The success of a disciplinary enquiry (DE) often depends on the effort which the representative puts into the preparation of the case. The value of thorough preparation cannot be emphasised enough. Regardless of whether the disciplinary enquiry will result in formal or informal disciplinary action, an investigation should always be done in order to make sure of the facts of the matter. It is not enough for the employer representative to rely on allegations, suspicions, or views in the disciplinary enquiry. The facts of the matter have to be investigated in sufficient detail in order to make a decision about if the disciplinary process is to be initiated and/or what sanction could possibly attach to the contravention. 3 Main Stages There are three main stages of disciplinary enquiry. These are the following: The Investigation, Conceptualisation Of The Case, and Formulation Of Charges. Learn how to Conduct a Disciplinary Enquiry Correctly with Global Business Solutions (GBS) In our Effective Discipline in The Workplace Course, you’ll gain practical skills required by both the initiator and the chairperson, the types of evidence and their weightings, how to present the evidence as well as how a chairperson should determine guilt on a balance of probabilities. Here’s a breakdown of what will be covered:

When addressing the equal pay for work of equal value requirements, organisations may be found wanting in the area of Temporary Employment Services (TES). In section 198, the Labour Relations Act (LRA) provides that employees of a TES who earn below the threshold and are placed on a client’s site are entitled to equal treatment. This requires the client and the TES to collaborate and align the overall cost to the company and employment terms of the TES employees with those of the client’s comparable permanent counterparts. In practice, this means that the client and the TES need to consider salaries and wages, annual leave provisions, and even access to vacancies and training of the TES employees. It may require the client to revise some policies such as recruitment policies, remuneration policies, and the like. There is significant financial and reputational risk tied up in non-compliance with these important provisions with CCMA awards amounting to millions of rands not being uncommon. Attend Our Equal Treatment And Equal Pay For Work Of Equal Value Online Workshop If you would like to learn more about equal pay provisions (such as those described in the article above) in your area of business then you need to attend our Equal Treatment and Equal Pay for Work of Equal Value Workshop on 15 April which is facilitated by John Botha and Thembi Chagonda .

The COVID-19 pandemic significantly shifted the way in which people work. There has been a push to move online and, as a result, a number of work-from-home arrangements have been made. However, these types of arrangements pose challenges to management in terms of monitoring performance and ensuring that work outputs are timeously delivered. A case in point is that of Lucas Dysel Crouse Incorporated v Commission for Conciliation, Mediation and Arbitration and Others (C784/2018) [2021] ZALCCT 3 (19 February 2021) . In this matter, an employee was taken to task for her excessive use of social media during working hours and also for accessing confidential information. Facts Of The Case In this matter, the employee was employed as a typist. On one occasion, she was filling in for the bookkeeper at reception and happened to see a sheet on which the salaries of all employees were detailed. The employee noticed that other employees had received pay increases while she had not. Subsequently, the employee took this matter up with management. The employer gave evidence that her performance at work was ‘slapdash’, as evidenced by the typing errors in her work, and that she spent excessive time on social media and playing games during work hours. The employer further stated that he should have fired her a long time ago, however he felt sorry for her. During the engagement with the employee, he invited her to resign. Her response was that the employer ‘should do what he wanted to’. This remark was construed as insubordination and, as a result, the employee was dismissed. The CCMA found that the dismissal of the employee was substantively unfair but procedurally fair. The employer was ordered to pay nine months' compensation. On review to the Labour Court, the Court overturned that decision finding that the employee had been spending excessive time on social media while the rest of her work was not being done. Although the Court found that she was not guilty of insubordination, they did find that the amount of time she spent on social media – including Facebook – was a problem. The employee’s Facebook usage, in the evidence, made up 54% of her non-work computer usage. Owing to this, the Labour Court confirmed that the decision of the dismissal was fair and not substantively unfair. The employer took a pragmatic approach. Looking at all the evidence, notwithstanding what the charge was, the Court took the view that considering all of the evidence the dismissal was substantively fair. Time spent on social media can be tracked by the employer. Many employees spend excessive time, not working but on social media platforms. If you have any queries, on matters such as the one above or other labour-law-related matters, please don’t hesitate to contact me at johnny@globalbusiness.co.za or Grant at grant@globalbusiness.co.za .

Equality in remuneration is gaining statutory and litigious momentum with the existing provisions of the Employment Equity Act (EEA) and Codes of Practice underpinning no fewer than 826 CCMA referrals on equal pay disputes over the period April 2019 to February 2020. What is even more concerning is that the pending amendments to the EEA would result in employers losing these cases and not receiving EE Compliance Certificates for three years. This would exclude them from access to state tenders. By law, the EE plan must include measures to address unjustifiable income differentials within a reasonable time period. There are two dimensions to this – Firstly, the horizontal equal pay analysis in which people doing the same, similar or jobs of equal value should as a general principle be earning equitably; and Secondly, the vertical income gap between the top 10% of earners and the bottom 10% needs to be narrowed. Employers would be well positioned if they conducted the necessary analysis, identified gaps, drafted remuneration policies, and took steps to address these areas. Attend our Equal Treatment and Equal Pay for Work Of Equal Value Online Workshop If you would like to learn how to conduct the necessary analysis, identify gaps, draft remuneration policies, and take steps to address these areas, you need to attend our Equal Treatment and Equal Pay for Work of Equal Value Workshop on 15 April which is facilitated by John Botha and Thembi Chagonda .

The Minister of Employment and Labour has published Gazettes setting out the increases in the National Minimum Wage, various Sectoral Determinations as well as the “earnings threshold”. These will be effective on 1 March 2021 and the table set out below summarises the situation that employers will face come 1 March 2021. It is common knowledge that the business representatives made a minority submission to the National Minimum Wage Commission that most of these increases that are above CPI (3% at the time) would further damage the ailing economy and employment prospects. In particular, the equalisation of farm workers to the general minimum wage with immediate effect from 1 March 2021 represents around a 16% increase and that of domestic workers an 18% increase. These increases come at a difficult time for both employers and employees – the latter struggling to recover from the impact of C19 disruptions on earnings and employment prospects. Employment type Previous rate New rate % increase Impact Earnings threshold R205 433 pa R211 596 pa 3% (R6163) BCEA Chapter 2 working arrangements and certain equal treatment provisions in the LRA NMW General R20.76 ph R21.69 ph 4.5% (93cph) NMW Farm Workers R18.68 ph R21.69 ph 16% (R3.01) NMW Domestic Workers R15.57 ph R19.09 ph 18% (R3.52) Sectoral determinations 4.5% Contract Cleaning, Wholesale and retail etc

Critical for organisations are the amendments that were tabled and approved by Cabinet in February 2020 concerning the Employment Equity Act. In July 2020, the Minister of Employment and Labour published that the Bill would go to the National Assembly to start the Parliamentary process. The Parliamentary Monitoring Group published that the Employment Equity Amendment Bill was now available for public commentary until 19 February 2021. The amendments are fast reaching the point of promulgation and will require an extraordinary employer effort to ensure compliance with some of the amended regulations. What does the Employment Equity Amendment Bill Propose? The most significant amendment to the proposed Employment Equity Act is section 15A which empowers the Minister of Employment and Labour to prescribe numerical targets for sectors at all occupational levels to ensure the equitable representation of suitably qualified people from designated groups. This is followed by section 42, which deals with the assessment of organisational compliance. Specifically, section 42 provides that meeting the Ministerial Targets is a pre-requisite to compliance and the ultimate issuing of a compliance certificate. Finally, section 53(6) is a list of five criteria that an employer must meet to obtain a compliance certificate. Key to this is section 53, which has always been in the Employment Equity Act but has not been operational. It will be put into effect by these amendments. This will mean that State contracts may only be issued to employers who have been certified as being compliant with the obligations under the Employment Equity Act. One of these is the requirement to achieve the above numeral sector targets prescribed by the Minister. What does Not Attaining a Compliance Certificate Mean? Not attaining a compliance certificate would mean that these businesses would not be able to do business with the State. Currently, BBB-EE status is measured in terms of the Preferential Procurement Framework Act in relation to a 10% and 20% evaluation of the total score. This is dependent on the monetary amount of the tender. Should this amendment go through it will have far-reaching implications for those sectors that have not achieved these targets and are not getting a certificate. What is critical is that section 42 is not definitive enough and does not contain a clause that would recognise reasonable steps toward the employer achieving the applicable targets. In terms of section 64, the draft regulations make provision for a designated employer who applies for a certificate of compliance – (to be but has not achieved the applicable targets – to record justifiable reasons for not doing so. However, it is not good enough to have this in the regulations as it needs to be in the Act. In addition, it actively empowers the Minister to delegate his authority of compliance to inspectors. This could lead to far-reaching powers for inspectors. https://www.youtube.com/watch?v=mg-YBDYZKLM&feature=youtu.be The Five Compliance Criteria In Section 53 Interestingly if one looks at section 53 of the Employment Equity Amendment Bill, there are five criteria of compliance for a certificate of compliance: The employer has complied with a numerical target set in section 15A that applies to that employer. If an employer has not complied with any target set, the employer has raised a reasonable ground, to justify its failure to comply as contemplated by section 42(4). The employer has submitted a report in terms of section 21. There has been no finding by the CCMA or a court within the previous three years that the employer breached the prohibition on unfair discrimination in Chapter 2; and The CCMA has not issued an award against the employer in the previous three years for failing to pay the National Minimum Wage. These amendments will have far-reaching consequences if they are passed into law and potentially some significant unintended consequences. Join us for the Employment Equity Amendments – Interpreting, Planning & Implementing as we unpack these amendments and what they mean for your business.

Sometimes, an employee facing dismissal will try to rely on a technicality in order to avoid the sanction posed. The case of South African Commercial, Catering and Allied Workers Union obo Vas / Carnival City Casino – (2019) 28 CCMA 8,37,6 (CCMA ) illustrates such a matter. The employee was dismissed for gross insubordination after making derogatory and abusive remarks (including the comment that she should “go back to China”) about a manager who had told the employee that the employer would not pay for flowers for her mother’s funeral. The employee admitted uttering the words, which has been captured on videotape but claimed that she had apologized and that her conduct constituted insolence rather than insubordination. The Commissioner of the Commission for Conciliation, Mediation, and Arbitration did not get side-tracked by the technicality. It was concluded that the employee’s conduct amounted to insolence rather than insubordination because the employee had not defied an instruction. The comment had been directed not only to the manager but to the Chinese community generally. The employee’s anger at the manager was unjustifiable because she had not taken the decision not to buy flowers and offered to personally contribute some of the money needed for the purpose. The employee’s comments were made in the presence of several other employees. The employee had shown no remorse and the Commissioner held that the dismissal was fair. Contact Global Business Solutions Have an issue, such as the one above, in your company? Contact Grant Wilkinson and the rest of the legal team to help you sort this out, grant@globalbusiness.co.za .

The issue of short time is a contentious one at the workplace . It results in less take-home pay for employees. This was looked at in the National Union of Mineworkers obo Mhlempu / UMSO Construction (Pty) Ltd – (2019) 28 BCCEI 6.7.2. An employee was placed on short notice due to the operational requirements. His wages were reduced from 45 hours a week to 30 hours. The employee claimed that the employer was not entitled to send its employees home on reduced pay, and institute short time, and contended that this amounted to an unfair labour practice. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) noted that “short time” is not defined in the Basic Conditions of Employment Act 75 of 1997 but that the applicable bargaining council agreement defined short time as a temporary reduction of the number of ordinary hours of work due to contingencies beyond the employer’s control which directly affects the employer’s ability to provide work. This also means that if it is not contained in a bargaining council or collective agreement short time cannot be implemented without consent. The Labour Relations Act (LRA) states that collective agreements may vary contracts of employment of parties bound by the agreements. A dispute relating to a short time is properly dealt with by the bargaining council or the Department of Labour. Such disputes do not fall within the definition of “unfair labour practice”. The conclusion that this was not an unfair labour practice was correct. If there had been a collective agreement this would have then been an unfair labour practice. Contact Global Business Solutions In the era of Covid-19, the issue of short time has become ever apparent with many companies being forced into putting their employees on short time in order to survive financially. If you’re in any doubt about policies to apply in your workplace, please contact Marianne Gradwell , marianne@globalbusiness.co.za – who is an HR specialist with us here at GBS – who will be able to assist.

The Employment Equity Act makes paying people – who do the same work at different rates of pay – an offense. This amounts to unfair discrimination. However, what often happens is that employees misinterpret this provision as can be seen in the matter of Food and Allied Workers Union obo Mloyeni and another / Rio Ridge 1377 CC t/a Woza – (2019) 28 CCMA 1.17.2. Two employees, who were both employed as general assistants in the employer’s store, were paid at a lower rate than other general assistants at the employer’s store in East London. One employee claimed that she was performing the work of a sales assistant and should be paid at that rate.  The other employee claimed that the different rates paid in the store amounted to unfair discrimination and “exploitation”. The CCMA Commissioner noted that both employees were paid the minimum rates set in the applicable sectoral determination. Where unfair discrimination is alleged on an arbitrary ground, the employee must prove that the conduct is irrational and indeed amounts to unfair discrimination: The first employee had never been requested to do sales work.  The second employee was unaware of the sectoral determination. All employees at the Queenstown branch were paid the same rate.  In essence, the applicant was attacking the rationale of the sectoral determination.  The employees had, accordingly, failed to prove that they had been unfairly discriminated against. The application was dismissed. Contact Global Business Solutions There are increasing numbers of unfair discrimination cases, based on differences in pay, which are now being lodged. Contact Natalie Singer , who is our equal pay expert, to make sure that cases such as these don’t see the inside of the CCMA.

In the case of the University of Kwa Zulu Natal v Pillay and Others Case No: DA09/2015 , the issue of when an employee will be liable for the costs of an appeal and a review was considered in the Labour Appeal Court. The employee admitted that he had lied to a tribunal established by the university to inquire into the improper awarding of a degree and other suspicious activities.  The Labour Court upheld the finding that dismissal was justified but sent the matter to the same Commissioner to reconsider the issue of procedural fairness .  The Commissioner found that the dismissal was procedurally fair. On review, the Labour Court ruled that the dismissal was procedurally unfair and granted the employee 10 months’ salary.  On appeal, the Labour Appeal Court noted that the prior court had based its findings about procedural fairness on the view that the employee had not had a proper opportunity to answer the charges leveled against him.  The disciplinary inquiry had been convened to establish whether the employee had lied under oath to the investigating tribunal.  The employee had been given a full opportunity to address the university council’s view that he should be dismissed. The presiding officer found that the employment relationship had broken down and recommended that sanction.  The Commissioner’s finding that the dismissal was procedurally fair was eminently reasonable and the Labour Court had not explained its finding to the contrary.  The appeal was upheld and the employee was ordered to pay the costs of both the review and the appeal. Contact Global Business Solutions Our legal team – which Jonathan Goldberg, johnny@globalbusiness.co.za is an integral part of – deals with situations such as these all the time. If you have a similar situation in your company, please don’t hesitate to contact us!