In the realm of employment, medical certificates play a crucial role in determining an employee’s ability to work and their entitlement to sick leave. However, there are instances where employers may find it necessary to challenge the validity or authenticity of a medical certificate presented by an employee. When such challenges arise, there is a shift in the onus of proof, requiring the employee to provide evidence to substantiate their claim of incapacity. This shift is rooted in the Law of Evidence Act, which recognizes medical certificates as hearsay evidence. Under normal circumstances, a medical certificate is considered prima facie evidence of an employee’s incapacity to work. It serves as a reliable document issued by a medical professional, attesting to the employee’s medical condition and their inability to perform their duties. However, there are situations where employers may suspect potential abuse or question the employee’s true state of health. In such cases, employers have the right to challenge the medical certificate and request further evidence to support the employee’s claim. According to Section 3(4) of the Law of Evidence Act, the value of evidence, whether oral or written, depends on the credibility of the person giving that evidence. This provision places the burden on the employee to lead evidence and establish the veracity of their claim when their medical certificate is challenged. Merely presenting a medical certificate is not sufficient to satisfy the burden of proof, as it is considered hearsay evidence without further substantiation. When faced with a challenge to their medical certificate, employees must provide additional evidence to demonstrate that they were genuinely unable to work and to indicate the extent of their incapacity. This evidence may take various forms, such as additional medical reports, test results, or expert opinions. By presenting such evidence, employees can strengthen their case and provide the necessary credibility to their claim of incapacity. It is important to note that employers should approach the challenge of medical certificates with caution and fairness. While there may be instances where employers suspect abuse, it is essential to maintain a respectful and confidential approach throughout the process. Privacy laws and employment regulations should be upheld, ensuring that the employee’s personal health information is handled with the utmost care and sensitivity. In conclusion, when employers challenge the validity or authenticity of a medical certificate, the onus of proof shifts to the employee to provide evidence supporting their claim. This shift is based on the Law of Evidence Act, which considers medical certificates as hearsay evidence. Employees must lead credible evidence to substantiate their incapacity to work and provide a clear indication of the extent of their inability. Employers, on the other hand, should approach the process with fairness, respect privacy laws, and establish transparent policies and procedures for verifying medical certificates. By maintaining a balanced approach, employers can uphold the rights of both the organization and the employee while ensuring the appropriate use of sick leave and the overall well-being of the workforce.

In today’s digital age, cyber threats have become an ever-present danger for individuals and organizations alike. Phishing emails, in particular, continue to be a common tactic used by cybercriminals to deceive unsuspecting recipients and gain unauthorized access to sensitive information. Recently, the Department of Employment and Labour issued a warning regarding a specific phishing email that has been circulating, targeting employers involved in the Employment Equity Reporting process. Employers need to be vigilant and take necessary precautions to protect themselves and their data from such malicious attacks. The phishing email in question is designed to trick recipients into clicking on a link labeled “REPORT.” It is important to note that this email is not legitimate and should not be responded to or clicked on under any circumstances. By clicking on the link, unsuspecting users may unknowingly provide cybercriminals with access to their systems or inadvertently download malware that can compromise sensitive information. The timing of this phishing campaign is particularly concerning, as it coincides with the Employment Equity Reporting season. With approximately 27,000 report submissions anticipated based on previous years’ numbers, it is crucial for employers to remain cautious and take proactive measures to safeguard their data. To mitigate the risk of falling victim to phishing attacks, designated employers should implement the following best practices: Employee Education: Conduct regular training sessions to educate employees about the dangers of phishing emails and how to identify them. Teach them to scrutinize the sender’s address, check for grammatical errors or inconsistencies in the email content, and avoid clicking on suspicious links or downloading unknown attachments. Robust Security Measures: Ensure that your organization’s IT infrastructure is equipped with the latest security measures, including firewalls, antivirus software, and spam filters. Regularly update and patch all software applications to address any vulnerabilities that cybercriminals may exploit. Incident Response Plan: Develop a comprehensive incident response plan that outlines the steps to be taken in the event of a security breach or phishing attack. This plan should include procedures for isolating compromised systems, notifying affected individuals, and engaging with relevant law enforcement agencies. Reporting Suspicious Emails: Encourage employees to report any suspicious emails immediately to the IT department or designated security personnel. Prompt reporting can help identify emerging threats and allow for timely mitigation measures to be taken. In addition to the measures mentioned above, it is crucial for IT departments to be proactive in blocking and filtering phishing emails. Implementing robust email filtering solutions can help identify and quarantine malicious emails before they reach employees’ inboxes, reducing the likelihood of successful attacks. As the Employment Equity Reporting season is in full swing, designated employers have a responsibility to protect both their own data and the sensitive information of their employees. By remaining vigilant, implementing security best practices, and educating employees about phishing threats, organizations can minimize the risk of falling victim to these malicious attacks.

In today’s fast-paced and ever-changing business landscape, the way managers lead their teams can significantly impact employee wellbeing and overall organizational performance. Unfortunately, the presence of narcissistic managers within companies poses a threat to both. Narcissistic managers exhibit traits such as excessive self-importance, the need for constant admiration, disregard for others’ feelings, and a lack of empathy. These characteristics undermine employee wellbeing and hinder workforce productivity. When employees are subjected to such toxic leadership, their morale, job satisfaction, and mental health suffer, leading to increased turnover rates and decreased overall company performance. In today’s disruptive world, where change has become the norm and agility is a prerequisite for success, leading with Emotional Intelligence (EQ) has become more critical than ever before. EQ encompasses skills such as self-awareness, empathy, effective communication, and the ability to connect with and understand others’ emotions. As organisations face rapid digital transformations and global challenges, leaders who prioritize EQ create a positive work environment, foster meaningful relationships, and cultivate employee engagement, thereby enhancing overall company performance. Dealing with Narcissistic Employees and Managers: Build self-awareness: Encourage employees and managers alike to develop self-awareness by reflecting on their actions and their impact on others. This helps in recognising and addressing narcissistic tendencies. Provide training and development programmes: Offer workshops and training sessions on EQ, conflict management, and effective communication to empower employees with the necessary skills to deal with narcissistic behaviour. Encourage open dialogue: Create a safe space for employees to express their concerns, provide feedback, and voice their experiences. Transparent communication channels help address grievances and promote a healthy work environment. Foster a supportive culture: Develop a culture that values collaboration, empathy, and respect. This encourages employees to support one another, minimizing the negative effects of narcissistic behaviour. The Code of Good Practice on Harassment in South Africa requires employers to proactively address workplace harassment, including instances related to narcissistic behaviour. Employers must cultivate a culture of zero-tolerance for harassment, provide training on recognizing and addressing such behaviour, and establish formal procedures for reporting and investigating complaints. By adhering to the Code, companies can protect employee wellbeing, ensure a harmonious work environment, and mitigate potential legal and reputational risks.

Employment contracts serve as the foundation of the employer-employee relationship, setting out the terms and conditions of employment. In South Africa, the Basic Conditions of Employment Act (BCEA) provides guidelines for these contracts, ensuring fair treatment and protection for both parties. Section 29 of the BCEA outlines the minimum requirements that must be addressed in employment contracts. Additionally, employers should consider incorporating clauses that address advancements in law and technology, such as adherence to the POPI Act, Cybercrimes Act, Substance Abuse, Bring Your Own Device, and the regulation of Remote Work. Section 29 of the BCEA (see s29 for a detailed list) stipulates that an employment contract must contain the following minimum provisions, including: Identity and details of the employer and employee: This includes the full name, contact information, and physical address of the respective parties. Nature of the employment: The contract should specify whether the employment is for a fixed term or permanent, as well as the position and title of the employee. Place of work: The contract should state the physical location where the employee will be required to work. Working hours: The number of hours expected from the employee per day or week should be clearly indicated, along with any requirements for overtime work. Remuneration: The contract must specify the amount and frequency of payment, as well as other benefits such as bonuses, allowances, or provisions for deductions. Leave entitlement: Details regarding annual leave, sick leave, maternity leave, family responsibility leave, and other applicable leave types should be outlined. Notice periods: The contract should contain information about the length of notice required from both the employer and the employee for termination or resignation. Disciplinary and grievance procedures: Employers must include details on the procedures to be followed in cases of disciplinary actions and grievances. Also remember that any changes to the essentials such as job title, promotions, demotions, transfers and remuneration must be committed to writing. Employers should recognize the importance of addressing developments in law and technology within their employment contracts. Adherence to laws such as the Protection of Personal Information Act (POPI Act) and the Cybercrimes Act is crucial, as it establishes the employer’s commitment to protecting employee data and ensuring cybersecurity. Furthermore, contracts should include provisions relating to substance abuse in the workplace to protect the wellbeing and safety of employees. Employers should clearly outline their policies regarding the use and abuse of drugs or alcohol, as well as any supportive programs they offer. Incorporating policies surrounding “Bring Your Own Device” (BYOD) is another crucial consideration. With the growing prevalence of remote work and the use of personal devices for work-related tasks, contracts should clearly outline the responsibilities and expectations regarding the use of personal devices for work purposes. This includes data security practices and protecting company-sensitive information. Lastly, considering the rise of remote work, employment contracts should also address regulations specific to remote work arrangements. This may include expectations for communication, productivity, working hours, and the provision of necessary resources for remote employees. Establishing clear and comprehensive employment contracts is essential for both the employer and the employee. Section 29 of the BCEA provides minimum requirements that must be included, ensuring fairness and protection. However, employers should also adapt their contracts to address developments in law and technology to ensure compliance with regulations such as the POPI Act, Cybercrimes Act, Substance Abuse, BYOD, and regulations for remote work. Doing so will create a solid foundation for the employment relationship, benefiting both parties involved.

In the case of REEFLORDS PROPERTY DEVELOPMENT (PTY) LTD V ALMEIDA (JA72/2020) [2022] ZALAC 8, an employee was called into a meeting with three senior colleagues to discuss a transfer. She was told she had to move out of the sales department and into the employer’s development department where she would be taking on a marketing function. ​ The employee declined the proposal as she did not have marketing experience. Her refusal was ignored. ​ In response to this, she lodged a grievance as she believed the change was a demotion. Her grievance was not resolved and the employer gave the employee notice in terms of section 189(3) of the Labour Relations Act 66 of 1995 (LRA) of her possible dismissal based on its operational requirements. The notice cited that because of the restructuring of the business, her position was made redundant. The only way to avoid retrenchment was to accept the marketing position. ​After further consultations, a contract of employment for the new position was provided to the employee. ​ However, the contract omitted requests made by the employee related to training and a travel allowance. ​She informed her employer she could not accept the contract. ​ Following a final meeting, the employee was informed that she was to be retrenched and was not required to serve a notice period.​ Aggrieved by the outcome of the consultations, the employee approached the Labour Court (LC). ​ The LC found that the employer should have embarked on consultations before transferring the employee and making her post redundant. ​The LC was of the view that there was no joint consensus-seeking process. The LC believed that, if the training and travel expenses had been included in the written terms and conditions of the marketing executive post offered, it would not have been rejected as an alternative to retrenchment.​ The LC found that the employee’s retrenchment was substantively unfair as the employer had failed to establish that she had unreasonably refused to accept an offer of alternative employment. ​The Court was of the view that her dismissal could have been avoided.​ The LC found that meaningful consultation in the context of retrenchment must be genuine and undertaken with the purpose of seeking alternatives to avoid dismissal. Since the employee did not seek reinstatement, the LC ordered the employer to pay the employee six months’ remuneration with costs.​ On appeal, the Labour Appeal Court (LAC) found that in refusing to adhere to the terms of the agreement previously reached, the employer acted both in bad faith and unfairly. ​ The offer of the alternative position, without training, was unreasonable.​ The LAC agreed with the LC, finding the dismissal of the employee both procedurally and substantively unfair. ​

Probationary periods are a common practice in many organizations, allowing employers to assess the performance and suitability of new employees before making a final decision on their permanent employment. While probationary periods serve a purpose, they are often over-rated and can lead to misconceptions about the rights and obligations of both the employer and the employee. This article explores the concept of probation and sheds light on its limitations and potential drawbacks. Understanding Probationary Employment Under Schedule 8 of the Labour Relations Act (LRA), employers have the right to appoint individuals on probation for a reasonable period to evaluate their ability to perform the job. During this time, the employer bears the responsibility to evaluate, instruct, train, guide, and counsel the employee to ensure their development. However, it is essential to note that even during the probationary period, employees are entitled to certain rights and protections. The LRA emphasizes the importance of due process, including the right of representation, before any decision to dismiss a probationary employee is made. Probation vs. Permanent Employment The main differences between a probationary employee and a permanent one lie in the substantive obligations and the time required to address performance issues. The time given to remedy non-performance or address any concerns during probation may be relatively shorter for a probationary employee. Limitations and Potential Drawbacks While probationary periods can be beneficial for both employers and employees, they are not a foolproof method for evaluating long-term job performance. There are several limitations and potential drawbacks associated with probation: Inadequate Evaluation Time: The duration of probation may not provide a comprehensive assessment of an employee’s capabilities, especially for roles that require extensive training or involve complex tasks. A brief probationary period may not allow sufficient time to observe an employee’s full potential. Limited Training and Development: Employers may be tempted to reduce investment in training and development for probationary employees, assuming that their short-term commitment does not warrant significant investment. However, this approach may hinder the employee’s growth and impact their ability to perform effectively. Unclear Expectations: Employers sometimes fail to communicate clear performance expectations to probationary employees, leading to misunderstandings and potential unfair dismissal cases. Clear guidelines and regular feedback are crucial to enable employees to meet the required standards. Unfair Dismissals: Although the LRA requires due process and the right of representation before dismissing a probationary employee, instances of unfair dismissals can still occur. Employees may be let go without proper evaluation or without being provided with sufficient opportunities to improve. Probationary periods can be a useful tool for employers to assess the suitability of new employees and their ability to perform a given job. However, it is important to recognise the limitations and potential drawbacks associated with probation. Employers must fulfill their obligations to evaluate, train, guide, and counsel probationary employees, ensuring a fair and objective assessment of their capabilities. Likewise, employees should be aware of their rights and entitlements during the probationary period to protect themselves from potential unfair treatment. By understanding the nuances of probationary employment, both employers and employees can foster a more transparent and equitable work environment.

In Umgeni Water V Naidoo And Another (11489/2017P) [2022] ZAKZPHC 80 (15 December 2022) The employer was involved in the bulk distribution of water in KwaZulu-Natal. The state-owned entity (SoE) designed a graduate development programme. The employer accepted selected graduates from universities onto the programme with the hope that they would remain with the employer once they had successfully completed it. The employee successfully applied for a place on the programme. The requirement for the post was, at least, a bachelors degree in engineering. The employee said that he had a B.Sc. degree in Engineering that he had obtained from the University of KwaZulu-Natal (UKZN). He produced a copy of his degree and academic results which resulted in his appointment. The employer alleged that the employee’s qualification were false and fraudulent and that he did not have a B.Sc. degree from the University, or from any other university. The SoE gave evidence that it would not have appointed the employee if it had known that the employee did not have the relevant qualifications. The employee worked for the SoE from 1 September 2008 until the employee’s resignation, in 2016. Upon discovering of the fraud, the employer sought the repayment of all amounts that it paid the employee. The SoE applied to have the monies recovered from the employee’s pension benefit. The essential issue to be determined, therefore, was if the employee had graduated from UKZN with a B.Sc. degree in Chemical Engineering or if there was fraud present. The Employee’s Degree Could Not Be Verified The employee presented nothing to the employer to substantiate that he had a degree. He then tendered his resignation and said that he would serve out his month-long contractual notice. This was not accepted by the employer, as disciplinary proceedings had by then already began against the employee. However, a few days later, on 29 November 2016, the employee submitted another resignation letter, indicating that he now would be resigning with immediate effect. The Disciplinary Process The employer called a witness from the university to testify that the employee begun his studies in the Faculty of Chemical Engineering in 2002 but was thereafter excluded from that faculty in 2004 because he had failed to make significant academic progress with his studies. By way of contrast, the academic record relied upon by the employee showed six years of successful study and made no reference at all to him being excluded from the faculty. The Court Process The High Court (HC) found that the employee had committed fraud and further that the employer intended to contract with the employee on the basis that it believed that he had the required degree from UKZN. It turned out that he did not have that degree. Had the employer known this, it would never have contracted with the employee or appointed him to any position. In other words, no relationship with the employee would have been developed and no money would consequently have been paid to him by the employer. The employer claimed the return of all that it paid the employee. Where restitution is claimed, the party claiming it is ordinarily required to tender that which it had received during the disputed relationship. The HC found that once the employer proved the fraud committed against it, and that the contract had been terminated, it had become entitled to repayment of the amounts that it paid the employee in the absence of any evidence proving that restitution would be unjust. On the evidence led before the HC, it found there was no grounds to justify the employee not paying the employer back what had been paid to him during his employment. The employee was ordered to return what he received from the employer arising out of the fraud that he committed against it. Accordingly, the HC granted the following order: Judgment in favour of the employer against the employee for payment of the amount of R2203565.04; Interest on the judgment amount at the prescribed legal rate of interest from the date of demand to the date of final payment; Declaring that the employer is entitled to execute this judgment against the employee’s provident fund administered by the second defendant; The employee would pay the employer’s costs on the scale as between attorney and client. This case sets a great precedent for the employer’s right to recover damages arising from fraud. It is important to ensure proper verification processes as well as have your offer of employment letters address the conditions of employment.

In the case of INDEPENDENT RISK DISTRIBUTORS SA (PTY) LTD V CCMA AND OTHERS (JR 1906/19) [2022] ZALCJHB 282 The employee was charged with misconduct, for gross insubordination. The employer took issue with the employee for challenging and/or undermining the authority of the company’s CEO during a staff meeting which was held on 05 December 2018, by questioning and/or challenging an instruction issued by the CEO whilst in the presence of his colleagues. The purpose of the meeting was for the CEO to address the Sales Representatives’ underperformance. During this meeting, the CEO issued an instruction to all the Sales Representatives, including the employee, to go home and reflect on their performance. According to the employer, the employee proceeded to challenge and/or undermine the authority of the CEO during the meeting by questioning and/or challenging the instruction in a rude and disrespectful manner in the presence of his co-workers. In response to the conduct, a disciplinary hearing was held on 23 January 2019, and he was found guilty of the allegations and dismissed on 31 January 2019. The employee escalated the matter to arbitration. In his evidence, the employee denied disrespecting the CEO or being insubordinate and testified that all he asked was why he was part of the non-performers. He did not refuse to carry out an instruction from the CEO, but merely sought clarity. After analysing the evidence and argument, the Arbitrator found that the employee’s dismissal was substantively unfair and ruled that the employer should reinstate him to his position on the same terms and conditions obtained prior to his dismissal and that he must report for duty on 20 August 2019. The employer took this award on review to the Labour Court (LC). The Court found that the sanction of dismissal is reserved for instances of gross insolence and gross insubordination or the wilful flouting of the instructions of the employer.” This means the insubordination must be serious, persistent, and deliberate. The LC agreed with the Commissioner’s conclusions that the insubordination in question was not gross insubordination and did not warrant dismissal. It found that the employee’s questions at the meeting were aimed at seeking clarification regarding why he was also being sent home, despite not having poorly performed, and once that clarification was given, he complied with the instruction to go home. What was more, it is accepted that employees do not lose their Constitutional Rights as guaranteed in the Bill of Rights, such as freedom of expression guaranteed in section 16(1) of the Constitution of the Republic of South Africa, 1996, merely by reason of being in the workplace. Having considered the submissions, and the law, the LC found that the dismissal of the employee by the employer was substantively unfair and the Commissioner’s ruling was upheld.

In today’s rapidly changing and disruptive world, where job profiles and skill sets evolve at an unprecedented pace, it is crucial for employers to distinguish between employee misconduct and incapacity. Understanding whether an employee is incapable of meeting job requirements or engaging in intentional misconduct is essential for appropriate management and decision-making. By carefully investigating relevant information and considering specific questions, employers can gain insights to differentiate between the two scenarios. Here are some guiding questions to help in the process: Is the employee aware of the standard or performance requirement? The first step in determining misconduct versus incapacity is assessing the employee’s awareness of the expected standards or performance requirements. Misconduct suggests that the employee is consciously deviating from established rules or expectations. If it becomes evident that the employee is fully aware of the standards but fails to meet them intentionally, misconduct is more likely the issue at hand. Is the job content unchanged (i.e., the same as it used to be)? A significant alteration in job content or responsibilities can contribute to an employee’s incapacity to meet performance requirements. If the nature of the job has changed substantially, such as through significant technological advancements or organizational restructuring, the employee may struggle to adapt, resulting in incapacity rather than misconduct. Do the employee’s personal circumstances seem to be fine? Personal circumstances can have a significant impact on an employee’s ability to perform their duties. If the employee is experiencing personal challenges, such as health issues, family problems, or financial difficulties, it may hinder their performance and suggest incapacity rather than misconduct. Understanding the employee’s personal situation can provide valuable context for evaluating their behaviour. Has the employee been trained in respect of that position? Proper training is essential for employees to meet job requirements effectively. If an employee lacks the necessary training or has not received adequate support to perform their role, it may indicate incapacity rather than deliberate misconduct. A lack of training can result in employees struggling to meet expectations, even if they have the intention to do so. Are the standards reasonable and achievable? Evaluating the reasonableness and achievability of performance standards is crucial when differentiating between misconduct and incapacity. If the standards are unreasonably high, unattainable, or not clearly communicated to the employee, it can contribute to their incapacity to meet expectations. In such cases, incapacity procedures should be invoked to explore the underlying causes. By considering these guiding questions, employers can gain a better understanding of whether an employee’s behavior stems from intentional misconduct or genuine incapacity. If the answers to all the questions indicate that the employee is aware of the standards, the job content remains consistent, personal circumstances are not a significant factor, the employee has received appropriate training, and the standards are reasonable and achievable, then misconduct is likely the issue. However, if the answer to any of these questions is “no,” it suggests that the employee may be facing underlying challenges or incapacity issues. In such instances, employers should initiate incapacity procedures to further investigate the causes and provide appropriate support to help the employee overcome their limitations. Differentiating between misconduct and incapacity is crucial for fair and effective employee management. By following a systematic approach and considering the relevant factors, employers can make informed decisions that promote a positive work environment while addressing performance issues appropriately.

When an employee absconds and deserts their employment but later wishes to return and resume work, the employer should generally follow a fair and reasonable process to address the situation. Herewith some guidelines in this regard: Review the employment contract : Examine the employee’s contract to determine if it contains any provisions regarding absconding or desertion and the consequences of such actions. The contract may outline specific procedures to be followed. Contact the employee : Once the employee returns and expresses a desire to resume work, contact them to discuss the situation. Arrange a meeting to clarify the reasons for their absence and gather any necessary information. Conduct an investigation : During the meeting, conduct an investigation to determine the facts surrounding the employee’s absence. This may involve asking the employee questions, reviewing any supporting documentation they provide, and speaking to other relevant parties. Hold a disciplinary hearing : If the investigation reveals that the employee’s absence constituted misconduct or a breach of the employment contract, hold a disciplinary hearing. Provide the employee with a notice of disciplinary hearing, clearly outlining the allegations against them and the date, time, and location of the hearing. Allow the employee to present their case : At the disciplinary hearing, provide the employee with an opportunity to present their side of the story, provide any evidence or witnesses in their defence, and respond to the allegations against them. Make a decision : After considering the evidence presented at the disciplinary hearing, make a fair and impartial decision. If the employee is found guilty of misconduct, consider an appropriate disciplinary sanction based on the severity of the offence and any relevant mitigation factors. Communicate the decision : Inform the employee of the disciplinary decision in writing, clearly explaining the outcome, any disciplinary action imposed, and the reasons for the decision.