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Thread: Labour law 101: Your internal HR/labour law function: part 2: the training folder

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    Diamond Member Vanash Naick's Avatar
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    Labour law 101: Your internal HR/labour law function: part 2: the training folder

    The Training Folder
    “Let's start at the very beginning, A very good place to start.”( Sound of music).

    Primary objective of all labour law posts I will make:
    You must be able to go to the CMMA or Labour court with a bundle of documents and prove that the dismissal of your staff member was both substantively and procedurally fair.
    Learning outcome: Your internal HR/labour law function:To get all your internal processes in place

    1. Proof of training is important especially where the dismissal is for poor work performance or where an employee is dismissed after a probationary period;
    2. It doesn’t help your case if you do dismiss an employee for poor work performance or dismiss an employee for not performing well after probation if all you have is your own word that proper training and induction was conducted. Yes, in terms of the law of evidence, oral evident is extremely important, but when you have documentary evidence to support your cause, you can state your case much better;
    3. Section 8(2) of Schedule 8 of the Labour Relations Act provides inter alia,
    “ (2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
    (a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and
    (b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
    (3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.”
    In practice, your signed code of conduct attendance register, your training folder(attached here) will prove to be beneficial!
    4. Section 9 of Schedule 8 of the Labour Relations Act provides:
    “Any person determining whether a dismissal for poor work performance is unfair should consider –
    (a) whether or not the employee failed to meet a performance standard; and
    (b) if the employee did not meet a required performance standard whether or not-
    (i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
    (ii) the employee was given a fair opportunity to meet the required performance standard; and
    (iii) dismissal was an appropriate sanction for not meeting the required performance standard

    5. I am just going to focus section 9(b)(1) “the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
    6. A common excuse for an employee not performing well in terms of work performance is , “ I didn’t know”, so my question to you is this, how do you now prove that the employee did indeed know?
    7. Can you now see where the training folder comes in?

    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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  2. Thank given for this post:

    cagenuts (23-Mar-12), Dave A (26-Jan-12)

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    If an employer has a ZERO TOLERANCE POLICY for certain types of offenses, can one argue that the employer do not apply that rule consistently if two employees commit two different offenses under the employees ZERO TOLERANCE POLICY but one is dismissed & the other got away with a final written warning. The CCMA commisioner finds that the rule of consistency only applies if the offenses are SIMMILAR in nature. I know that the employer has to take into account the circumstances of the two employees before coming to a conclusion, but my friends offense is 1. less serious offense then his co worker (My friend removed items from his office without the necessary permission & was dismissed because of this whilst his colleague falsify records for financial gain) 2. Both pleaded guilty & showed remorse. 3. My friends personal circumstances (married, sole breadwinner, extended dependants etc) are much heavier then his co worker who is single. 3. Have a longer service history & it is his first offense.
    I could be wrong on this but I tend to dissagree with the CCMA commisioner in his interpretation. My take on the rule of consistency is that the employer is inconsistent if they do NOT apply their zero tolerance to all the offenses that falls under this policy. This is irrespective if the offenses commited by the employees are different nature.
    Am I wrong & if so can some one please give me a different angle to this.

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    Diamond Member Vanash Naick's Avatar
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    1. You have sound legal reasoning skills! You have already mentioned that mitigating circumstances must be taken into consideration before a sanction is imposed. In doing so, different employees will have different lengths of service, different family financial circumstances. The aggravating circumstances almost always differs in that one employee may present with previous disciplinary action for an offence whilst the other employee may not present with such a disciplinary record.
    2. Your friends charge: The charge was either unauthorised possession of company goods or theft. Some legal minds argue that it’s not wise to include theft as a charge as it may be later argued that a company does not have law enforcement capability i.e. to charge with theft and that only the police may do so. Be that as it may, many companies have gotten away with initiating a charge of theft if not for any other reason than simply because it was not taken up further; In my opinion you can use theft as a charge;
    3. The other employee committed fraud
    4. Both offences are regarded as serious, both offences breach the employee/employer trust relationship;both offences fall into the misconduct category of section2(2). Both offences cause irreparable harm to the trust relationship.
    5. You don’t make mention of the size of the company. Bigger companies have disciplinary codes and procedures. The disciplinary code will immediately be able to answer your question as it will indicate what the offences are and what the sanctions for such transgressions are. The company is bound by it’s own rules and if indeed there is a disciplinary code, it can be used against the company at a later stage to demonstrate that the company did not follow its own rules.
    6. Where a company does not have a disciplinary code or if it’s a small business a grey area exists if you will;
    7. Interpretation of legislation is reserved for the judiciary. Whilst we may all interpret section 3(6) and come to the same interpretation, the way to go is to look to the Labour Appeals Court or the Supreme Court of appeals for guidance in interpreting legislation from their caselaw and the application of a statute to a certain set of facts
    8. Section 3(6) of schedule 8 of the LRA deals with consistency:”The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
    9. I’m of the opinion that consistency of punishment or penalty or sanction is an important tenet of fair labour practice. The whole idea of the LRA is to improve the manner in which the process of discipline is managed as well as the manner in which sanctions are imposed
    10. Consistency is actually a requirement that employers must comply with. The idea is that it would be unfair to treat employees who have committed the same offence differently. Consistency does not necessarily mean that the same punishment must be applied in all cases of the very same offence. In my opinion the same procedure must be applied for the same offences. E.g the charge of ‘leaving your workstation unattended.’ Employee 1 is a genitor at xyz bank, to maintain a good public impression the bank expects him to be cleaning the toilets at certain times and further that he cannot leave his workstation unattended during this time. Employee A leaves his workstation unattended and certain clients complain that the toilets were not clean. Employee A is charged for leaving his workstation unattended. Employee B is the bank security guard, he too is required not to leave his workstation unattended. Employee leaves his work station unattended and the bank is robbed and a client is shot and killed. Both employee A and B have the same offence, but it is Employee B that will be dismissed and not employee A. Employee A will get a written warning; Notwitstanding this, I’m of the opinion that both employees should have been dismissed as both theft and fraud are seem as serious offences in which dismissal as a sanction is justified
    11. In Miyambo v CCMA an employee was dismissed for stealing a piece of scrap metal. The court held that even though the value of the scrap metal was small it breached the trust relationship. In stark contrast, in SA Commercial union v Pinzon Traders, an employee was dismissed for petty theft but the court ruled that he be reinstated. He worked in a bakery and ate a piece of bread that one customer returned. The court held that the sanction of dismissal was too harsh for the offence.
    This is in my opinion! My learned colleague Anthony has specialist knowledge in labour law, I’m confident that he will shed additional light on this matter...
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Thanks for the reply Vanash.
    You explanation do sound very logic & sound. I do hope the appeals court will rule in his favour.
    To shed more light to this case. He worked for one of the big banks. My friend was charged with theft but on appeal it was changed to unauthorised removal of company property as he successfully argued & presented evidence that his intention was not theft but unfortunately it carry the same sanction under their Zero Tolerance Policy. Northwithstanding this, I agree with you that both offenses committed by my friend & his co worker are very serious offenses & the sanction should've been the same.
    It would be interesting to to hear Anthony's take on this too.

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    Diamond Member Vanash Naick's Avatar
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    Yes, Anthony has sound legal reasoning skills in labour law. It also always helps to get another opinion. The world through my eyes: I believe in second chances. I always see the human beings behind these matters. There's a household to run, kids to take care of, our cost of living is not improving, it's getting worse by the day. I too wish your friend everything of the best. Intention(dolus) is an imporatant consideration. Your friend too has some legal skills. Arguing intention adequately takes legal skills. It will also help if he did not remove the items completely from the premises. However things work out, he is still entitled to a certificate of service that excludes the reason for termination of employment. I firmly believe, based on scripture, that when 1 door closes, 10 more open.
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Site Caretaker Dave A's Avatar
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    Given that this involves the banking sector, this part has aroused my curiosity more than it did at first reading:

    Quote Originally Posted by Waterkloof1 View Post
    (My friend removed items from his office without the necessary permission & was dismissed because of this whilst his colleague falsify records for financial gain)
    I suppose it depends on what records were falsified, but I'm surprised that it merited a final written warning. Dishonesty and banking make poor bedfellows.
    Last edited by Dave A; 20-May-12 at 06:09 PM.
    The trouble with opportunity is it normally comes dressed up as work.

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    Gold Member IMHO's Avatar
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    It would help a lot if one could get more info on this 'falsify records for financial gain'. This accusation makes me think of attendance records. The fact that it is in a bank makes it sound worse than it probably is, as one immediately think about cash. This person might have, like most employees, neglected to complete his attendance record and completed it at month end in one go. That makes it very easy to unintentionally make a mistake from which he can financially gain. It could also be petty, in that if you were 15 min late and forget to record it, it would be the same accusation. However, I can not see the employer do anything else, but issue a written warning, if the employee does not have a final written warning on record for the same offense.

    I dismissed a person once for attendance record fraud and won the case. However, this person stayed away from work and recorded it as such. One day absent only. He then just before month end, changed the register to indicate that he did work that day.

    So it is very difficult to take sides without hearing both, no, all three, stories.
    ~Expenses will eat you alive! - My first Boss~

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    Diamond Member Vanash Naick's Avatar
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    Quote Originally Posted by Dave A View Post
    Dishonesty and banking make poor bedfellows.
    Indeed it does Dave! On this note of consistency. Mdluli, who is implicated in murder and fraud is still as at today's date drawing a huge salary! I guess, we'll just throw consistency out of the window in Mdluli's case. It's no wonder the criminals are so brazen, they see what's happening in the top brass and go about the criminal activities undeterred by the police. Your top brass at SAPS should have no taints(turpis persona).
    In matters such as waterkloof's friend, my stance is somewhat different. I accept that no employer should contend with dishonesty i.e theft, fraud etc and further that an employee is duty bound not only by statute but even by common law to serve his employer honestly. This principle was already entrenched 2500 years ago! That said, I always see the human beings behind such matters. His dismissal will not only affect him but only his wife and kids. He's now in a predicament where he will have to worry about bond repayments, car installments, the various costs that a household and kids bring. Whilst what he done was wrong, it tragic that his kids and wife will now have to bare the brunt. I believe in second chances, not at his former employer but with another employer. He should apply for other employment with the confidence that his certificate of service will not include the reason for dismissal. We all make regrettable mistakes in life, life in itself somehow does give second chances. If one compares his act with theft( I doubt the item(s) were worth more than R5000 with the corruption and fraud taking place in government that he is a choir singer compared with the quationable activities by our public servants. even when they charged with an offence, they normally still draw big salaries some 3 years after the fact!
    “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 Justloadit's Avatar
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    The case is usually that the children suffer the sins of the parents.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
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    Diamond Member Vanash Naick's Avatar
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    Yes, it's so very unfair Justloadit! I wish this gentleman everything of the best for the future. He'll get another job and start his life again. Take Rael Levitt for instance, despite the scandalous activities he engaged in, he's not even worried. I'm sure he sleeps very well at night!
    "Johannesburg - Former Auction Alliance boss Rael Levitt has admitted he made mistakes but did not deserve to be demonised by South Africa, it was reported on Sunday.
    "My downfall as South Africa's leading auctioneer started with the Quoin Rock (wine estate) auction... that went pear-shaped. I made some mistakes at that auction and I am sincerely sorry about them," he said in an email to the Sunday Times newspaper."
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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