Please take note that this afternoon Acting President Kgalema Motlanthe declared Tuesday 27 December 2011 as a public holiday throughout the Republic in terms of Section 2A of the Public Holidays Act 1994.

For employees taking holidays over the Christmas and New Year break, 27 December 2011 will no longer be deducted from their annual leave and employees working on this day will now be entitled to public holiday allowances, pursuant to section 18 of the Basic Conditions of Employment Act 1997.

Workplace Strategies

14 December 2011

Smartphones, those handy devices that can browse the web and send/receive email messages, are now the fast growing segment of the cellphone market and research in South Africa indicates that they are entering the market four times faster than PCs and laptops.

Employers have been quick to recognise the possibilities of smartphones and a recent report entitled ‘Mobile Corporation in SA 2010’ suggests that three-quarters of South African companies have now deployed smartphones within their organisations, compared with almost none two years before.

The benefits for employers of providing staff with smartphones are plain to see.    Employees are given virtually 24/7 access to clients and colleagues, with positive effects on productivity and output.   Indeed, employees have warmed to this new technology and its applications.   Survey results suggest that:

• around 70% of workers with smartphones regularly check their email outside normal business hours;
• 42%  of workers log into business email accounts while home on sick leave; and
• 43% of workers connect to email on smartphones in order to get ahead and ease their workloads for the following business day.

However, when it comes to employees armed with smartphones, significant risk comes with the rewards.   Consider this hypothetical.

Jane works for a professional services firm in the financial industry.   She is well qualified and perceived as a rising star in the organisation.    In her three years of service, not once has Jane acted against the interests of her employer and her highly-developed communication skills, particularly with clients, have won her considerable praise.    After a particularly bad day at the office, in which  she receives unfounded accusations by a major client, Jane goes home, smartphone in hand, and relaxes with a glass of wine.   Or three.     The injustice of the day’s events cannot be shaken from her mind and late into the evening, she decides to send an email to the client outlining her thoughts.      This is not a good decision.  Free from the confines of the office environment, Jane’s late-night email includes statements that she would never have said had she been in the office in front of her laptop.      The results, for both Jane and her employer, are disastrous.     

Jane’s ill-advised email is one of many potential risks that employers must address because of the use of smartphone technology.

Companies must urgently revisit their Information Technology (IT) Policies with a view to:

• ensuring they have expanding acceptance usage and communication policies to encompass smartphone applications;
• addressing situations where employees may copy and remove confidential information using a smartphone’s camera or Bluetooth ^TMcapabilities;
  • requiring smartphones, like PCs and laptops, to be enabled with security software and password protection;
  • addressing whether communication via smartphones can constitute after-hours work, giving rising to overtime payment claims; and
  • ensuring that employees using their personal smartphone do not retain company data, once the employment relationship is at an end.

Workplace Strategies is a consulting firm assisting organisations with people management.   It has extensive experience in workplace policy formulation and implementation.

For more information see:

web: www.workplacestrategies.co.za

email info@workplacestrategies.co.za

Employers are reminded that employment equity (“EE”) reports must be submitted to the Department of Labour by 1 October each year.

Who must comply?

Companies must submit EE reports if they are deemed to be “designated employers” for the purposes of the Employment Equity Act 1998 (“the Act”).     Designated employers are companies employing more than 50 employees and any company with an annual turnover that is more than the sector-specific income thresholds outlined in the Act.    The thresholds vary greatly from one industry to another and are currently:

• Agriculture: R2m;
• Catering, accommodation and other trade: R5m;
• Community, social and personal services: R5m;
• Construction: R5m;
• Electricity, gas and water: R10m;
• Finance and business services; R10m;
• Manufacturing: R10m;
• Mining and quarrying: R7.5m;
• Retail and motor trade and repair services: R15m;
• Transport, storage and communications: R10m; and
• Wholesale trade, commercial agents and allied services: R25m.

What must be submitted?

The EE Plan requires a substantial investment of time and energy from the parties involved.   Employers seeking to submit an EE Plan for the first time must initially engage in a process of consultation with employees or their representatives.    The agenda for those consultative meetings should begin with an analysis of employment policies/practices and the working environment, with a view to indentifying employment barriers which adversely affect people from designated groups.     For the purpose of the Act, “designated groups” is defined as black people (Africans, Coloureds and Indians), women and people with disabilities who are South African citizens through birth or descent, or through naturalisation before 1993.

Having commenced consultation and agreed on a workplace profile, an employer must set about drafting an EE Plan.      The Act requires the EE Plan to include:

• objectives to be achieved for each year of the plan;
• affirmative action measures to be implemented by the employer (such as measures to eliminate employment barriers; measure to promote workplace diversity; efforts to “reasonably accommodate” employees from designated groups and measures to ensure equitable representation in all occupational categories);
• numerical goals to achieve equitable representation of suitably qualified people from designated groups in each occupational category;
• an annual timetable for the achievement of objectives; and
• processes for monitoring the implementation of the EE Plan.

In addition to the EE Plan, designated employers must submit:

• Employment Equity Report Form :

http://www.labour.gov.za/documents/forms/employment-equity/form-eea2-employment-equity-report

• Income Differential Statement Form:

http://www.labour.gov.za/documents/forms/employment-equity/form-eea4-income-differential-statement

We’re not ready – what do we do?

Employers who have neglected their employment equity obligations do not have sufficient time to implement an EE Plan before 1 October 2010.   Such companies are best advised to begin preparations for the 1 October 2011 deadline and hope that the Department of Labour does not impose penalties for non-compliance, which can be up to R500,000.00 and R100,00.00 for every additional offence.

Workplace Strategies is a consulting firm assisting organisations with people management and labour law compliance.

Talk to any manager or small business owner and invariably they will concede that the most difficult role they have within their organisation is to competently manage employee performance and disciplinary issues.

Not surprisingly, very few managers find it easy to address performance and discipline.    Most of us prefer to avoid confrontation and having difficult conversations.   Managing poor performers or badly behaved employees also requires a unique skill-set; a combination of conflict resolution techniques, an ability to empathise, high levels of emotional intelligence and an understanding of the impact of labour legislation.

We must also acknowledge the ramifications of getting the process wrong.   Frequently employers only appreciate the challenges of managing performance and discipline once they have been subject to a reinstatement or compensation order from the CCMA or a bargaining council.

The starting point for employers seeking to properly address performance and disciplinary issues is to gain appreciation of the statutory requirements, most notably the Labour Relations Act 1995.     However, that process will not by itself unlock the key to effective people management; having broadly understood legislative obligations, employers should then refer to the Code of Good Practice: Dismissal.

The Minister of Labour has published Codes on issues such as implementing redundancy programs, handling sexual harassment cases, disability in the workplace and managing pregnant employees.   Importantly, the Code of Good Practice: Dismissal provides employers with a “how-to-guide” for dealing with performance and disciplinary issues.

The Code reinforces the need for fairness and consistency in addressing performance and discipline and provides guidelines that enable employers to:

• address disciplinary issues short of dismissal;
• determine whether they have a fair reason for an employee’s dismissal;
• comply with procedural requirements when effecting dismissal; and
• manage probationary employees.

As the Code acknowledges, each case is unique and there may be times when employers should depart from its general principles.   However, for new managers and small business employers in particular, they can have confidence in their ability to competently address performance and disciplinary issues if they understand the Code and follow its guidelines.     It should be viewed as essential reading for any manager and a copy keep readily at hand.

Workplace Strategies is a consulting firm with expertise in labour law and human resources.    We also offer training programs aimed at up-skilling managers on mechanisms for effective performance and disciplinary management.

The Code of Good Practice: Dismissal can be downloaded from:

http://www.workplacestrategies.co.za/pdf/Code of Good Practice – Dismissal.pdf

Employers have historically made use of a variety of pre-employment screening tools, from job applicant reference checking with previous employers, to more sophisticated methods such as criminal record checks, financial history checks, drivers licence verification and identity verification.

More recently, screening tools have been expanded to include CCMA checks, a service whereby a search is performed to determine whether the job applicant is featured in any CCMA awards or Labour Court judgements.     Organisations offering this service maintain that the benefits of a CCMA check are that it verifies information submitted in a job application, particularly an individual’s reason for leaving their former employers.   It is also suggested that if applicants are asked during the recruitment process whether they have had previous disciplinary records or CCMA claims, the checks can be determinative of their level of honesty.

However, employers must appreciate that very few CCMA claims are finalised by a CCMA award or Labour Court judgment.        The CCMA’s Annual Report for the financial year 2008/2009 suggests that 62% of disputes were resolved at conciliation, which means no award was made in the resolution of the dispute.   Of the disputes that do proceed to arbitration, only 34% resulted in an award, a small percentage of claims actually filed with the CCMA.   The Labour Court has similar trends of resolving claims by agreed settlement, rather than by judgement of the Court.

It should also be appreciated that some industries have their own dispute resolution mechanisms which oust the jurisdiction of the CCMA.   In sectors such as construction, road freight, the chemical industry, the electrical industry and the public sector, dispute resolution powers are given to Bargaining Councils in place of the CCMA.     This may undermine the effectiveness of CCMA checks, given that a job applicant could have lodged numerous unfair dismissal claims that do not feature in a CCMA check because those claims were resolved outside the ambit of the CCMA.

CCMA and Labour Court screening could prove to be a useful tool for prospective employers seeking to verify job applicant details, but the limitations of CCMA checking must be acknowledged and employers should be cautioned about using such checks in isolation.

Employers are reminded that to reclaim part of the 1% of payroll paid to SARS each month pursuant to the Skills Development Levies Act 1999, they are required to file documentation with their relevant Sectoral Education Training Authorities (SETA) by 30 June 2010.

With some exceptions depending on the number of persons employed and the specific SETA, to process the reimbursement employers must submit a Workplace Skills Plan (WSP) and Annual Training Report (ATR).   The WSP identifies planned training initiatives for the financial year commencing 1 April 2010 to 31 March 2011, whilst the ATR is a record of the training that was implemented during the period 1 April 2009 to 31 March 2010.

Most SETA’s allow a mandatory grant to compliant employers of up to 50% of the skills development levies paid, while also issuing discretionary grants in some instances.

For more information on how employers can recoup some of their payroll costs, they should urgently contact their SETA or speak to Workplace Strategies for assistance.

Minister of Labour Membathisi Mdladlana recently instructed his Director General at the Department of Labour, Jimmy Manyi, to choose between his government job and his position as president of the Black Management Forum (BMF).

Manyi has been heading up the BMF for some years, an organisation that describes itself as “a non- racial, thought leadership organisation”, with the main purpose of “influencing socio-economic transformation of our country, in pursuit of socio-economic justice, fairness and equity”.      The BMF also claims to be “not apolitical, but is non-partisan” and is pro-transformation.

Minister Mdladlana appointed Manyi as the Department of Labour’s Director General in 2009, where upon Manyi suggested that his focus would be on strengthening employment equity laws, including the possibility of fines of 10% of turnover for non-compliant companies.   Manyi has since stated that the Constitution must be amended, because it “does not support transformation”.

In April this year, Minister Mdladlana instructed Manyi to apologise for attempting to inflate the Department of Labour’s budget to legitimise a request for an additional R1bn in government funds.

To date, there are no reports of Manyi complying with his employer’s instructions.

Much has been said about the Government’s proposal to outlaw the practice of labour broking in South Africa.   However, recent developments suggest that rather than outright prohibition, legislation will be enacted to regulate the labour broking industry.

The Governments change in stance has come about because of a number of factors, the most influential being a decision in the Supreme Court of Namibia in December 2009 that found that a total ban on labour broking was unconstitutional in that country.    Given the similarities between the constitutions of Namibia and South Africa, there is a recognition that efforts to ban labour broking in South Africa would also be held to be unconstitutional.

However, mixed messages about the Government’s position remain.   Official policy documents from the Minister of Labour suggest that the regulatory path will be adopted in favour of outright prohibition, a move which is backed by trade union federation COSATU.     Yet as recently as 13 April 2010 the Minister of Labour in his Budget Vote Speech vowed to “prohibit the abusive practices” of labour broking.

Labour brokers themselves are also changing tact.   Major player Adcorp, which boasts an annual turnover of R5 billion, has suggested that regulatory changes could prove advantageous for them and pointed to the European experience, which saw the introduction of regulation result in greater market shares for the larger, sophisticated players in the labour broking industry.

Sectoral Education Training Authorities (“SETAs”) were establishing a decade ago as a mechanism to implement the Government’s National Skills Development Strategy.

In recent years, SETA’s have been beset by claims of poor management and misuse of funds and criticised for having minimal impact on addressing South Africa’s skills shortage. Partially in response to that criticism, responsibility for SETAs was transferred from the Department of Labour (“DOL”) to the Department of Higher Education and Training (“DHET”) in November 2009 and the Minister heading up DHET has now proposed changes and amalgamations to a number of SETAs.

The proposed changes are subject to public hearings to held by the National Skills Authority, but if the proposals go ahead, it will see the formation of six new SETAs and the total number of SETAs will reduce from 23 to 21.
The effect for employers will be that that the regulation of learnerships and the submission of Workplace Skills Plans, for example, will change for companies in any of the following sectors:

• advertising and media
• furniture and timber products
• printing, packaging and publishing
• electrical contractors
• non-government organisations
• motor and petrol retailers
• broadcasters

Workplace Strategies will monitor these proposed reforms and advise once the changes take effect.