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Thread: Labour Law 101: Your internal labour law/HR function

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    Diamond Member Vanash Naick's Avatar
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    Labour Law 101: Your internal labour law/HR function

    Hi Guys,
    The single most important objective I have here is to simplify the Labour relations Act 66 of 1995(as amended).The idea of this topic is to develop your internal disciplinary process so that you can manage this process. Many of you will already have these processes in places, corporate companies definitely have these processes in place but many small businesses and start up businesses don’t have this place and will therefore find this post and its attachments beneficial.

    The Labour relations Act 66 of 1995 is a lengthy document but for the purposes of discipline, dismissal and unfair dismissal, a very small portion of this lengthy Act is applicable to you: Section 186 up to and including section 193 of the Act and Schedule 8 of the Act( section 1 up to and including section 11). If printed these mentioned sections do not prove to be a lengthy document and is it also does not contain exhaustive content. When put in perspective, the rationales cannot be clearly seen. Should you down load the pdf version, you’ll find that when you print the sections I mention it amounts to no more than 30 pages. I challenge you to familiarize yourself with these pages. It will prove to be invaluable and will save you money in terms of getting legal advice where you yourself are now in a position where you empowered. The further idea here is to save you legal costs for legal advice. All this will take is a little empowering of you! I’m by no means disparaging the legal profession which dates back centuries, I merely saying that you don’t always have to pay huge consultation fees for advice. Empower yourself!
    1. Download the act. Since the Act has been amended a few times, might I suggest that you google “labour relations act 66 of 1995 with all amendments;
    2. In practice when one purchase a law library for your office , all these acts are included in what seems to be a small files with many papers that are include by means of punch holes. The reason for this is that when there is an amendment, you simply open the file and remove the page or pages that are repealed or amended and then insert the amended pages into the file. By downloading a version with all amendments in pdf form, you don’t have to contend with this;

    3. The Act recognises 3 grounds that you may discipline/dismissal an employee for:
    3.1 Misconduct
    3.2 Incapacity
    3.3 Operational requirements


    This will be dealt with at a later stage, the reason it’s mentioned now is for clearer perspective.



    The goal with this post to meet Section(1); (4) of Schedule 8 of the Labour Relations Act 66 of 1995 in terms of compliance. You’ll require an audit trail of documents and forms to do this
    Section 1 of Schedule 8 of the Act provides:
    “Disciplinary procedures prior to dismissal
    (1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business.
    In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.

    4. Fair procedure
    (1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
    5. Disciplinary records: Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.”


    4. The best way to do this is to have the following documents in place: Code of conduct; counselling letter, warning form, Notification of disciplinary hearing; suspension letter, Disciplinary hearing record, Disciplinary hearing checklist for chairperson, confirmation of training register, Disciplinary code(not necessary in small businesses(corporate companies usually have this in place){all these documents have been attached in Word 2003, you may amend them, add your business name, logo to them and then simply convert to pdf for proper printing of the forms as they are}.
    5. Section 1 of schedule 8 protects small businesses from an exhaustive disciplinary code, this section reads, “All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business.”
    6. All discipline in the workplace and especially dismissals must be conducted in accordance with a justified reason and a fair procedure. The Act refers to this as substantive and procedural fairness. It should be apparent by now why all the aforementioned processes should be in place. You don’t want a situation where the CCMA or the Labour Court rules that the dismissal you gave as a sanction or penalty or punishment was substantively fair but not procedurally fair. Get your procedures in place!!


    7. Section 2(1) of schedule 8 provides, “ Fair reasons for dismissal ,A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below.”
    Attached Files Attached Files
    Last edited by Vanash Naick; 23-Jan-12 at 05:10 PM.
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  2. Thank given for this post:

    cagenuts (23-Mar-12), Dave A (24-Jan-12), Petrichor (25-Jan-12)

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    Site Caretaker Dave A's Avatar
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    A great start Vanash

    Did you get my message on how to deal with the attachment limit issue?
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member Vanash Naick's Avatar
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    Hi Dave,

    I did indeed and have resolved to attach those additional documents in another post, that i'll call "your internal labour law/hr function 2(additional attacments). The brainchild here is that over time I want to build a complete picture.

    Many thans for your very kind comments!
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Diamond Member Vanash Naick's Avatar
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    Your internal labour law/hr function 2(additional attacments)

    Hi Guys,

    1. Attached are 2 additional documents that will lend more meaning to the first post of the same name!
    2. Things are hectic on my side for these next 2 weeks, so in the evnt of their been questions that I don't immediately respond to, it's that rat race that's keeping me away!
    Attached Files Attached Files
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Silver Member Petrichor's Avatar
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    Vanash - this is great, Thanks You - you do not realise how much time and value you are adding to my life

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    Diamond Member Vanash Naick's Avatar
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    You to kind!! I too have obtained a vast wealth of knowledge and information from the forum sa!
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
    vanash.naick@gmail.com
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    So I have an employee that is having a baby. Both her and her husband work for me. They spend alot of time on the phone to clients.

    She has indicated she does NOT want to go onto UIF as she cannot survive with such a low payout. She has roughly her full leave that she can take (1 month).

    I told her she is not going to work additional hours to make up another month so she can have another month of paid leave due to certain reasons.

    What other options does she have?

    What if she wants to come back to work sooner than 1 month? can I allow it?
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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by nkawit View Post
    She has indicated she does NOT want to go onto UIF as she cannot survive with such a low payout. She has roughly her full leave that she can take (1 month).
    You could always top up the shortfall - although you might want to bear in mind you might be seen as setting a precedent for the company to follow in future.

    Quote Originally Posted by nkawit View Post
    What if she wants to come back to work sooner than 1 month? can I allow it?
    That would be her prerogative, I guess. By my understanding, the only obligation you have is to keep the post open for when she returns (up to 3 or 6 months?)
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member Vanash Naick's Avatar
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    Hi Nkawit,

    Terribly sorry for the late reply, but things have just been so hectic for me!!

    1. dismissal for intended pregnancy or actual preganancy is classified by the labour relations act as an "automatically unfair dismissal!"
    2. All the automatic unfair dismissals(which I will come to at a later stage, I'm building a picture with these posts) are a very slippery slope!
    3. You can also tell her that as her employer you duty bound to register her for uif;
    4. The law currently swings in the favour of women coming back from maternity leave
    What you can however do, is come to an amicable arrangement with her, even if it means paying her 2 extra months salary for a quick solution, which is what I think you want, I think you want closure and finality. have a meeting with her and husband as they both do work for you, and tell them you making an offer. Should she accept the offer, put it in writting , get her to sign and a witness, that you giving her a full and final settlement which came about with concensus(mutual agreement), both parties agree and want that.

    I hope that this helps!!
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
    vanash.naick@gmail.com
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    Gold Member IMHO's Avatar
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    Vanash, I think you are missing the point. She does not want to claim UIF while on maternity leave. She would rather take paid leave. From my point of view, this would not be in the interest of either party. I would say claim UIF and cover the shortfall with paid leave. Same procedure, meeting, discuss, come to agreement, sign.
    ~Expenses will eat you alive! - My first Boss~

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