Labour Questions and Answers
Do I have to pay a bonus to an employee who’s guilty of negligence?
Question
I’ve charged my employee with gross negligence and failure to follow
procedures.
If he’s found guilty in his hearing can I:
• Refuse to pay him his discretionary annual bonus?
• Demote him and decrease his salary to what it was before
his latest increase?
• Reassign him to a different position as soon as I identify
a possible position?
Answer
You can’t implement any of these actions unilaterally
(except perhaps the withholding of his discretionary bonus, depending on the
facts) because they could amount to changes on the employee’s terms and
conditions. He’d have to give his consent to these measures before you implement
them.
The discretionary bonus is tricky. Many employers call it a discretionary bonus
but pay it every year regardless. If it’s clearly linked to performance or
conduct then you may have grounds for withholding it.
Can I decrease an employee’s salary if he’s doing less work?
Question
My employee's workload has diminished; can I decrease
his salary?
Answer
You can’t unilaterally decrease your employee's
salary. You must consult with him and get his consent or get him to agree
to a lower salary as an alternative to something more drastic like
retrenchment, if you don’t have enough work for him.
What steps can we take to dismiss
an employee immediately?
Question
We reviewed an employee’s leave records and noticed that she
has had 31 days off. Six days were ordinary leave days and five were maternity
checkups arranged beforehand. Twenty sick leave days were taken. In
mid-December, she applied for her maternity leave which was approved without
pay. Just before this, she applied for one day’s sick leave to go to the clinic
about her pregnancy. The next day, she didn’t come to work but sms a colleague to say she was ill. It rained very heavily
on that day but all other members of staff who rely on public transport arrived
at work. In view of the fact that we are a small company and as her relief
worker is on leave, this absence caused major disruptions. We now wish to
terminate her services. We are required to give her one month’s notice (as per
her letter of appointment) but to get her to leave immediately we are willing
to pay her for her notice period too. What other amounts could we be liable for
if she took the matter further? She is aware of our intentions but we would
like her to leave immediately.
Answer
There are three grounds on which an employee's employment
can be terminated:
- For reasons based on the
employee's conduct (i.e. misconduct);
- For reasons based on the
employee's capacity (e.g. illness or injury); and/or
- For reasons based on the
employer's operational requirements (i.e. retrenchments or redundancies).
In all categories, you need to have a fair reason (good
reason) to dismiss the employee and follow a fair procedure in doing so.
It seems to us that you have an issue with the employee’s
absenteeism. This may be a case of misconduct as opposed to incapacity or
operational requirements. To be able to discipline the employee you must be
able to show that her conduct amounts to misconduct (for example she abused
sick leave and misled you about the issue, or she was dishonest when she claimed
that she was ill and therefore could not report for duty, or that she was
absent from work without permission, etc.). You will have to investigate
whether there was some or other form of misconduct that justifies the dismissal
of the employee. The mere fact that she took time off to
attend to her pregnancy or that she has been taking sick leave, etc. is not
enough unless there was some or other form of misconduct. You can’t
dismiss the employee by giving her notice and paying some or other amount. If you
do so, you may face an unfair dismissal claim which, if successful, could lead
to the employee being reinstated with back pay or receiving up to 12 months’
remuneration as compensation for the unfair dismissal. Also, a dismissal will
be automatically unfair if the reason for the dismissal is the employee’s
pregnancy or any reason related to her pregnancy. The maximum compensation
payable for such dismissals is 24 months’ remuneration.
How to demote an employee
Demotion can be an attractive alternative to dismissal. The
labour courts
and tribunals, such as the CCMA, also encourage you to be more creative
when you impose penalties, and to use dismissal as a last resort. You do
need to ensure, as always, that you do things right. You must act fairly
and not break any labour laws when you demote an employee as a penalty for
misconduct. Take note of the following:
You may not simply demote an employee unilaterally. Demotion as a penalty
may only be used as an alternative to dismissal.
Demotion must be both procedurally and substantively fair. You must follow
all the procedural requirements set out in Schedule 8 for holding a fair
disciplinary enquiry, including proper notification of the allegation/s,
enough time to prepare for the hearing, other employee rights to
representation, an interpreter and so on.
Once your enquiry chairperson has found the employee guilty of an offence
for which dismissal is the penalty (as provided in your disciplinary code),
the chairperson may use her discretion. If the nature of the misconduct or
the circumstances of the offence or the personal circumstances of the
offender justify a penalty short of dismissal, you should be able to say to
the employee - "You have been found guilty of a serious offence which would
usually be punished with dismissal but we (the employer) are prepared to
give you another chance, if you accept a demotion as an alternative
sanction to dismissal".
Provided this is indeed a fair alternative, the employee may choose to be
demoted rather than dismissed. It is important, however, that should the
guilty employee prefer demotion, he signs a document to that effect stating
that by signing the document he confirms that he is willingly choosing
demotion as an alternative to dismissal.
For more on demotion, including a sample demotion agreement, consult
chapter D15 in labour U4 of 2007.
Having the right sample demotion agreement can simplify your life
immeasurably and protect your business. You'll be the first to know that
practically everything must be signed, sealed and kept on record. Ensure
you use the right wording and have exactly what you need, on hand. Do so by
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Poor Performance of an employee – Problem Solving
When you are faced with a shortage of skills, dealing with
poor performers
effectively becomes even more important for your business. If you use
counseling as a problem-solving tool you are more likely to have success
and restore your under-performing employee to being productive.
The key ingredients of a problem-solving approach are:
-identify the underlying causes of the problem through discussions with
your employee
-"brainstorm", together with the employee, as many solutions to the
problem as possible without discussing or criticising
him
-afterwards, start evaluating the proposed solutions on the basis of their
feasibility, practicality and affordability
-put in place a detailed plan of action.
Can I decrease my employee’s salary if I demote him?
Question
Can I decrease my employee’s salary if I demote him? If salary increases my
across-the-board are 8% can I give this employee a lesser increase?
Answer
A demotion ordinarily would necessitate a decrease in salary. However, you must
discuss and agree the issue with your employee usually as an alternative to something
more serious like dismissal.
If you’ve agreed an across-the-board increase with a union you can’t exclude
one employee from the increase. If you simply implemented an across the board
increase for all your staff you may have difficulty justifying why you’re
excluding one employee from the standard increases.
If you have a practice of excluding poor performers from the increase, however,
that would be in order
Maternity Leave
Question
My employee unexpectedly went into labour at seven
months while she was on her December holiday. She gave natural birth to twins
but because the babies were premature they’re not going to be discharged until
the end of March. My employee wants to return to work at the end of
January and then take her additional three months maternity leave when her
babies are discharged from hospital.
Can I allow this? How does she claim for UIF if she takes her maternity
leave at a later date?
Answer
Employees may go on maternity leave any time from four weeks before the expected
date of birth. Thus you can allow your employee to be on maternity leave
in January 2009, return to work, and then take the remaining three months when
the doctors discharge the babies in March.
The employee can claim UIF during the months in which she’ll actually be away
from work on maternity leave.
You have to keep an employee’s job
open if she’s on maternity leave
- Your employee has the right to
return to the same or comparable job after a pregnancy related absence.
- It is unfair dismissal
if you dismiss her on the basis of pregnancy or any reason related to
pregnancy. (Section
187 of the LRA)
- It is unfair to offer her a
lesser position than she held before going on maternity leave.
- You will be guilty of
constructive dismissal if you make work intolerable for your employee by
discriminating on the basis of pregnancy.
Don’t discriminate against
pregnant employees
The Constitution prohibits direct and indirect
discrimination on the grounds of pregnancy.
The Labour Relations Act makes it unlawful to dismiss your
employee on the basis of pregnancy or reasons related to pregnancy.
The Employment Equity Act also prohibits direct and indirect
unfair discrimination on the basis of pregnancy.
What can I do if an employee
doesn’t disclose her pregnancy?
Question
In November 2007 I employed a pregnant woman in an
administrative position. She was aware it was a one year contract. She did not
disclose that she was pregnant when she accepted the job. Her baby is due in
March 2008. She is entitled to four months maternity leave and will be back to
work for the final two months of her contract. In the meantime, I will have to
employ another person to cover for her.
Is there anything I can do as she didn’t disclose her
pregnancy?
Answer
There is nothing you can do! An employee has no obligation
to disclose that she is pregnant. It would have been a different matter if
you had asked her whether she was pregnant and she intentionally misled or lied
to you.
She is entitled to four months unpaid maternity
leave. You can employ a temp while she is on maternity leave. Remember, it is
unfair dismissal if you dismiss her based on her pregnancy or for a reason
related to her pregnancy.
Do we have to pay severance for a fixed-term contract?
Question:
My employee worked for me for six years on a fixed-term contract that was
renewed on a regular basis.
I made him a full-time permanent employee in 2005. We now, unfortunately, have
to retrench him. I know the Labour Act says one week for every completed year
of “SERVICE” for the payment of severance pay.
Is the fixed-term contract period classified as service, or will this only
apply since he’s been a permanent employee?
Answer:
It makes no difference what the status of his employment was. His full period
of service counts for the purposes of severance pay.
Can my employee agree to work extra overtime?
Question
According to the BCEA, an employee should work normal hours of not more than 45
hours per week and overtime of not more than 10 hours per week.
Is there any provision allowing my employee to agree to work more than the 10
hours per week overtime?
Answer
An employer and an employee can’t agree to
arrangements that would be in contravention of the legislation: i.e. the
BCEA in your case. Your employee cannot under normal circumstances work
more than 10 hours overtime per week. However, there are some flexible options
that the BCEA allows under special circumstances – see the provisions on a
compressed working week and on averaging of hours in Chapter W01 of your
Handbook.
Do I have to pay employees who didn’t pitch for work?
Question
My employees didn’t pitch up for work on 5 January when we opened after the
December break, even though I had made it very clear when they would have to
start work again on that day. They only returned a week later and acted as if
nothing was wrong.
Answer
You don’t have to pay the employees for the days they
didn’t come to work.
You can also level disciplinary charges against them (e.g. insubordination
and/or absence from work without authorisation) and
subject them to disciplinary action.
When can an employee request family responsibility leave?
An employee may request family responsibility leave:
* when the employee's child is born;
* when the employee's child is sick; or
* in the event of the death of-
* the employee's spouse or life partner; or
* the employee's parent, adoptive parent, grandparent, child, adopted
child, grandchild or sibling.
