Category — Labour Law

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 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.