an unfair labour practice. This short list includes any unfair act or omission [...] involving (a) unfair conduct by the employer relating to promotion, demotion, probation [...] or training of an employee or relating to the provision of benefits to an employee; (b) the unfair suspension [...] or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or reemploy a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act [...]. Despite its copious use of the term, section 186(2) is silent on what might be considered unfair. Lacking clarification, the description(s) offered in section 186(2) become subject to interpretation. Arbitrators and judges tasked with deciding this intricate issue often disagree with one another as to what constitutes an unfair action. A bare handful of issues seem to have been answered with finality. For starters, only an employee (and not an employer) can be a victim of an unfair labour practice. There are also two instances, illustrated by case law, where one cannot refer an unfair labour practice dispute to the CCMA. The first is NEWU v CCMA & others [2007] 7 BLLR 623 (LAC) where the CCMA had found that it lacked the jurisdiction to hear the dispute, since section 186(2) did not allow for an unfair labour practice dispute referred by an employer. The Labour Court later held that the employer had other remedies at its disposal and that the LRA was not put into place to regulate unfair labour practices comprehensively and that claims by the employer were not covered by section 186(2) of the LRA. The court held further that this was not unconstitutional despite section 23(1) of the Constitution conferring the right to refer an unfair labour practice dispute on everyone.

7 MEC for Transport: KwaZulu Natal & others v Jele [2004] 12 BLLR 1238 (LAC) illustrated that one could argue the absence of an employment relationship to escape an unfair labour practice dispute. Although the argument itself had merit, the employer failed because the court declined to differentiate between different State departments and held that, for the purposes of an unfair labour practice, the employee s employer was the State, not the particular State department. It is therefore made clear that only those who fall within the definition of employee enjoy section 186(2) s protection against unfair labour practices (Basson et al, Essential Labour Law 5 th Ed 2009 Labour Law Publications 192). Grogan further states that the act or omission must arise between an employer and employee. The affected party must therefore be an employee and the alleged offending party an employer (Grogan J, Dismissal, Discrimination and Unfair Labour Practice 2008 Juta & Co 44). The unfair labour practice must, further, arise during the subsistence of the employment relationship. Except of course where an employer refuses or fails to reemploy a former employee as per section 186(2)(c). As to the resolution of unfair labour practice disputes, it appears that arbitrators attempt to put the employee back in the position he/she would have been in had the unfair labour practice not occurred. To illustrate, if the unfair labour practice relates to a benefit lost by the employee six months ago, restoring the employee s previous position would mean the payment of six months worth of that benefit to the employee. Needless to say, this exercise can become prohibitively expensive. This is not to say employers may not discipline employees or change employee benefits, so long as the employee does not lose out unfairly as a result. Such discipline must be merited and such loss of benefits justifiable or fair. Problematically, in deciding what is fair, the opinions of employers and employees (not to mention individual arbitrators) often differ. This continues to a problematic matter in our legislation and employers are advised to thoroughly investigate any proposed action which might attract section 186(2), before embarking upon it, and to err on the side of caution.