Labour Law 101: Your internal labour law/HR function

[Citizen X]

Exceptions to the general rule

(a) if an employer has offered to renew on less favourable terms, or has failed to renew a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract;
(b) if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work;
(c) if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.


4.3.2 Who bears the onus in dismissal disputes?

1. The employee must prove that a dismissal took place
2. The employer must prove that the dismissal is fair

4.3.3 Referral periods dismissal and unfair labour practice

Dismissal		Unfair Labour Practice
30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal	Later date applies to appeals	90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.
Section 191(1)(b)(i)		Section 191(1)(b)(i)

[Citizen X]

Schedule 8: Code of Good Practice
How to refer to items in a schedule

Unlike legislation where we use, sections, subsections, paragraphs and subparagraphs, we don’t follow this structure when referring to an item in a schedule. To illustrate

The following is incorrect!

Section(7)(1)(b)(i) provides that: X
Any person who is determining whether a dismissal for misconduct is unfair should consider –
if a rule or standard was contravened, whether or not –
the rule was a valid or reasonable rule or standard;

We start by referring to the Schedule itself i.e. Schedule 8 ü

Schedule 8 Item 7(1)(a)(i) of the Labour Relations Act 66 of 1995 provides that:ü


Any person who is determining whether a dismissal for misconduct is unfair should consider –
if a rule or standard was contravened, whether or not –
the rule was a valid or reasonable rule or standard; ü

Schedules are found at the end of legislation. The reason for this is to prevent the principal legislation from becoming more bulky than is necessary.

[Citizen X]

Case study

1. Mr Bongani Masongo was employed in the capacity of supervisor at MotorFit Petrol Station (PTY) LTD in Ermelo for a period of 8 years. MotorFit Petrol Station (PTY) LTD has four branches in Ermelo. Each branch includes 8 filling bays and a 24 hour convenience store. Upon employment he was explained all the company rules and regulations, given a copy of the disciplinary code and procedure and signed a copy of the disciplinary code and procedure which was placed in his personnel file On the Afternoon of 24th December 2013 at approximately 13h30pm the Site – MotorFit Petrol Station and the company Trimbo (pty) Ltd were defrauded by the nominated owner of a fleet-card . This was the result of the direct misconduct of Mr Bongani Masongo, who abused his position of supervisor and the authority that such a position gave him. He abused his power by giving an instruction to Mr Andrew Smith, a petrol attendant, which is contrary to the rules, regulations, policy and procedure of the company.

Evidence by the way of CCTV footage shows the following

1. A Black BMW Drives on to the forecourt
2. Mr Bongani Masongo gets into the BMW and thereafter comes out and directs the BMW to the Fill Bay
3. A few minutes Later a White VW Golf (owner of the Card) drives on to the forecourt and drives straight to the bay where the BMW was parked .The golf parks behind the BMW .
4. Mr Smith is instructed by Mr Masongo to Fuel the 2 vehicles and create the impression that only one transaction took place, that is create the impression that only one vehicle namely the White VW Golf was filled with petrol whereas two vehicles were filled in one transaction.
5. The amount of R761.36 is settled by a fleetcard that belongs to the Company Trimbo (pty) Ltd for a Vehicle VW Citi Chico 1.4 registration no: DSG782FS


He has been placed in a Position of Supervisor and he instructed Mr Smith to commit the conduct that has brought about a disciplinary hearing.
According to Mr Marais , a witness gave a statement detailing the way the transaction occurred.
He also mentioned that the driver of the BMW Approached him previously with the similar transaction but he declined to commit this for the fear of his job. He also mentioned the owner of the BMW looked for Mr Masongo before the proposal and was upset when he heard Mr Masongo has left work already on that day. This is a clear indication of untoward behavior alternatively untoward intentions. The owner of the BMW could have approached any staff member on duty for the purpose of filling fuel into his vehicle.

The initiator/manager/complainant Mr Khan charged mr Masongo with two charges namely:

1.(Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship;
2. (Misconduct)Gross Dishonesty: In that on the 24 December 2013 you engaged in a transaction contrary to the company rules and failed to act in good faith by bringing this customer’s dishonest intentions to management’s attention by collaborating with a customertransaction by fuelling two motor vehicles with one fleet card.

[Citizen X]

Motor Fit Petrol Station has the following disciplinary code and procedure

DISCIPLINARY CODE AND PROCEDURE
OFFENCE	FIRST OFFENCE	SECOND OFFENCE	THIRD OFFENCE	FOURTH OFFENCE
1 Intentional violation of safety rules	Written warning	Written warning	Written warning	Notification of disciplinary hearing
2 Alcohol/drugs- use of or possession on company premises	Written warning	Written warning	Written warning	Notification of disciplinary hearing
3 Theft, fraud, unauthorised possession of company property, unauthorised manipulation of company processes and systems, gross dishonesty	Notification of disciplinary hearing
4 Sabotage/deliberate misuse of company	Notification of disciplinary hearing
5 Assault threatened, attempted or actual	Notification of disciplinary hearing
6 Intimidation	Notification of disciplinary hearing
7 refusal to obey reasonable and lawful instruction	Written warning	Written warning	Written warning	Notification of disciplinary hearing
8 Unauthorised possession of dangerous weapons	Written warning	Written warning	Written warning	Notification of disciplinary hearing
9 Desertion(after company has exhausted all procedures for contacting the employee	Notification of disciplinary hearing
10 refusal to work or carry out duties	Written warning	Written warning	Written warning	Notification of disciplinary hearing
11 dereliction of duty	Notification of disciplinary hearing
12 Absenteeism without authorisation	Written warning	Written warning	Written warning	Notification of disciplinary hearing
13 Late coming, early departure, extended lunch/tea breaks	Written warning	Written warning	Written warning	Notification of disciplinary hearing
14 Leaving the workplace without permission	Written warning	Written warning	Written warning	Notification of disciplinary hearing
15 Leaving workstation unattended without permission	Written warning	Written warning	Written warning	Notification of disciplinary hearing
16 Sleeping on duty	Written warning	Written warning	Written warning	Notification of disciplinary hearing
17 Horseplay	Written warning	Written warning	Written warning	Notification of disciplinary hearing
18 Sexual harassment	Notification of disciplinary hearing
19 Poor work performance	Written warning	Written warning	Written warning	Notification of disciplinary hearing
20 Insubordination	Written warning	Written warning	Written warning	Notification of disciplinary hearing
21 Disrupting other employees work/duties	Written warning	Written warning	Written warning	Notification of disciplinary hearing
22 Negligence	Written warning	Written warning	Written warning	Notification of disciplinary hearing
23 Disrespect towards clients/customers	Written warning	Written warning	Written warning	Notification of disciplinary hearing
Employee Signature Date: 18 June 2005

[Citizen X]

Disciplinary Procedure MotorFit Petrol Station (PTY) LIMITED 1. INTRODUCTION 1.1 The purpose of the disciplinary procedure is to create acceptable standards and norms for a harmonious work environment which gives cognisance to the rights of all employees and the employer and which fosters an environment of productivity and operational efficiency. 1.2 The objective of the disciplinary procedure is to: 1.2.1 create a fair and equitable structure for dealing with disciplinary transgressions relating to a breach of the company's rules or regulations or otherwise in law; 1.2.2 encourage timely education and corrective action in the event that an employee's behaviour or performance proves to be unsatisfactory or unacceptable. Punitive action should only be taken when educative or corrective steps have proved ineffectual, or where the transgression is so material that it becomes intolerable to continue with the employment relationship. 2. DEFINITIONS For the purpose of these regulations, the following definitions apply : 2.1 "EMPLOYER" or "COMPANY" shall mean MotorFit Petrol Station (PTY) 2.2 "EMPLOYEE" shall mean any person in the employment of the Company, who is works for the company and is defined as an employee by the Labour Relations Act no. 66 of 1995. 2.3 "MANAGEMENT" refers to manager or supervisor unless expressly stated otherwise. 2.4 "DISCIPLINARY DISCUSSION" shall mean an informal disciplinary hearing conducted by the employee's supervisor or manager and is in no way meant to either imply or mean a formal constituted disciplinary hearing. 2.5 "DISCIPLINARY HEARING" shall mean a formally constituted meeting where serious or dismissable conduct is investigated and is conducted by a Director of the company. 2.6 "EMPLOYEE RESPRESENTATIVE" shall be a co-worker or colleague from within the company who is chosen by the employee to represent him at his disciplinary interview. In such cases, the it is the sole responsibility of the employee to arrange the same. 2.7 "LABOUR RELATIONS ACT" shall be the Labour Relations Act no. 66 of 1995 (as amended). 2.8 Unless inconsistent with the context, all words implying the masculine gender shall include the feminine.

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[Citizen X]

3. RESPONSIBILITY FOR DISCIPLINARY ACTION 3.1 The responsibility for taking disciplinary action rests with the supervisory staff and members of management. 3.2 When initiating disciplinary action, supervisors and managers will adhere to the disciplinary code and procedures and will endeavour to act consistently and fairly at all times. 3.3 Verbal warnings, written warnings and final written warnings may be issued by the employee's immediate-supervisor. Hearings pending possible dismissal are the responsibility of a Director of the company or any management nominee. 4. DISCIPLINARY ACTION 4.1 Counselling As discipline is aimed at education, correction, prevention and rehabilitation rather than punishment, all disciplinary action taken, other than dismissal, shall be followed by counselling from the relevant manager or supervisor. Note should be taken of employees who improve their conduct. 4.2 Verbal Warnings 4.2.1 These are issued by the supervisor concerned for minor transgressions and of which no formal record shall be kept on the persona file. 4.2.2 A verbal warning issued in terms of this procedure shall remain in effect for a period of three (3) months from date of issue. 4.3 Written Warning 4.3.1 A written warning will be given either when a verbal warning has failed to correct the unacceptable performance or conduct or where the transgression is more serious and as such a verbal warning would not be adequate. 4.3.2 When issuing a written warning, the manager or supervisor concerned shall: 4.3.2.1 Inform the employee and his representative that formal disciplinary action is going to be taken against him in the form of a written warning. 4.3.2.2 Explain to the employee the contents of the warning, the reason therefore, and the effect of the warning on the employee's work record.

[Citizen X]

4.3.2.3 Request the employee to sign the written warning form, Appendix C1, indicating that he has received the warning. An employee is not compelled to sign the warning form. Should an employee refuse to sign a written warning, management shall record this fact on the warning as well as the name of the employee's representative. Refusal to sign the written warning shall not affect the validity of the warning. 4.3.2.4 All written warnings issued in terms of this procedure shall remain in effect for a period of six (6) months from date of issue or such extended period, to a maximum of twelve (12) months, which may be necessary and justified in a particular circumstance. 4.4 Final written warning 4.4.1 A final written warning shall be issued by management in the same manner as a written warning as set out in 4.3 above. A final written warning will be issued in cases where a written warning has not achieved the desired result or where the transgression is so serious that a written warning would be inadequate. 4.4.2 A final written warning shall remain in effect for a period of six (6) months from date of issue or such extended period, to a maximum of twelve (12) months, which may be necessary and justified in a particular circumstance. 4.5 Suspension without pay Suspension shall be off the company's premises without pay and shall be considered as an alternative to dismissal. In all such cases, the employee's agreement to the acceptance of the suspension without pay as an alternative to dismissal shall be obtained in writing. 4.6 Demotion Demotion shall be to a lower graded job and will only be considered as an alternative to dismissal. Demotion may or may not include a change in remuneration and benefits and in all cases the acceptance in writing of the action shall be obtained from the employee concerned. 4.7 Suspension with pay In the cases where very serious misconduct is alleged and/or if the circumstances are such that the employment relationship or relationship between employees may be harmed by the presence of the employee on the premises, the company may suspend the employee from the company's premises on full pay pending the outcome of the disciplinary hearing; or alternatively, the employee may be suspended from normal duties but remain on the company's premises. Such suspension with pay is not a disciplinary action and shall not prejudice the employee in any way. The employee must be advised, preferably in writing, of the reason/s for his/her suspension. 4.8 Disciplinary record keeping The company shall maintain a disciplinary record for each employee in their personal files in which any disciplinary steps taken in terms of this procedure shall be recorded.

[Citizen X]

5. THE DISCIPLINARY PROCESS 5.1 Verbal warnings, written warnings and final written warnings 5.1.1 Verbal warnings, written warnings and final written warnings shall be issued by the employee's immediate superior by way of a disciplinary discussion. 5.1.2 Once the alleged transgression has been brought to the attention of the supervisor or manager he shall hold an informal disciplinary discussion into the matter as soon as is feasible after the incident. No prior written notice of the disciplinary discussion shall be necessary. 5.1.3 The disciplinary discussion shall be attended by: 5.1.3.1 the supervisor/manager; 5.1.3.2 the employee concerned; 5.1.3.3 the employee's representative, if requested by the employee. 5.1.4 The supervisor/manager shall inform the employee concerned, during the discussion, ofthe reason for the discussion and of the alleged transgression/s. 5.1.5 The employee and/or his representative shall be given an opportunity to answer to the alleged transgression and once the supervisor/manager has established the facts relating to the incident he may, depending on the nature of the incident and taking cognisance of the company's disciplinary code, issue the employee with one of the following findings: 5.1.5.1 taken no action; 5.1.5.2 recorded counselling; 5.1.5.3 verbal warning (valid for 3 months); 5.1.5.4 written warning (valid for 6 months or extended period up to maximum of 12 months); 5.1.5.5 final written warning (valid for 6 months or extended period up to maximum of 12 months); 5.1.5.6 notice of a formal hearing. 5.2 Disciplinary hearing 5.2.1 No employee may be dismissed without being granted a formal hearing, save for in circumstances such as: 5.2.1.1 an employee absconds and/or is unwilling to return to work; or 5.2.1.2 an employee refuses to attend a disciplinary hearing after being notified thereof; or 5.2.1.3 in exceptional circumstances where the company cannot reasonably be expected to hold a formal hearing.

[Citizen X]

5.2.2 The manager may decide, depending on the seriousness of the alleged transgression, to suspend the employee on full pay until the finalisation of the disciplinary hearing. Such suspension shall be in terms of clause 4.7 above. 5.2.3 The employee concerned shall be advised in writing in the format as per Appendix C2 hereto of the following: 5.2.3.1 The alleged transgression/s against the employee; 5.2.3.2 The time and place of the hearing (not less than 48 hours prior notice shall be given); 5.2.3.3 The right to be represented by an employee representative if requested by an employee; 5.2.3.4 The right to ask questions, call witnesses and present evidence; 5.2.3.5 The right to an interpreter; 5.2.3.6 The right to cross-question company witnesses. 5.2.3.7 the right to be present at the disciplinary hearing. (In the event that an employee waives this right, the hearing may then proceed in his absence). 5.2.4 The disciplinary hearing shall be attended by: 5.2.4.1 the employee concerned; 5.2.4.2 the employee's representative, if requested by the employee; 5.2.4.3 the Director of the company or management nominee, who will act as chairperson; 5.2.4.4 another manager or nominee who shall act on behalf of the company. 5.2.5 At the hearing both parties shall be given an opportunity to present their evidence to the chairperson. 5.2.6 When all the facts and surrounding circumstances have been heard, the chairperson shall make a decision on a balance of probabilities as to whether or not the employee is guilty of the alleged transgression/s. The chairperson shall adjourn the hearing to consider his decision on guilt (where practicable). 5.2.7 If the chairperson finds the employee concerned guilty of the alleged transgression/s, he shall then give both parties an opportunity to lead evidence in mitigation and aggravation. Where after the chairperson will determine a sanction taking cognisance of the disciplinary code as a guideline. 5.2.8 The chairperson may make one of the following decisions: 5.2.8.1 no action; 5.2.8.2 final written warning;

[Citizen X]

5.2.8.3 dismissal with notices; 5.2.8.4 summary dismissal (dismissal with immediate effect i.e. without notice); 5.2.8.5 suspension without pay (subject to 4.5 herein); 5.2.8.6 demotion (subject to 4.6 herein); 5.2.8.7 or any other sanction which may achieve a correction of the unacceptable conduct. 5.2.91n the event that a decision to dismiss, demote or suspend (without pay) an employee is taken, the employee will be advised in writing as to the reasons for the decision of guilt and the sanction applied and the reasons therefore. 5.2.10 In the event that the decision in respect hereof is a final written warning, the employee will still be advised in writing as to the reasons for the decision of guilt and the appropriate warning form (Appendix C1) will be completed. 5.3 Procedures applicable to poor performance transgressions which amounts to misconduct 5.3.1 An employee's employment may not be terminated for reason of unsatisfactory performance unless the company has given the employee: 5.3.1.1 appropriate instructions and guidelines on the performance of the job; 5.3.1.2 warnings and performance counselling; 5.3.1.3 training and coaching, where appropriate; and 5.3.1.4 an action plan for improvement and a reasonable time period within which to show improvement. 5.3.2 A disciplinary hearing must be held prior to the dismissal of an employee for poor performance, save in the circumstances of a probationary employee or in the case of poor performance due to incapacity, which shall be dealt with in terms of the incapacity procedure (Annexure D). 5.4 Procedures applicable to industrial action which amounts to misconduct 5.4.1 Participation in a strike or any industrial action which does not conform with the requirements of the Labour Relations Act constitutes an act of misconduct. 5.4.2 The appropriate sanction in such circumstances must be determined with reference to the facts of the case, including: 5.4.2.1 The seriousness of the breach of the provisions of the Act; 5.4.2.2 The attempts made to act in conformity with the Act; Whether or not the strike or industrial action was justified in relation to the conduct of the company. 5.4.3 The procedures applicable in such instance are as follows: 5.4.3.1 The company must discuss the breach or bona fide attempts must be made to discuss the breach with a spokesperson for the employees at the earliest opportunity; 5.4.3.2 Prior to considering dismissal, the company shall issue an ultimatum in clear and unambiguous terms which sets out the requirements of the employee/s, a time period and the sanction which will be imposed in the event of a failure to comply with the ultimatum; 5.4.3.3 Sufficient time should be permitted after the issuing of the ultimatum to enable the employees to reflect on the ultimatum and to respond to it. 5.4.4 The procedures in 5.4.3 above may be dispensed with in exceptional circumstances where the company cannot reasonably be expected to apply them. 5.5 Appeals Only dismissals, suspensions without pay, final written warnings and demotions shall be subject to appeals. 5.5.1 Appeals and disputes 5.5.1.1 An employee who feels that the company had acted in either an procedural or substantively unfair manner may lodge an appeal within five (5) working days from date of finding with the company; 5.5.1.2 Such appeal shall be in writing to the chairperson of the disciplinary hearing setting out, in detail, the reasons and grounds for the appeal; 5.5.1.3 An external consultant or nominee shall thereafter study the minutes, evidence and outcome of the disciplinary hearing and convene an appeal hearing with the employee concerned, his representative and the chairperson of the disciplinary hearing in order to hear the motivation for the grounds of appeal, as well as new evidence and the response of the previous chairperson/initiator thereto; 5.5.1.4 The external consultant or nominee may, after the appeal hearing, elect to uphold the previous decision, amend the previous decision, impose a different sanction (which may include a more severe outcome) or remove the previous sanction in totality if he finds the employee not guilty of the transgression which gave rise to the disciplinary hearing. Such decision shall be final and not subject to further review. 5.5.2 Disputes Should the employee still dispute the decision to dismiss him, the employee may: 5.5.2.1 submit the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant body as provided for in terms of the Labour Relations Act for adjudication; or