Poor Discipline is the result of Poor Management

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Failing to take action for minor misconduct could blow up in your face!

Managers often avoid the conflict of disciplining employees for minor misdemeanours such as poor timekeeping, wastage, bad customer service, abuse of internet or cell phone privileges or failure to adhere to the Company dress code, until they reach the point where they’ve had enough.  This frequently leads to an over-reaction and could result in unfair and inconsistent disciplinary action.

It is the responsibility of management to ensure that timeous and appropriate corrective action is taken and failing to do so is likely to result in a culture of indiscipline and will merely add to management frustrations.

When chairing disciplinary hearings, we often hear from the initiator in aggravation that the accused is a problem employee and that he is frequently negligent, comes to work late or stays away without contacting the employer, yet there is no record of any disciplinary action which has been taken against the employee up to that point.  The initiator may sometimes even claim that he has spoken to the employee on numerous occasions about a particular offence, but without any record of such interaction, it may as well not have taken place at all, unless there is verbal testimony from a witness who can corroborate it.

It is also unfair toward the employee because the manager’s failure to decisively address the misconduct, leads the employee to believe the manager does not see his behaviour as a problem or even that it is condoned.  In the absence of any form of consequence the employee is not encouraged to modify or correct his behaviour and may persist with the unacceptable conduct to the detriment of the business.

Having rules in place is only part of the solution.  These rules need to be consistently applied and enforced.  Where management allows frequent breaches of the rules to go unchallenged, precedent is created and very soon a new, lower standard is established.  Fortunately, even lowered standards can be re-calibrated by drawing a proverbial line in the sand, re-establishing the desired standards and communicating these to all employees along with the consequences of non-compliance.   Being able to prove that this was done is critical to the success of such an exercise, which means it should preferably be in writing or, where it was done verbally (i.e. in a meeting), an attendance register should be kept as proof of who was present at the time of the communication.

Let Pro-Act HR & IR Consultants train your line managers and supervisors on how to handle day-to-day misconduct in an effective and compliant manner.  Contact us for a quote or more information.

Published 14.12.2018

Will Not, Cannot or Just Damn Lazy

More often than not employers get it wrong.  Although each of these issues mentioned in the title requires a different approach, the result in all may be that of dismissal.

 

Misconduct, or unacceptable behavior, occurs when a rule is broken, or some other unacceptable behavior happens.  It usually results in immediate disciplinary action and, depending on the severity of the misconduct, perhaps even dismissal.

 

It is therefore important that the employer satisfies the following requirements in order to render a dismissal substantively fair.

  • Is there a rule/norm in place?
  • Was the employee aware of the rule/norm?
  • Was the rule/norm broken?
  • Was the employee aware of the consequences of breaking the rule/norm?
  • Is the rule/norm consistently applied?

 

Will not’ is a deliberate action taken by the employee.  The answer to whether the “contravention” of a workplace rule is misconduct or poor performance is determined by asking the following questions:

  1. Do I have the ability, but I don’t want to?
  2. Do I lack the ability, but I want to…?

If the answer to the first question is yes, then it is misconduct and if the answer to the second question is yes, then it is poor performance.

 

That brings me to the issue of ‘Cannot’.

 

There are three basic types of poor performance:

  1. Unsatisfactory work content – in terms of quantity, quality, and not meeting required production targets etc;
  2. Breaches of work practices, procedures and rules – such as breaching occupational health and safety requirements, excessive absenteeism, etc; and
  3. Personal problems – these are usually ‘off-the-job’ issues that affect the employee’s performance at work.

 

The procedures for handling poor performance are completely different from those for handling misconduct.  Performance is all about how the employee does the job.

 

Poor Performance results in investigation, counseling, meetings and discussions with the employee and training.  It should be noted however, that the aim of the counseling session is not to punish the employee, but to assist him/her to recognise and overcome the problem.

 

This does not mean that such an employee cannot be dismissed.  If the matter comes to dismissal, then the Code of Good Practice – Dismissal  must be applied, as well as the employer’s own procedures, if any.  The employer is obliged to consider whether the employee did, in fact, fail to meet a performance standard, if he or she could reasonably be expected to have been aware of the required standard, whether a fair opportunity was given to the employee to meet the required standard and most importantly, the employer must assess whether or not dismissal is an appropriate sanction.

 

Being ‘lazy’ on the other hand is when an employee is averse to work or avoids it.  It can also be used to describe something slow-moving, lacking energy or not in a hurry to get things done.

 

Employees who do not pull their weight cause employers or business owners much frustration.  Such employees are often referred to as being “disengaged” and when their performance is consistently poor, it has the potential to impact on a company’s profitability.

 

If you have invested a significant amount of time and effort in training your staff, it may be worth it to try to re-energize a team member who has strayed off-course.

 

Consider these four tips for helping slacker employees get their “mojo” back:

– Talk it out

– Create accountability

– Play to their strengths

– Offer incentives

 

Written by:  Dirk Scholtz

Published 14.12.2018

Alcohol At Work Functions

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It is the time of year when many employers are planning or hosting their year-end or award functions and whether this is on- or off the Company premises, it often involves the consumption of alcohol.  Alcohol at work functions can lead to unintended consequences which last long after the fun and even the effects of the alcohol have faded.

To what extent should an employer, who makes alcohol available to employees during a function, be responsible to mitigate the effects of alcohol consumption in order to safeguard employees and to avoid potential legal liability?

Employer’s can be held legally liable for damages caused by the actions of their employees if those actions took place within the course and scope of their employment.  This could include company-sponsored functions and events.  Apart from that, there is potential for reputational damage to the employer caused by intoxicated employees; or harm caused by such employees to themselves or others by driving under the influence of alcohol or simply driving whilst over the legal limit.  Health and safety obligations and possible workplace injuries could also impact the business, especially where the function takes place on the Company premises.

Whilst you need to mitigate the legal liability and risk of your business, you do not want to allow legal concerns to dictate your relationship with your staff.  Here are some pointers on how you may safeguard your Company against some of the risks but still enjoy the festivities:

 

  1. Create awareness of your company culture among employees with specific reference to the fact that excessive consumption of alcohol is unacceptable at work functions. Include guidelines on the use of alcohol in your company’s code of conduct and/or disciplinary code.

 

  1. Be sure to offer a range of non-alcoholic beverages at functions, to remove the focus from alcohol. Never make drinking (or eating, for that matter) the main focus of any function.  Always ensure that there is ample entertainment, presentations, the sale of branded goods or gifts, games, or other activities for employees to participate in and that these are the main focus of your company or team-building event.

 

  1. Consider serving only wine and beer, and no spirits or shooters. Limit the amount of alcohol that the company provides by using a ticket or voucher system or some other means to keep track of the number of drinks served to each individual.  Penalties or Fines in the form of downing drinks or shooters should be strictly prohibited.

 

  1. Restrict the period of time that the bar will be open. Close the bar while meals are being served or while presentations are being made and at a reasonable time to signal that the event is drawing to a close.

 

  1. Use a professional bar service with trained bar tenders. Do not allow employees to serve their colleagues or themselves.   In fact, it is never a good idea to introduce a self-service beverage bar which includes alcohol.

 

  1. Review your Company’s insurance and risk cover to establish whether you will be covered for an event where alcohol is served.

 

  1. Prior to the event, you should issue an advisory notice which provides guidelines on employee behaviour at the event and which informs employees that they are responsible for their behaviour, even whilst under the influence of alcohol. This advisory should include a cautionary note that alcohol should be consumed in moderation as well as a reminder of the provisions of the Road Traffic Act in respect of driving under the influence.  The advisory document should include a reference to the fact that all employees are still bound by the Company’s Code of Conduct at Company-sponsored events, even where these take place outside of working hours and that disciplinary action may be taken against employees who over-indulge and/or who behave inappropriately.  It is recommended that employees sign or indicate acknowledgement of this advisory notice, which can be built into their response (RSVP) to the invitation to the event.

Whilst alcohol can add some festive cheer to an event, employers should be mindful that during the function, just like in the workplace, employee safety should be their top priority.

Pro-Act HR and IR Consultants can assist you in crafting a tailor-made policy document which addresses the specific needs of your Company.

Published 16.11.2018

Cannabis and the Workplace

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Many employers may be concerned about the recent Constitutional Court judgment which declared that South Africans now have the right to cultivate, be in possession of, and use cannabis, in private, although the term “in private” has not yet been clearly defined.  As an employer, you need not be overly concerned.

This Court’s decision does not necessarily mean that the employer immediately has to amend its policies, procedures, or its disciplinary codes.  The ruling should also not be read in isolation, but needs to be considered in conjunction with other existing legislation, such as the Occupational Health & Safety Act.  The effects of intoxication in the workplace, be it alcohol, or any other substance, still poses a health & safety risk. Where an employer has a company rule which prohibits the possession of or being under the influence of an intoxicating substance, the breach of such a rule would still be considered as misconduct and should be based on the General Safety Regulations.

There may well be room for some debate around the testing for cannabis use due to the specific characteristics of this substance and it is therefore important to differentiate between a subject testing positive for THC or tetrahydrocannabinol, (the chemical responsible for most of the psychological effects of cannabis) and “being under the influence” of cannabis.

Most commonly used methods of testing (urine or saliva), only indicate that the subject had used cannabis prior to the test being administered and not whether the subject is actually “under the influence” at the time of administering the test.

  • Urine tests can not determine the exact day or hour that marijuana was last used. This is due to the fact that THC can stay in the user’s system even after he/she has stopped using cannabis and long after the intoxicating effects have faded. THC can linger in the subject’s system up to 10 days on average for a casual user and for 2 to 4 weeks if the subject uses cannabis often. Heavy users can test positive for THC for more than a month after the last use.
  • Saliva testing, which requires an oral swab taken from the subject, is regarded as slightly less invasive than urine testing and is perhaps more sensitive in that it would typically indicate whether the subject had used cannabis in the period 2 – 24 hours prior to the test being administered.

For these reasons, it is important for employers to supplement the use of urine or saliva tests with standardised and documented observation tests, which place on record the subject’s physical appearance, odour, reaction time, perception and spatial awareness at the time of the test.  Historically, such observation test have proven invaluable in instances where disciplinary action was required against employees who were considered to be under the influence of alcohol, to supplement the results of the breathalyser tests and would therefore be likely to prove equally beneficial where suspected use of cannabis is concerned.

It is, therefore, reasonable to conclude that the Constitutional Court judgment will not offer protection to employees against disciplinary action should they act in contravention of existing company policies which prohibit employees from being in possession of or under the influence of intoxicating substances at work.

Pro-Act HR and IR Consultants can assist you, should you require more information, contact dirk@pro-act.co.za | 084 5555 291

Written by DIRK SCHOLTZ

Published 16.11.2018

Probationary Periods

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Employers are within their rights to place newly appointed employees on probation in order for new recruits to prove themselves.   Probationary employment is also specifically provided for in Schedule 8 of the Labour Relations Act, Code of Good Practice: Dismissal (the Code).

 

The Code describes the purpose of the probationary period as …”to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.”  The Code however also states that;  ”Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment.

 

Whilst the Code does not prescribe the duration of the probationary period, employers should be mindful that the Code does stipulate that the period of probation should be determined “in advance” and should be of “reasonable” duration.  The duration should be determined according to the nature of the job and the time it would take to determine whether the employee is suitable and can fulfill the inherent requirements of the job.  A probationary period which is unreasonably long, depending on the specific occupation, may therefore be regarded as an unfair labour practice.

 

The employer should also ensure that probationary employees are given “reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.”

 

Extending the probationary period

 

The Code allows for the period of probation to be extended under certain circumstances, but clearly states that this can only be done …”for a reason that relates to the purpose of the probation.”…  which is to “evaluate the employee’s performance before confirming the appointment.”  Should the employee not perform satisfactorily during the probationary period, the employer may elect to extend the probationary period.

 

Where the employer has just cause to extend the probationary period, the employer should;

  • give the employee prior notice (preferably in writing) of his intension to extend the probationary period, for how long and why, providing full details of how the employee’s performance has failed to meet the required standard, and
  • the employee should be given an opportunity to make representation as to why the probationary period should not be extended and the employer should give consideration thereto.

If, after giving due consideration, the employer still believes the probationary period should be extended, the employer must;

  • advise the employee of his rights to refer the matter to the CCMA or Bargaining Council, whichever the case may be.

The period of extension should also be reasonable and proportionate with the “purpose the employer seeks to achieve.”

 

Can you dismiss an employee who is still on probation?   

 

The Code of Good Practice clearly states that, in the event that the employee is deemed not competent the employer may either extend the probationary period or dismiss the employee after complying with the relevant provisions of the code.  The requirements for fairness in terms of extension and dismissal are similar, which means that dismissal of a probationary employee may only take place after the employer has;

  • notified the employee of how his performance has failed to meet the required standard,
  • given the employee (or his representative) an opportunity to make representation as to why he should not be dismissed, which the employer should give reasonable consideration.

If, after giving due consideration, the employer still believes the employee should be dismissed, the employer must;

  • advise the employee of his rights to refer the matter to the CCMA or Bargaining Council, whichever the case may be.

 

As with any case of dismissal for poor performance, the employee should always be afforded a “reasonable period of time for improvement”, before dismissal is contemplated.  In addition, the employer should also consider other means, short of dismissal, to resolve the matter.

 

Where probationary employees are concerned, it is my view that an extension of the probationary period, accompanied by appropriate guidance, training and counselling whilst the employee is afforded reasonable time to improve, should ideally precede a dismissal.   Having said that, however, the Code states that when determining whether a dismissal during or on expiry of  the probationary period is fair, the person making the decision “ought to accept  reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.”

 

Pro-Act HR and IR Consultants can assist you in drafting employment contracts which meet the specific needs of your business and advise you on the inclusion of appropriate probationary periods where applicable.

Published 20.09.2018

Notice Periods & Breach of Contract

Section 37 of the Basic Conditions of Employment Act (BCEA) clearly specifies the statutory notice periods required to be given by either party when terminating the employment contract.  These are:

  1. one week, if the employee has been employed for six months or less
  2. two weeks, if the employee has been employed for more than six months, but not more than one year, and
  3. four weeks if the employee: –
  • has been employed for one year or more; or
  • is a farm worker or domestic worker who has been employed for more than six months.

A written agreement (usually articulated in the contract of employment) may provide for certain of these notice periods to be varied, but with very clear limitations.  It is important to note, however, that, under no circumstances, “may an employer require or permit an employee to give a period of notice that is longer than that which is required of the employer.”

What happens when an employee gives the employer only 24 hours notice or less?

In a generation which is driven by instant gratification, there appears to be an increasing tendency to resign at short notice with some employees handing in their notice and simply walking out immediately (usually on pay-day or soon thereafter). When this happens, the employee is clearly in breach of their contract of employment.

What recourse does the employer have?  How can the employer protect himself against such behaviour?  Does the employer have a right to recover his losses from money which is owed to the employee?   

Employers would be well advised to clearly specify in the employment contract that, in the event that the employee fails to work the contractual notice period, the employer will deduct from the employee’s final salary, an amount equal to the salary the employee would have earned during the period of the notice which was not worked.  When the employee agrees to the conditions of employment at the outset, he then also legally binds himself to these conditions surrounding the notice period upon termination.   Should the contract of employment not contain this specific proviso, then the employer would not be entitled to make any deduction from the employee’s final salary in respect of notice not worked as the employee has not given his consent in this regard.

In cases where the employee resigns abruptly on or just after the monthly pay date and has little or no annual leave pay due to him, there may be insufficient funds due to the employee, for the employer to recover the full value of the un-worked notice period from the final payments.  In such instances, the employer’s only option would be to pursue a civil claim against the employee.  Invariably, the legal costs in such a matter would far exceed the value of the employer’s claim against the employee, in which case it would not be economically viable to proceed such such a claim.

The old adage of “prevention is better than cure” remains true and employers should rather protect themselves by means of a detailed employment contract.  The absence of an employment contract actually puts the employer at greater risk than the employee due to the fact that the employer then can not rely on any of the protections provided for in the Basic Conditions of Employment Act, which require a “written agreement“.

Pro Act HR and IR Consultants can assist your organisation in the drafting of employment contracts tailored to meet the specific needs of your business.

Published 19.09.2018

Constructive Dismissal

Can an employee tender his resignation of his own accord and then later claim he was unfairly “dismissed”?

The term “dismissal” is usually associated with the employer terminating the employment relationship. However, in some cases, it can also be associated with “resignation” where the employee resigns because the employer made continued employment intolerable.  This is generally known as “constructive dismissal” and is provided for under section 186(1)(e) of the Labour Relations Act.

Some employers have been known to actively create circumstances which are unbearable for the employee with a view to pressurise him or her into resigning.  There are also many examples where employers threaten an employee (who has committed some form of misconduct) into resigning so they may avoid the need for protracted disciplinary procedures, i.e. the employee is told:  ”Resign or face a disciplinary hearing, which will result in your dismissal in any event.”  Both of the aforementioned examples could give rise to a claim of constructive dismissal, depending on the circumstances.

In a claim of constructive dismissal the onus is on the employee to prove that:

  1. it was the specific actions of the employer (or lack thereof) which made continued employment intolerable for him/her, and
  2. he had no reasonable alternative other than to resign.

Each individual claim of constructive dismissal must be evaluated on its own merits as there is no definition as to what constitutes “intolerable” behaviour or conduct by an employer.

Pro-Act HR and IR Consultants can provide the necessary guidance to ensure you do not fall in to the constructive dismissal trap.  Similarly we could assist you, should you be facing a claim of constructive dismissal.

Published 19.09.2018

The Value of Induction

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Many employers see the induction of new staff as a waste of valuable time, but it is a critical part of appointing a new employee.  The induction and orientation period is an emotionally charged time for the new recruit and those early experiences create lasting impressions of the organisation, its culture and work ethic.  It also conveys how the Company values its employees.

 

When you invest in new equipment, you spend a lot of time and money ensuring that it is properly installed and set up (usually by an expert).  You draw up project plans and maintenance schedules and you want to be present when it is powered up or operated for the first time.  Why then do we fail to devote the same amount of care and attention to the induction of a new employee?

 

An effective induction programme will ensure that your new recruit becomes a productive member of your team much sooner than if you simply threw them into the workplace and expected them succeed with little or no support.

 

Failure to explain rules and regulations can lead to serious misunderstandings and create unnecessary conflict with colleagues and/or supervisors.  Some new employees become disillusioned and even resign while others could be dismissed for poor performance when an effective induction process might well have ensured that they succeed.  Either way, the absence of an effective induction process usually results in avoidable and hidden costs.

 

To make sure your new employee hits the ground running on his first day:

 

  1. Advise the employee in advance, what documents he needs to bring with him on the first day;  (ID, drivers licence, etc,)
  2. What time he must arrive at the office;
  3. Where he should park;
  4. How he should access the building; and
  5. What the company dress code is.
  6. Prepare an “on-boarding pack” and have it ready and waiting when he arrives. Include information such as (but not limited to);
  • Contract of Employment (if not already provided)
  • Relevant HR & payroll forms
  • Policies & Procedures or Employee handbook – including the Company’s Code of Conduct and Disciplinary & Grievance Procedure
  • Employee Benefits Information, such as leave allocation, retirement funds, medical aid, bonus/incentive schemes, etc.
  • Health & Safety Regulations
  • Information regarding pay dates, performance reviews and any other information that will help ease the employee into their new work environment.

 

Ensure that the employee signs acknowledgement of receipt of important documents, policies & procedures and that he undertakes to familiarise himself with the contents.

 

Research shows that a thorough and well structured induction process creates a positive perception of the organisation, improves employee engagement and retention and ensures operational efficiency.

 

Pro-Act HR and IR Consultants can assist to you with the development and implementation of an effective induction programme, customised to meet the specific needs of your organisation.

Published 29.08.2018

Managing Absenteeism: The Role of the Supervisor

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Absenteeism in general and unscheduled absenteeism in particular has an adverse effect on morale, productivity and profits in any business, but even more so in small and medium enterprises where the staff complement is limited.  It is therefore not surprising that absenteeism is one of the most persistent and challenging problems confronting management on a daily basis.

In most companies, the responsibility for managing absenteeism falls primarily on immediate supervisors as they are often the first or only people who are aware that the employee is absent.

They are also best positioned to understand the circumstances surrounding the employee’s absence and first to notice a potential problem.  Their active involvement in the company’s absenteeism policies and procedures is therefore critical to their overall effectiveness.

To ensure that Supervisors are confident in managing absenteeism, they must enjoy the full support of senior management and the policies and procedures need to be applied consistently across all departments within the organisation.  In addition, supervisors should receive adequate training on their responsibilities in the management of absenteeism, how to conduct effective return to work interviews and the implementation of disciplinary action where appropriate.

The Responsibilities of the Supervisor

  1. Ensure that all employees are aware of the Company’s policies and procedures relating to absence from work.
  2. Be the primary contact person when an employee calls in to advise that he/she will be absent.
  3. Maintain adequate and up-to-date records of all employee absence as well as expected return date and whether medical certification is required or not.
  4. Look for patterns such as absence over month-end, after pay day or before or after weekends, etc. as these are usually an indication of a more complex problem.
  5. Conduct effective post-absence or “return-to-work” interviews.
  6. Implement disciplinary action where this is appropriate.

 

The Return-to-Work Interview

Don’t let any unscheduled absence go by without an interview as it is one of the most effective ways to manage and reduce absenteeism.  This interaction should take place as soon as possible after the employee reports for duty following the absence (not more than one day following the employee’s return).

 

The purpose of the interaction is to:

  • welcome the employee back to work and show support and concern for their wellbeing,
  • establish whether the employee is well enough to resume active duty,
  • complete the necessary paperwork to ensure the absence and the result thereof is accurately recorded,
  • demonstrate management’s commitment towards controlling absenteeism,
  • investigate and explore suspicious circumstances and/or issues the employee may have which may be underlying causes for the absence,
  • act as a deterrent for non-attendance for frivolous reasons.

 

Throughout the process the employee must be aware that this interaction is not merely part of the company’s procedures, but a formal and structured process during which the absence has been noted and that it could potentially have an impact on his/her continued employment.  In the event of an unacceptable pattern or high levels of absenteeism, the employee should be made aware of the company’s disciplinary and incapacity procedures.  However, at no time should this interview be used as a form of punishment.

 

The process should be handled in an objective and consistent manner to ensure that all employees are treated fairly and equally.  Failure to address absenteeism or addressing it inconsistently could result in low morale and low levels of engagement.

 

Be supportive of legitimate personal problems, such as a family crisis, genuine health issues, etc.  Show empathy and offer assistance where appropriate, which may include counselling, training or even paid leave to deal with a personal problem.

 

Where a particular employee’s absenteeism does not improve and/or management is not convinced of the legitimacy of the reasons for their absence, it may be necessary to progress to formal disciplinary action.  It is important that such action is taken timeously and decisively and in accordance with a fair procedure.

Pro-Act HR and IR Consultants can assist you to ensure that the correct procedures are followed.

Published 29.08.2018

Overtime

The Basic Conditions of Employment Act, section 10, 16 & 18 states that the maximum number of normal working time allowed is 45 hours weekly.

Any person that works above the normal hours MUST be compensated and paid overtime.

  • Workers may not work overtime unless by agreement.
  • Workers may not work more than 10 hours overtime in a week and not more than 3 hours in any one day.

OVERTIME CALCULATION

Normal weekday – 1.5 times the employee’s normal hourly rate of pay.
(Bargaining Council overtime calculations vary)

Public Holiday or Sunday – double the employee’s normal hourly pay.
*The Annual Threshold earnings is R 205 433.30

Persons earning over the threshold amount do not have a legal right to demand anything in respect of Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) of the Act with effect from 1 July 2014.

Pro-Act HR and IR Consultants can assist to ensure that the correct procedures are followed.

Published 25.09.2017