INTRODUCTION. employer subscribe to every aspect of the BCEA. These include legal entitlement to Overtime, Regulated hours of work, etc.

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1 HEAD OFFICE - JHB 3001 William Nicol Dr, Parc Nicol, Building 1, Bryanston, 2152 CAPE TOWN BRANCH 1 Aristea Street, Vredekloof Heights, Brackenfell, 7560 PO Box 1127, Cresta, 2118 T: F: Reg. No: 2001/006142/07 VAT Reg. No: INTRODUCTION Greetings to all our clients! It is important for all employers to note that on 13 May 2011 the Minister of Labour increased the Annual Earnings Threshold (also known as Minimum Earnings Threshold) from R per annum to R per annum. For the purposes of this sections "Earnings means gross pay before deductions, i.e. (before deducting) income tax, pension, medical and similar payments, but excluding similar payments (contributions) made by the employer in respect of the employee. employer subscribe to every aspect of the BCEA. These include legal entitlement to Overtime, Regulated hours of work, etc. The Basic Conditions of Employment further stated that any employee earning more than the MET has no legal right/entitlement to the stipulations with regards to: Ordinary hours of work (section 9) Overtime (section 10) Compressed working week (section 11) Averaging of working hours (section 12) Meal intervals (section 14) Daily and Weekly rest period (section 15) Pay for work on Sundays (section 16) Night work compensation/transport (section 17) The Minimum earnings threshold (further referred to as MET) divides the workforce into two distinctive camps: 1. Employees earning less than R172000; and 2. Employees earning more than R According to the Basic Conditions of Employment Act, any employee earning less than the MET is entitled, and therefore has the right, to have the Public holiday compensation (section 18) It is with the above in mind that employers need to know that no employee earning more than the MET is entitled to any of the above benefits, however they have the right to negotiate such directly with the employer. A note of caution here is that the employer does not have the right to expect the employee to work

2 overtime and/or in excess of normal working hours without limitation. A further warning would be that no change may be brought to the employee s terms and condition of employment after considering the increase in MET. We hope that the above has been informative and should you require further assistance please don t hesitate to contact your Regular Service Provider or our offices. Kind Regards, The Editor. value of the property involved, the employee s length of service, the absence of prior warnings, or whether the employee subsequently returned the property. As in all cases of misconduct the employer must prove on a balance of probabilities that the employee committed the offence or was an accomplice to such. A proper inquiry must be held in cases of alleged theft, during which the employer is obliged to submit substantial evidence to prove that the employee is guilty. Other forms of dishonesty also justify dismissal. If an employee is dishonest in the workplace, it can GENERAL DEALING WITH DISHONESTY IN THE WORKPLACE Dishonesty in the employment context can take various forms, including: Theft; fraud; withholding information from the employer; making a false statement; or misrepresentation with the intent of deceiving the employer. A charge of dishonesty requires proof that the person acted with the intent to deceive. Theft is regarded by the labour court as one of the most serious forms of disciplinary offence, normally justifying dismissal in first instance, regardless of the cause a breakdown in the trust relationship between the employee and the employer. In Central News Agency (Pty) Ltd v Commercial Catering and Allied Workers Union & another (1991) 12 ILJ 340 (LAC) the Labour Appeal Court had the following to say about trust in the employment relationship; This trust which the employer places in his employee is basic to and forms the substratum of the relationship between them. According to studies, employee awareness is one of the most efficient tools in the prevention of workplace theft. It is also important to make it clear to your employees that theft will not be tolerated. Employees should be aware that preventative measures, such as surveillance systems, are in place. Regardless of the employee s motivation, many employees are more likely to stray from acceptable behaviour when an opportunity presents itself. If an

3 employee perceives little chance of being caught, he or she may be more inclined to steal. Theft of cash, equipment, or company software is a serious crime and should be reported to the police, who will also advise on theft prevention strategies. Surveys show that up to 40% of business losses can be attributed to employee theft. When taking the above mentioned into account employers cannot afford to ignore this large-scale problem and should do everything in their power to create a workplace atmosphere that promotes and encourages honesty. HUMAN RESOURCES MOTIVATING STAFF AND LEADING YOUR TEAM TO SUCCESS. Employers fulfil the leader role in guiding and encouraging employees to perform their best which means incorporating everyday leadership skills to motivate, guide and encourage employees. As the leader, you have to tune in and acknowledge each individual in the team. Leadership skills directly influence your staff to: freely strive to achieve the goals and objectives of the organisation; and act responsibly and take possession of individual roles whilst feeling a sense of personal accomplishment. The following qualities are well worth developing for any manager to encourage their team to reach new heights. 1. Never limit your interactions to a group setting or think of the team as just a group. What makes the team so special is all the diverse individuals within the group. When you approach your team both as individuals and as a collective group, you gain your greatest return. 2. Each individual should make their own inimitable contribution. Your job as the leader is to inspire each person to do their best first for themselves and then for the team. A team is like baking a cake. Each ingredient in the recipe adds its own value to the end result. 3. Communicate constantly and openly. Through communicating with your team and connecting with them, you create an environment through which they can produce at their highest level. Thus, be assertive rather than being aggressive. 4. Are you managing people or activities? Sit back, look in the mirror, and ask yourself: Am I doing everything I can? Look at each individual in that team. Find out their values and priorities. What motivates each person? What are their talents? Checking the temperature of each individual is an ongoing process. Leaders of winning teams are always working, observing and asking.

4 5. Do one-on-one coaching. Focus on each individual s strengths and weaknesses. Spend 2 10 minutes with each team member daily. When they come to expect their time ; trust will develop and moving beyond one s comfort zone becomes easier. The coach s job is to help them succeed. The best coaches ask rather than tell. Ask team members for their opinions and listen. 6. Create the open door policy. By asking and listening you can build trust and you show them that you are available for them. LITIGATION CASE LAW THE LAW AND PRINCIPLES RELATING TO CONSTRUCTIVE DISMISSAL There are situations which arise where an employee resigns and subsequently claims that they have been constructively dismissed. Section 186(1)(e) of the Labour Relations Act 66 of 1995 defines constructive dismissal as the situation where an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee. There are several factors included in this definition. These can be summarised as follows: The employee must have terminated the employment relationship The employment situation had become intolerable The intolerable situation must have been created by the employer The resignation of the employee was the last resort. In a dispute of constructive dismissal the burden of proof is on the employee to establish that the intolerable situation existed and as such a constructive dismissal took place. The burden is not on the employer to prove that the intolerable situation did not exist. The courts have stated the elements that must be proven in order to prove that a constructive dismissal has taken place. In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), the Court referred to Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC), stated that the employee s resignation was motivated solely by the belief that the employer will never reform or abandon the pattern of creating an unbearable working environment. In addition, the employee would have carried on working indefinitely had the unbearable situation not been created. The court went on to state that should the employee be wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned. In light of the above, it becomes apparent that the test for constructive dismissal is an objective test, rather than a subjective one. In other words, the employee must prove that any reasonable person in

5 the same situation would have viewed the continued employment relationship as intolerable. As such, the mere feelings of the employee is not sufficient to prove the existence of the intolerable situation or the constructive dismissal. Further, the situation must be so intolerable that resignation is the only reasonable option available to the employee. It needs to be pointed out that resignation does not need to be the only option, but merely the only reasonable option. This would of course also need to be proven to be the objective situation. As with any dispute referred to an appropriate forum, each case where an allegation of constructive dismissal is made must be judged on its own merits. Further, it becomes clear that a situation such as the ones mentioned above can be avoided if an employer simply conducts fairly and in accordance with applicable legal principles. In Watt v Honeydew Dairies (Pty) Ltd the commission stated that an employee bears a considerable risk in the case of constructive dismissal. In the first place, one of the requirements of a constructive dismissal is that the employee must resign. This in turn means that if such employee is unable to show the requisite conditions that render continued employment intolerable, then that the resignation remains valid. There are situations where conduct of the employer has been determined to amount to a constructive dismissal. These situations include, for example, where an employer unilaterally changes an employee s terms and conditions of employment, fails to take action in cases of sexual harassment or takes unfair disciplinary action against an employee. As with any allegation of constructive dismissal, the employee must prove the existence of any of the aforementioned situations.

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