Some Advice please

**Blurock** · 07-Oct-11, 10:08 AM

It is rather sad how work ethics have changed. You now need a contract with an employee, and drawn up in such a way that it does not prevent him from keeping his workplace clean, mouth shut, pants on, blah blah blah...

This case demonstrates the need for a proper contract as well as a disciplinary code. If you do not have this in place, things get fuzzy and it may be hard to prove your case when things go wrong.

I suggest that you google "disciplinary code". There are a number of websites that will give you a basic disciplinary code and procedure that can be adapted to your environment. The Dept. of Labour is also a good source. I can also forward you one if required.

I hope this will help;

Schedule 8 of the Labour Relations Act stipulates in section 3 that "all employers should adopt disciplinary rules that establish the standard of conduct required of their employees."

" An employers rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and available to employees in a manner that is easily understood by employees"

It is obvious that no employee may be disciplined for breaking a rule that he/she was not aware of in the first place, and therefore it is essential that the employer's Disciplinary Code and Procedure be communicated to all employees in writing, in a language that the employees can clearly understand.

**Just Gone** · 07-Oct-11, 10:21 AM

Thanks Blurock will do, but in your opinion if he left me (walked out) on the 31st July and now starts work again on the 10th October do I have to take him back at the same pay or can I start him slightly lower ?
He said to the ccma that I had fired him which I had not - I had just had enough of the constant latecoming and therefore flipped my lid ........ a little. Obviously when I told them that I had not fired him they then asked me if I would take him back - I had to say yes, but with new rules in place.

**sterne.law@gmail.com** · 07-Oct-11, 01:16 PM

If I understand you correctly, you have effectively re-instated him, as per agreement at CCMA. In terms thereof, he would be entitled to his previous package.
However, if you signed a settlement agreement at CCMA and it does not say re-instatement, or no paperwork, then change his package and go along the lines that you offerred him new employment, thus on new terms.

**Just Gone** · 07-Oct-11, 03:52 PM

Thanks Sterne .... on the standard ccma agreement two page letter, the reinstatement paragraph is crossed out as well as the Re-employement paragraph - paragraph 6 is other and she has written the following in it:
"The applicant (employee) will report for duty on 10 October 2011. The terms and conditions of employment remain unchanged. The apploicant will commence work at 07h30 to 17h00. "

Am I to presume that the terms and conditions of employment mentioned above is salary or working conditions etc and what we do ? Considering that we never had a prior contract before all this kak !

**Justloadit** · 07-Oct-11, 05:08 PM

Hi Kevin,

You can not enforce him to sign a contract, if there never was one in place, unless he agrees to it. This may bring implications in the future, because he may state that he never understood what he was signing.

Unfortunately, you will have to reinstate him at the same wages he was getting before all this took place. What you now need to do, and be careful about it, or it could be termed constructive dismissal, that any contravention of his duties, you issue a warning, and make sure you have a witness, who will be there in the future when you do go to the CCMA again. After 3 warnings for the same contravention, gives you the right to fire him. You must enforce this, or else, when he makes kak again in the future, you then fire him, he can show it as constructive dismissal, simply because you did not exercise your right.

All this labour relations is such a waste of time, and is in my opinion, one of the main reasons that there is such a high unemployment rate. In my case, I do not want to employ any new person, and am always looking to install automated machines to increase my production, with out having to employ another person. This LRA just makes my blood boil that I am simply not interested in increasing my labour force.

**tec0** · 07-Oct-11, 09:47 PM

Your first and foremost mistake is no contact. Your second mistake is no written policies within the company (I believe if there was you would have mentioned them). At this point I would recommend that you stipulate a month to month contract. It is a good way to control your employees. An example of this would be, the person gets a contact for month X to Y and if you are not happy you don't renew the contact. (I would recommend you use a professional for the transition as they tend to know the laws to do this legally)

Employees tend not to like this arrangement but due to labour-brokers it has become more acceptable. Now implementing new policies must be done by the book and I recommend you explain each policy in detail and have your employees sign the policies. A video recording "for the record" would be handy as they cannot go back and say they didn't understand or something like that"

Thus you will have more control and your employees would know where they stand if they come in late and or don't show up for work. A disciplinary system would aid you greatly and will act as a preventative measure. Be lenient "tolerant" and allow the CCMA to make suggestions for disciplinary actions first. It is actually very effective to do so.

After you followed the CCMA's advice you can always state for the record that you did everything that they recommended thus they tend to shoot themselves in the foot after the second hearing.

**Dave A** · 10-Oct-11, 12:52 PM

Originally posted by Justloadit

You can not enforce him to sign a contract, if there never was one in place, unless he agrees to it.

I'd certainly make sure the employee signed an employment contract going forward. The only negotiation point might be the content of some of the clauses, but I don't think the employee could outright reject a written contract being put in place.

In fact, it probably is a good opportunity to motivate getting all employees on to written contracts that might not have a written contract so far.

**Just Gone** · 10-Oct-11, 01:02 PM

@ Dave ............. after speaking to a labour consultant over the weekend I decided to go the contract route. He came in this morning, on time (not sure why he didnt in the past) - we sat down and I said to him that we need to go forward. The first point of issue was that we need to get an employment contract into place - he immediately got his goat up, but I then proceeded to go thro it with him whereby he said I was wasting his time and money and left !! There was nothing out of the ordinary in the contract - it was a standard employment contract which I said we could change if he or I was not in agreement on any of the topics - we had not even got to any wages/salary part before he said he was not signing any contract !!! I just think we have another case of an employee not wanting to work and thinking the ccma is gonna back him and he is going to get money out of it !!

**tec0** · 10-Oct-11, 06:13 PM

Right............. I know you think I am an idiot but trust me company policies and procedures work. Then it doesn't really matter about the verbal contract or a written contract. If the company adopted or drafted the "company policy" all you have to do is represent it in the next "toolbox talk" and let everybody sign the attendance register acknowledging the existence AND explanation of the policy.

Then simply implement it...

Remember only this; a policy must be within reason for it to be acceptable

**Just Gone** · 10-Oct-11, 09:19 PM

Tec as I said I am not repeating myself everytime for u just because u dont read posts.

**Dave A** · 10-Oct-11, 09:57 PM

So are you looking forward to your next round at the CCMA?

Actually, it might be an idea for you to file with the CCMA over this instead of waiting for the employee

**sterne.law@gmail.com** · 10-Oct-11, 10:49 PM

The employee not signing is just nonsense, presuming it is the straight forward conditions.
You made allowance for him to come back, despite him being in the wrong. You had done nothing wrong and he is fortunate to have been given another opportunity.
He has, arguably shown his character.
You are required to have signed contracts by law and therefore the employee must enter into such contract. It is a bit like a driver needing to have a valid driving licence.
Where to from here?
a) wait 5 days and then hold an AWOL procedure (may be hazy as the CCMA "agreement" ha sno actual restart date and was not re-instatement, it was re-employment, thus he is not employed until he starts work)
b) Correspond with the employee that he has 3 days to report to the office nad take up employemnt, and enter into a contract of employment failing which you accept he has no desire to do so and taht he has elected not to take up employment.

**Just Gone** · 11-Oct-11, 08:20 AM

@ Sterne .... thanks for the advice - yes the guy has really shown his true colours.
@ Dave ............ I am seriously thinking of doing this !!

**tec0** · 11-Oct-11, 08:21 AM

Originally posted by sterne.law@gmail.com

The employee not signing is just nonsense, presuming it is the straight forward conditions.
You made allowance for him to come back, despite him being in the wrong. You had done nothing wrong and he is fortunate to have been given another opportunity.
He has, arguably shown his character.
You are required to have signed contracts by law and therefore the employee must enter into such contract. It is a bit like a driver needing to have a valid driving licence.
Where to from here?
a) wait 5 days and then hold an AWOL procedure (may be hazy as the CCMA "agreement" ha sno actual restart date and was not re-instatement, it was re-employment, thus he is not employed until he starts work)
b) Correspond with the employee that he has 3 days to report to the office nad take up employemnt, and enter into a contract of employment failing which you accept he has no desire to do so and taht he has elected not to take up employment.

If I may, within the act if I remember correctly there is a time-frame that if a employee stays away for x amount of time that he/she is no longer considered as an employee?

I think the CCMA took a chance here as there was no letter of dismissal and or anything like that. Sending out a notice that the CCMA and law requirements there must be a contract emplace and enforce it as such is brilliant thinking.

That said; if the employer adopt a policy for example "those that Eskom uses: If you drunk and at work you will be spot fired" type of policies and perhaps draft and implement properly a policy about showing up on time and the like would that aid the employer in protecting his/her business?

I would imagine that policies can be useful in hearings if properly implemented and within the act?

Some Advice please

Some Advice please

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