by Ivan Israelstam
You need to know that labour law is doesn’t exist in the statutes alone. Our labour legislation deals largely with broad legal principles but are, in many areas, sorely lacking when it comes to detail.
- The Labour Relations Act (LRA) makes it clear that when you need to decide if a dismissal is acceptable in law, the arbitrator or judge must look at if the dismissal was fair. Schedule 8 of the LRA gives general guidelines about what’s fair and unfair.
The most comprehensive guidelines can’t always indicate what’s fair
This means you need to look at case law for more detailed guidance about what would be fair in specific circumstances as well as your own rules, terms and conditions of employment. For example:
- It isn’t easy to discipline an employee for breaking a rule if he can show he had no idea that the rule existed:
- In the case of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583), employee x was dismissed for a variety of reasons, including the fact that he swore.
- However, the arbitrator found there was no rule against swearing at the workplace.
- The absence of the rule against swearing – together with the lack of evidence on the other charges – led the arbitrator to find that the dismissal was unfair and to award the employee 12 months’ remuneration as compensation.
- It could be argued that for an employee to be found guilty of misconduct there doesn’t need to be a rule against swearing. In other words, employers would want to argue that swearing at the workplace is universally known to be unacceptable, making the inclusion of an anti-swearing rule unnecessary.
- However, the LRA’s Code of Good Practice: Dismissal says that employers should inform their employees of their rules. This implies that it’s the employer’s responsibility to prove the rule exists and that the employee knew about it.
2 Reasons why do you need to update your terms and conditions of employment
1. You may need your employees to accept transfers to new locations or to a different shift. If you don’t include the possibility of your employees moving locations or shifts in their signed employment conditions, you will have a hard time forcing an employee to make a move.
2. You aren’t allowed to suspend your employees unfairly. One unfairness element could be the extreme length of the employee’s suspension period:
- If your disciplinary code doesn’t cater for protracted suspensions, a drawn-out suspension period could be considered unfair even if you are still paying your employee.
Protracted suspensions could be unfair on you, your employee and the general public because when your employee is being paid to sit at home not working, you bear the cost of him sitting idle.
You need to revamp your disciplinary code – fast!
The standard clauses in your disciplinary code are no longer sufficient because provision also needs to be made for exceptions. For example:
- If you want to be able to discipline an employee twice for the same act of misconduct, you need to make sure your disciplinary code provides for this. In the case of BMW (SA) (Pty Ltd vs Van der Walt (CLL vol. 13 No.5 page 49):
– The Labour Appeal Court held that for a second hearing for the same misconduct incident to be fair, the employer’s disciplinary code must allow this.
– In addition, holding a second hearing must be fair and it will only be fair in exceptional circumstances.
If you don’t update your company’s rules, disciplinary codes, terms and conditions of employment based on new case law decisions, you’ll be caught short in terms of implementing discipline and dismissing employees.
This article first appeared on HR Pulse.