Job losses and staff fears are boiling over with record numbers of complaints to the Commission for Conciliation, Mediation and Arbitration (CCMA). In April, the CCMA received 11 560 new cases with 83 percent citing unfair dismissal.
The top three regions for complaints were Johannesburg (3129 cases); Western Cape (1706) and KwaZulu-Natal (1702). "Globally individuals and companies are under severe financial stress. Companies are reviewing their budgets, staff counts and cutting costs where they can. Some however don't follow correct procedures when restructuring or laying off employees and this results in many costly hours at the CCMA and or in negotiations with a labour lawyer," according to Liza van Wyk, CEO of management and skills-training organisations AstroTech and BizTech.
Let go without warning
The Cape Times recently reported how waiters, chefs, housekeepers and artisans are often let go without warning when establishments shut down or cut staff numbers. Many of these staff members are not employed under a contract and employers think they can dismiss them out of hand. A popular Cape Town CBD restaurant that closed two months ago without warning, as an example, saw 50 people lost their jobs and a former employee says only 15 have found employment since then.
According to Celeste Allen a labour law attorney who assisted AstroTech develop it's Labour Relations and Labour Law course and who facilitates the course said, "Section 189 of the Labour Relations Act requires that any employer terminating services due to operational requirements (retrenchments) must follow a process of consultation with the staff in an effort to try and mitigate job losses.
On average, for this process to be followed properly, the employer is looking at between three to six weeks before they should make that final decision. Then the employees are to be paid out the correct notice pay in addition to severance pay.
"The number one mistake made by employers is in respect of the procedure they follow in taking disciplinary action," said Allen. For example, an employer may dismiss an employee without an acceptable disciplinary hearing chaired by an objective chairman or the employer fails to give the employee sufficient time to prepare for the hearing or sufficient information relating to the charges laid against the employee. "Very often I'll look over a notice of hearing and find that the employer has simply stated that the employee is charged with theft, but they fail to set out information such as - theft of what; date of alleged theft; circumstances surrounding the alleged theft."
South Africa is also in 'strike season' which usually begins in May and continues until September. There have been major strikes by doctors, municipal bus drivers and even Dial-a-Ride which left disabled people in Cape Town stranded.
Van Wyk said their Labour Relations and Labour Law course taught employers how to control staff tensions, defuse conflict and if necessary how to effectively take measures when difficulties emerged. She said the top five key steps that an employer should follow when there is a strike:
- Ensure the company has a strike action plan and a strike contingency plan. The strike action plan sets out steps on how the business will deal with the striking employees and the strike action as a whole, whereas the strike contingency plan sets out the practical guidelines on how the business will continue its operations during the strike action.
- Ensure that you have a strike team in place. It is imperative that you have a core team of managers who will be tasked with the responsibility of monitoring the strike and the behaviour of the strikers, and who can negotiate with strike representatives to try and bring the strike to an end quickly.
- Notify neighbouring companies and your clients that a strike is imminent and assure all that you have matters under control and that you will endeavour to ensure the least amount of disruption to your neighbours and services to clients.
- Notify your security company (or the police) - you might have to deal with violence or unruly behaviour and may need assistance and too to counter any intimidation of employees who are reporting for duty.
- Try to avoid the strike action if at all possible. "No South African employee can afford to behave badly at work. Times are really tough, don't give your employer a reason to dismiss you," cautions Van Wyk. It is important for all employees to know and understand the company code of conduct and understand their role in the business.
No code of conduct
"Many employers do not have any form of code of good conduct in place. This is contrary to the requirements of our labour legislation and places the employer in a difficult position in that, without a code of conduct setting out those offences which are subject to disciplinary action, the employee might be able to raise a defence "but I didn't know."," explained Allen.
AstroTech offers Labour Relations and Labour Law as both a public and an in-house training course for companies. The course highlights the importance of procedural fairness and the rights of an employee. "We have professional facilitators with various backgrounds and experience, including lawyers, and together we compile the most up to date course material to ensure that our delegates understand the theory and leave the training course with practical steps to apply in their workplaces," Van Wyk said. "The law is filled with jargon and not easy to understand. Our course provides step by step procedures that need to be followed to ensure fair disciplinary action."
Labour Relations and Labour Law includes practical case studies; a guideline on how to prepare for disciplinary action including how to prepare a witness and copies of template notifications e.g. disciplinary hearing notification letter or employee refusing to attend disciplinary enquiry. "Issuing a staff member with the notification and sitting down to discuss the case is not enough. The chairman and facilitator need to be prepared and confident in exactly what is appropriate and how to conduct the hearing correctly.
Otherwise they will be faced with the CCMA. If you do things right, you may still get a case against the company but if all parties involved in the hearing followed the stages and documented every step you are more likely to leave with your head held high,"Van Wyk said.