CERTIFICATE IN FORENSIC INVESTIGATION [LABOUR LAW]

1. CERTIFICATE IN FORENSIC INVESTIGATION[LABOUR LAW] SP PHUNGULA SCHOOL OF LAW ROOM 105 phungulas1@ukzn.ac.za

2. 1. WORKPLACE DISCIPLINE • General • In a workplace the employee has a duty to obey the rules. This duty lies at the heart of an employment relationship between the employer and the employee. • On the other hand, the employer also has a duty to maintain discipline in the workplace. • Dyasi v Onderstepoort Biological Products Ltd & Others (2011) 32 ILJ 1085 (LC) – the disciplinary authority lies in the person who manages the enterprise. • The duties on both parties imply discipline with rules that are to be effected and failure to comply with them implies the power to impose sanctions on those who break them. 2. The Role of Discipline • In the employment context, discipline is to ensure employees contribute effectively and efficiently to the goals of the employer. • Modern labour law permits employers to lay down rules and standards necessary for the efficient and orderly functioning of the enterprise. However, these rules must be applied fairly and consistently. • Fairness requires that the employees must be aware of the standards required of them and they must given an opportunity to familiarise themselves with the rules of the workplace. However, if employees, by their conduct, are not willing to comply with the rules of the employer, they may be dismissed.

3. 3. Rules and standards • Rules and standards go hand in hand because this is where it is determined whether the employee has breached the rules and whether the employer has used reasonable standards to deal with that breach. • In context of employment rules may emanate from common law or they may emanate from an express agreement between the employer and the employee. • Examples • Common law – the employee may not compete with the interest of the employer. • Express agreement – the employee will work overtime when required by the employer to do so. • If the employee breaches these rules, the employer may take sanctions. This is where standards come into play because standards of fairness and reasonableness are important in making sanctions against the employee. 4. Sanctions • There are different sanctions that can be imposed on the employee for breaching the workplace rules. Depending on the nature of an offence, the employer may give general warning, informal warning, written warning, final written warning, denial of privileges, suspension, demotion, or dismissal. • Code of Good Practice provides that formal procedures do not have to be taken every time a rule has been broken.

4. 4.1. General warning • General warnings are the most basic warnings that cane be given to the employee. • In most cases these warnings are used to signal the employee that the employer intends may take action against the employee for misconduct if such conduct had been condoned in the past e.g. absenteeism. • These warning are not sanctions themselves and the employer cannot take them into account in assessing an employee’s past disciplinary records. 4.2. Informal warning • Informal warning may be given to the employee for a particular misconduct. • This warning represent the first stage of disciplinary action against the employee. • Although it is informal, the employer may choose to file such warning and may use it in assessing the employee’s past disciplinary record. • The purpose of this warning is to advise the employee of their defective behaviour and remind them of the rules in the working place and specifically the rules that the employee has breached. • Since this warning is informal, there is no specific procedure that needs to be followed before issuing a warning. • This warning may be valid for 3 months and it tells the employee how long he has got to rectify the matter) and should the employee fail to take heed of this warning then stricter disciplinary action will be taken against such employee.

5. 4.3. Written Warnings • This warning is more formal then an informal. By reducing the warning to writing, this helps the employer to prove that a warning was given if should the employee be found to have breached the rules subsequent to that warning. • A written warning is resorted to when a verbal warning has failed to produce the desired result, therefore necessitating stricter action or if the offense for which a verbal warning was issued has been repeated; or if there have been repeated offenses of other misconduct; or if the offense (even a first offense ) is considered serious enough to warrant disciplinary action stricter that a verbal warning. • An employee is usually required to sign this warning and it normally remain in force for a period of 6 months. • NB: The employee signs this to state that he understands the contents of the warning and that he has received a copy. He is not signing to say that he agrees with it – only that he understands it and has received a copy. Should the employee refuse to sign, then hand him a copy in the presence of the witness, and the witness will certify on the file copy of the warning that a copy was handed to the employee. 4.4. Final Written Warning • This is a last warning that an employee can expect before being dismissed for misconduct for which it was issued. • In other words a final written warning is taking the disciplinary process a step further, and is in fact the last resort before dismissing an employee. • The purpose is to give the employee a final chances to rectify their behaviour. • However, the last written warning is not always necessary. In Gcwensha v CCMA (2006) 27 ILJ (LAC) – the LAC held that even if disciplinary code requires a final warning before the employee is dismissed, the employer may dismiss the employee even if they are not on a final warning as long as the circumstances are appropriate.

6. 4.5. Demotions • Section 186 (2) (a) of the LRA allows an employer to demote an employee provided it is done fairly. • Examples of fair demotions are: an employer demotes an employee so as to avoid retrenching the employee; an employee can be fairly demoted only after a fair disciplinary hearing. • An employee who refers a dispute alleging a demotion must prove: firstly the fact of a demotion and secondly the unfairness of the demotion. • A demotion will occur if an employee’s remuneration, responsibilities or status is materially reduced. • In Murray v Independent Newspapers [2003] 24 ILJ 1420 (CCMA) – it was held that a demotion must involve a loss of benefit or a diminution in status. Further that the employer is under an obligation to consult and negotiate with the affected employee.’ 4.6. Suspension • A suspension can be used a disciplinary sanction i.e. a disciplinary enquiry is conducted and the outcome or penalty could be a suspension. Also an employee can be suspended pending a disciplinary enquiry. This is done so as to conduct an investigation and allows for a smooth completion of the proceedings. • An unfair suspension or any other disciplinary action short of a dismissal is an unfair labour practice (s 186 (2)(b)). • Nkosi v Embhulehi Tribal Authority [2007] JOL 19165 (CCMA) – for a suspension to be considered as fair it has to be shown that the employee was: • Informed of the reason for the suspension • Informed of the length and duration of the suspension • Paid in full for the period. The employer has to pay the salary of the employee however if the employee requests a postponement of the inquiry the employer is not obliged to pay the employee from the date of the postponement. • Ngwenya v Premier of KZN (2001) 22 ILJ 1667 (LC) – a suspension becomes unfair if it is imposed for an ‘unreasonable period, particularly if the period of suspension is limited by a disciplinary code or if the hearing preceding the suspension was unfair.’ • A hearing is generally not required before a suspension inquiry however where the suspension is likely to damage an employee’s reputation the employee is entitled to be heard before being suspended.

7. 4.6. Dismissals • Dismissal for Incapacity • An employer may dismiss an employee for a fair reason related to the employee’s incapacity [s 188(1) (a) (i)]. • The Code (Code of Good Practice) distinguishes between incapacity due to: • Ill health or injury and • Incapacity due to poor work performance [Sch 8 items 8 to 11]. • In each case the Code sets out guidelines for determining the fairness of dismissals as well as the procedure to be followed in deciding whether or not to dismiss. • Dismissal for other forms of incapacity not referred to in the Code may also be permissible, as long as it is fair in the circumstances. • The basic distinction between incapacity and misconduct is that in the latter instance the employee bears some culpability or fault. • With this distinction in mind the requirements of substantive fairness therefore differ.

8. (i) Dismissal for Poor Performance • Poor performance by an employee suggest that the person lacks skills or capability to do the work required of that employee. • Common law – employees who fail to perform satisfactory commit a breach of contract and may be lawfully dismissed. • LRA – failure to perform may indeed constitute a fair reason for dismissal. However, before dismissing an employee, and in the absence of an alternative but nevertheless fair procedure, employer is obliged to follow guidelines provide by Code of Good Practice. • According to the Code the primary components of a fair procedure include: • Providing the employee with suitable evaluation. Instruction, training, guidance or counselling; and • Affording the employee a reasonable opportunity to improve his or her performance. • Furthermore, the Code sets out factors that employers should address when determining the fairness of dismissal for poor performance. These factors include: • whether or not the employee failed to meet a performance standard; and • if the employee did not meet such standard, whether or not the employee was aware, or could reasonably be expected to have been aware, of the required standard; • the employee was given a fair opportunity to meet the required standard; and • dismissal was an appropriate sanction for not meeting the required standard

9. Failure to meet performance standard • The Code requires an employer to conduct an investigation when allegations of poor work performance arise in order to determine the reasons for this. • This is done to determine whether any weaknesses exist in the support system and whether any steps can be taken by the employer to rectify the situation. Awareness of performance standard • Employees should be reasonably have been aware of the required performance standard. • Performance standard may be conveyed by means of general directives eg warning and counselling if an employee is underperforming. • The more the warnings and guidance the employee has received the more likely he is aware of his performance. • Sun Couriers (Pty) Ltd v CCMA (2002) 23 ILJ 189 (LC) – the employee was dismissed for poor performance, following his failure to meet prescribed performance target. On the facts of the case it appeared that the employee was aware of standards of performance as he himself accepted that they were reasonable and repeatedly achieved them in the previous years. The court found therefore that standards were valid and reasonable. Reasonable opportunity to improve • If an employee knows his shortcomings and how the could be rectified, an employee should be given an opportunity to improve. Appropriate Sanction • Dismissal must be an action of the last resort. • Employee must be given the opportunity to be heard before a decision to dismiss is made. • Employer must prove that an employee is unable to perform duties he was hired to do.

10. c) Procedural Fairness • Procedural fairness is designed to inform poor performer about their shortcomings, and give them an opportunity to improve. • The purpose is to make a dismissal decision a fair one. • Process of assessments, advice, counselling, guidance, and warnings are part of the fairness of dismissal. • Item 8 provides that employees cannot be dismissed for poor performance unless the employer has: • Given the employee appropriate evaluation, instructions, training, guidance and counselling; and • If an employee continues to under perform after a reasonable period of time then cause of poor performance should be investigated and employee should be given a chance to be heard. • Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith(1993) 14 ILJ 171 (LC) it was held that an employer must make an assessment before dismissing an employee for lack of skill and that, without an assessment, any judgment regarding the employee’s performance will not be objective nor reasonable.

11. (ii)Medical incapacity Substantive criteria: The Code provides that any person determining whether a dismissal arising from ill health or injury was unfair must consider whether or not the employee is able to perform the work; and if the employee is not capable - • the extent to which the employee is able to perform the work; the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and • the availability of suitable alternative work [Sch 8 item 11]. • Thus the employer is required to investigate an employee’s work circumstances or duties to determine whether the duties can be adapted to accommodate any incapacity [Item 11 (b) (1) to (iii)]. • Davies v Cleane Deale CC (1992) 13 ILJ 1230 (IC) – sets out the process which the employer must follow in establishing whether an employee may be dismissed for incapacity which is now captured in items 10 and 11of the Code: • There is a greater duty to accommodate the employee where the disablement is caused by a work-related injury or illness. • The employer must in the first instance ascertain whether the employee is …capable of performing the work … for which he was employed, and if not, the extent to which he will be unable to perform his former duties. This investigation, in which the employee is entitled to participate … may … require further medical investigation and opinion and/or the employee’s being asked to perform his former tasks to demonstrate is ability … • The employer should next, after consultation with the employee, ascertain whether the duties required of the employee … can be so adapted that the employee is capable of fulfilling [them] either alone or with such assistance as is reasonable under the circumstances. • The employer must, if the employee cannot be placed in his former position, ascertain whether alternative work even at a reduced salary is available within the employer’s organisation

12. In dealing with dismissal on the grounds of ill health, it is essential to determine whether the illness or injury is temporary or permanent. • Schedule 8 item 10(1) provides that in respect of temporary ill health or injury, the dismissal may be justified if the employee is likely to be absent ‘for a time that is unreasonably long in the circumstances.’ However, this much will depend on the nature of the work. • The employer is required to establish the nature and severity of the incapacity and the prognosis for recovery. • The onus rests on the employer to prove that the employee is incapacitated. • Hoffman v SAA (2000) 21 ILJ 2357 (CC) in which SAA refused to employ Mr Hoffman on the basis of his HIV status.

13. Procedural fairness: • The procedural aspect of the inquiry and the substantive factors to be considered in determining whether dismissal is appropriate are intertwined. The first step suggested by the Code for an employer is to determine whether the employee’s incapacity is temporary or permanent. • In the case of temporary disability, the employer is advised to take the following steps: • investigate the extent of the incapacity or the injury; • establish the likely length of the employee’s period of absence in order to determine whether it will be ‘unreasonably long’ in the circumstances; and • investigate ‘all the possible alternatives short of dismissal’. Factors to be taken into account include ‘the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee’ [Sch 8 item 10(1)]. • Unreasonably long’ absence may be treated as permanent incapacity. • In the event of permanent incapacity, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate his or her disability [Sch 8 item 10(1)]. • The degree as well as the cause of incapacity is relevant to the fairness of possible dismissal. • Different causes of incapacity may indicate different kinds of remedial action short of dismissal. For example, where incapacity is due to alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider [Sch 8 item 10(3)].

14. In the course of the employer’s investigation, the employee is entitled to state his or her case and to be assisted by a trade union representative or fellow employee [Sch 8 item 10(2)]. • The usual requirements of a fair hearing will apply. • Where employees have been injured at work or are incapacitated by work related illness, the employer’s duty to accommodate the incapacity of the employee is more onerous [item 10(4)]. • Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC) - held that “procedural fairness pertaining to incapacity on the grounds of ill health involves the employer’s consulting with the employee about his ailment and, in conjunction with him, trying to find a solution to the problem, including the consideration of the provision of suitable alternative employment for the employee.” • National Union of Mineworkers & Another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC) it was held that, “[w]hile an employer may not be obliged to retain an employee who is not productive, … fairness requires that a proper assessment be made of whether that situation has been reached before the employer resorts to dismissal.” It may well be possible, the court added, “that the post can be adapted to account for the employee’s incapacity without undue hardship to the employer, or that an alternative post may be found, or that the employee concerned can be given preference for the first suitable vacancy which occurs. These are but examples of the manner in which the employee’s misfortune may be alleviated, and are not intended to be exhaustive. Each case will depend on its own facts.”

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