1. ee/er: The Nature of the Employment Relationship Marleen Potgieter May 2009

2. Nov 2004 2 Contents Nature of employment relationship Underlying laws Discipline – Rules and Standards Code of Good Practice/Policies Poor Work Performance Conclusion 01 02 03 04 05 06

3. Nov 2004 3 The Nature of the Employment Relationship

4. Nov 2004 4 Employment Relationship  Law of master and servant  Contractual relationship  Independent Contractor vs Employee  Fairness and Equity

5. Nov 2004 5 Underlying Law

6. Nov 2004 6 The Big Five  The Labour Relations Act  The Basic Conditions of Employment Act  The Employment Equity Act  The Skills Development Act  The Occupational Health & Safety Act

7. Nov 2004 7 The Labour Relations Act [LRA]  Supercedes all other Acts (except Constitution)  Code of good practice - guidelines on fair labour practice  Trumps all employment contracts  Employment contracts provide a structure only

8. Nov 2004 8 LRA (cont’d)  Contracting out of the LRA by collective agreements  Benefits better than those provided for in the Act  LRA ensures fair labour practice in collective bargaining and terminations  Disputes referred to the CCMA/Labour Court

9. Nov 2004 9 LRA (cont’d)  Individual rights to fair labour practice  Dismissals for misconduct/incapacity (poor work performance and illness) and operational requirements (retrenchments or redundancies)  Substantive and procedural fairness

10. Nov 2004 10 Code of Good Practice

11. Nov 2004 11 Introduction (cont’d) Fair procedures, clear communication of standards, consistently applied: The Rule The Knowledge Consistency. Employees must feel safe in the work environment. Such security is created in two ways: firm and fair standards an environment conducive to raising problems

12. Nov 2004 12 Discipline CONSTRUCTIVE APPROACH:  encourages supervisory capacity of management  promotes understanding and acceptance of rules  employees buy into the process

13. Nov 2004 13 Discipline PROGRESSIVE APPROACH  implies that discipline progresses from one level to another  graded system of disciplinary measures

14. Nov 2004 14 LRA Code of Good Practice There are 3 grounds for dismissal: Misconduct Incapacity Operational Requirements

15. Nov 2004 15 LRA Code of Good Practice  Disciplinary measures short of dismissal*  Disciplinary rules - according to size of business, and the circumstances  Standard of conduct must be set  Certainty and consistency  Communicated to employees Misconduct

16. Nov 2004 16 DISPUTES  Misconduct/Incapacity: - CCMA/Conciliation; Con/Arb; Arbitration - Labour Court by agreement/complex matters  Unfair Discrimination/Strikes: -Labour Court

17. Nov 2004 17 CCMA/Labour Court  What is the CCMA – informality/form of address/Code Of Ethics of Commissioners  Describing the Labour Court – concurrent jurisdiction with the High Court  Labour Inspectors  Form of address

18. Nov 2004 18 Dismissal for Misconduct – How Do We Do It?  Necessity of discipline - creates certainty  Awareness of rules - communication  Where are they found? Some self - explanatory/ some in various policies and daily instructions  Transgression - act/omission  corrective action  Fairness/equity/reasonableness  Each case based on its merits  Management responsibility and prerogative

19. Nov 2004 19 Poor Work Performance Clear job specs - standard must be set  Step1 - evaluation  Step2 - communication of shortcomings  Step3 - period of time to improve + guidance/counseling/training/mentoring  Step4 - investigation  Step5 - outcome  termination on notice - no-fault dismissal.

20. Nov 2004 20 Basic Conditions of Employment Act (BCEA)  Minimum requirements, as the name implies  Regulates leave, sick leave, hours of work, overtime etc  Cut-off threshold for overtime R 149 736 per annum - Senior managerial employees - Sales staff who travel to the premises of customers and who regulate their own hours of work - Employees who work less than 24 hours a month for you - Employees who earn more than R149 736 per year (this amount can be changed by the Minister from time to time)

21. Nov 2004 21 Occupational Health And Safety (OHSA)  For all businesses, not just factories  Employees have to take certain responsibility for their own safety  Need a safety committee for all employees more than 50  Most accidents happen because of horse-play and carelessness

22. Nov 2004 22 Employment Equity Act – balancing rights

23. Nov 2004 23 Employment Equity Act (EEA)  Has two important Chapters: Chapter II and III.  It is a constitutional act – has its origin in the Constitution of SA  Chapter II applies to all employers – Chapter III only to designated employers and employees.

24. Nov 2004 24 Unfair Discrimination  Fair and Unfair discrimination  When can we discriminate?  Ensuring understanding in the workplace  Unfair discrimination

25. Nov 2004 25 Unfair Discrimination  Chapter Two of the Employment Equity Act – eliminates unfair discrimination  Most unfair discrimination is indirect  Due to our socialisation process  Create awareness of indirect discrimination  Promote Equality

26. Nov 2004 26 Understanding Discrimination CH2 Prohibition of Unfair Discrimination “S6(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.”

27. Nov 2004 27 Structure of the Act

28. Nov 2004 28 Recognising Skills What is Affirmative Action? Retention and Development Identifying and removing barriers Promoting Diversity Training and Development More than just number crunching

29. Nov 2004 29 EE Compliance Checklist  Have you audited your environment – are you risk free from an unfair discrimination perspective?  Do you have the Summary of the Act displayed?  Have you trained your staff?  Do you have an EE Forum  Is a senior manager tasked with EE? Is it in their KPA’s  Have you done an EE Plan through a consultation process?  Did you submit an EE Report?

30. Nov 2004 30 Summary of Principles  Employees:Protected from Arbitrary Action of Employers  Employers:Satisfactory Conduct &Performance from Employees  Mutual Respect  Fairness  Efficient Business Operations  Sets Ground Rules  Establishes Clear Expectations  Prompt. Fair, Consistent  Progressive &Corrective Discipline  Facts of Each Case

31. Nov 2004 31 Compliance requirements  Employment Contracts  BCEA – minimum hours and overtime  Disciplinary Codes and Policies and Procedures  Standards of performance – what is expected of employees  Good Practice: Performance Contracts  Fair procedure always (paper-trail)  Probationary periods  EE – BEE  Removal of Unfair discrimination

32. Nov 2004 32 For the Tourism Industry Hot-spots are:  Long working hours and an industry under the spot-light  Overtime pay  Unfair Discrimination issues  Not knowing exactly what our rights and obligations are  Complying with the BEE Charter  Sloppy employment contracts  Free-lance employment and ‘casuals’