Human Resource Retainers

Why should businesses have HR and IR Retainers?

Numerous small to medium sized enterprises based in Cape Town, do not have their own HR resource to manage the people aspect of the business. Be this because they are start up businesses without the funding for a permanent resource, or possibly because the number of Employees does not warrant a dedicated resource. 

Labour aspects however can be tricky and Human resource matters are bound to creep up, this we know to be inevitable.  Often, Cape Town Labour Consultants are contacted by Management, who have been placed in charge of managing the human resources, as an additional task to the core function of which they were employed. This is when outsourcing the HR function could add value to the business. 

Cape Town Labour Consultants provides retainer services; to assist Management in handling all HR/people related matters efficiently. Our experienced Consultants are available to our retainer Clients to answer any and all people related questions, to draft employment contracts, to provide the necessary Company policies to the business, to advise on disciplinary matters, unauthorized absence, sick leave absences etc. 

Cape Town Labour Consultants has numerous retainer options available tailor made to suite the business requirements. From a support retainer as a help desk to answer all and any people management questions that may crop up, telephonically, to the platinum retainer of uncapped hours made available to your business on a monthly basis, including all onsite visits. 

We believe that providing our clients with these retainer services, provides not only peace of mind to management that HR related matters are being dealt with in accordance to labour legislation, but the retainers also assist in ensuring  the Company’s Management focus on the core functions of the business, leaving the HR related matters to the relevant professionals. 

Contact us today to enquire about our retainer rates 

Suspensions in the workplace

How do you deal with suspending an employee?

Often Employers immediately suspend an Employee following an alleged transgression and pending the outcome of a disciplinary hearing. These suspensions are more often than not done as an immediate emotional response which could land the employer in hot water. 

Unfairly suspending an Employee is stipulated in the Labour Relations Act as an Unfair Labour Practice. Specific boxes need to be ticked when it comes to suspending an Employee. The suspension clause should be included on the notification of disciplinary hearing, the period of suspension needs to be on full pay and most importantly, the Employee needs to be notified of their right to contest the suspension. 

Failure to do this could result in the suspension being deemed unfair. Furthermore, there needs to be a sound reason for suspension. Suspending an employee for late coming or unauthorised absence may be more challenging to defend as opposed to suspending an employee for transgressions such as dishonesty, fraud or assault. The Employer is legally obligated to protect their employees, so failing to suspend an employee pending charges and an investigation into sexual harassment for example may open a whole new can of worms. 

The Employer will need to have cause for concern when implementing a suspension, such as intimidation of witnesses, tampering with evidence, transgressing again etc. It is not a decision to take lightly, especially when the aggravating circumstances in the disciplinary hearing will present a break in trust in the employment relationship.

If an Employer will be pushing for a summary dismissal at the hearing, due to a lack of trust and subsequent irreparable employment relationship, but they failed to suspend the employee and allowed the employee to work during the hearing investigation, this too may result in repercussions for the business, sighting contradictory behaviour on behalf of the Employer.

Knowing the correct action to take is key to ensure that you are abiding by the labours, and often decisions to be made can be tricking. That is why you should contact Cape Town Labour Consultants to assist you with human resource matters. 

We are here to help, Contact Us Today!

Employees & Misconduct

The golden rule: “If it’s not documented... it didn’t happen”.

In the workplace, there are bound to be ups and downs, tense situations, mistakes, negligence and difficult conversations. When a situation such as this, presents itself, the employer has an obligation to deal with the matter accordingly, enabling all parties to move forward with a clearer understanding with regards to what is required in the future...

Often employers find themselves in a situation where an employee has made numerous errors or mistakes or behaved inappropriately on more than one occasion, it is at this point that I receive the phone call, from an infuriated manager who “just can’t take it anymore!” and “I want them gone!”.

This of course, places the employer in a very vulnerable position, let me explain why...

The Code of Good Practice explains that the Company or employer has an obligation when dealing with misbehaving employees, to give clear feedback to that employee, explaining what it is they did that was incorrect and how they should manage similar situations in the future. The reason for this is to provide the employee with an opportunity to improve going forward and in essence giving them another chance to do better.... strike 1... strike 2.... strike 3....

It is for this reason that a lot of emphasis is placed on disciplinary record, when deciding whether or not to dismiss an employee. For instance, if an employee has been insolent, rude, impolite, disrespectful to a manager once, the chance of being dismissed is far less than if the person had received a verbal warning for a first offence, a written warning for a second offence and a final written for a third offence. Once an employee is on a final written warning it shows that the Company has given this employee ample opportunities to improve, knowing perfectly well that the Company was viewing his or her transgressions in a serious light. It shows that the Company is dismissing this employee as all other avenues have been exhausted. Don’t get me wrong, there are most certainly offences that are dismissible, even as a once off isolated incident, examples of these include, assault, dishonesty etc, aspects that result in an irrevocably damaged employment relationship and a break in trust between employer and employee, but even these dismissals should take into consideration length of service and disciplinary record.

So remember, to ALWAYS document the warning, no matter how trivial it may seem at the time, there may be a situation that presents itself in the near future, and instead of it being a matter of “the straw that broke the camels back...” you will be prepared, having documented evidence that you have addressed the exact issue with the employee on more than one occasion. There is also no need to act in a purely punitive manner, a simple follow up e-mail following a discussion, will take two minutes from your busy day, but may end up saving the Company from a pricy CCMA arbitration award a few weeks down the line...

Remember, when addressing concerns with your misbehaving people, “If it’s not documented... it didn’t happen”.

Compiled by Nikki Auret 

www.capetownlabourconsultants.co.za

Why use Cape Town Labour Consultants?

Why use Cape Town Labour Consultants?

Cape Town Labour Consultants assist small to medium sized enterprises in labour matters, ensuring that your organisation is safeguarded from risk as far as reasonably possible. South African labour laws are tricky and pulling in a Labour Consultant who specialises in such matters on a daily basis can not only put your mind at ease when it comes to repercussions but can ‘hand hold’ managers through these processes and assist in ensuring these matters are handled legally and in line with legislation and in doing so, empowering your managers.

CPTLC can assist your business with any and all HR and IR matters but specialise in the following;
1. Chairing disciplinary hearings
2. Dismissals as a result of operational requirements (aka retrenchments)
3. CCMA Cases

Chairing disciplinary hearings

In order to hold a procedurally fair disciplinary hearing, a neutral 3rd party chairperson is preferred to ensure an objective outcome. Our consultants will come into the hearing and first of all explain the procedure that will follow so that all parties are comfortable and aware of what to expect. The rights of the employer as well as that of the employee will be explained prior to commencement of the enquiry.  The Consultant will listen to both sides of the story, giving opportunity to be heard, to call in any witnesses and allow for cross questioning. Closing statements as well as mitigating and aggravating circumstances will be taken into consideration and a full findings and sanctions report will be submitted as a recommendation to the employer. The nice thing about using Cape Town Labour Consultants is that the outcomes are run passed the CCMA with reference number prior to submission as well as the fact that the decisions made are based on recent case law substantiating the reasoning. All of the above, allowing for a peaceful night sleep knowing that the employees rights were respected and the Company safeguarded from risk.

Dismissals as a result of operational requirements (aka retrenchments)

Unprofitable businesses take strategic decisions to reduce costs and more often than not these costs include staff costs, resulting in retrenchments. However, a failure to follow the correct procedure can have the opposite effect to that of cost saving. Unfairly retrenching employees can land the organisation in hot water at the CCMA resulting in compensating those employees for unlawful terminations. The key here is to ensure the steps are correctly followed as laid out in the Labour Relations Act. Employees are to be consulted with regarding operational requirements dismissals (retrenchments), selection methods discussed, timing of dismissal, number of employees affected etc. Calling in a consultant from Cape Town Labour Consultants, who will not only provide you with all the necessary paperwork but will also handle the process from the beginning to the very end. Ensuring that the employees are treated with dignity and receive what they are legally entitled to as well as assist the Company in managing the process in such a way that safeguards the enterprise from repercussions. Retrenchments are never a pleasant situation to be faced with, but having the right professional with the right skills and experience can make the process smooth and bearable ensuring that all parties involved are fully aware of their rights at all times.

CCMA Cases 

Although “prevention is always better than cure” and the better course of action would be to involve our experienced labour consultants in disputes earlier rather than later, to avoid unpleasant situations, CPTLC does assist Companies in the compilation of arbitration documents. These documents are put together to substantiate the Company’s case when it comes to the reasoning of their decisions. Packed with legislation relating to dismissals as well as case law implicating related incidents and their outcomes.

So call Cape Town Labour Consultants today and make your problems ours...

It’s a small price to pay for peace of mind!

082 979 0684
021 554 4833

Retrenchments: Fair or Unfair...?

The golden rule..... Consult! Consult! Consult!

A retrenchment will immediately be deemed unfair, should it be found that the decision had been
made by the Employer prior to a consultation with the employees affected. Regardless of the reason
for operational requirement dismissals, be it for economic, structural or technical reasons, a failure
to consult and engage with the employees will put the Company at great risk.

Section 189 of the Labour Relations Act sets out the A-J rules to follow in the event of
retrenchments, but if the employees were not given an opportunity to give suggestions as
alternatives to retrenchment, the entire procedure including any substantively fair reasons for the
required dismissal, is null void .

Although one of the 7 habits of highly effective people is to start any project “with the end in
mind”.... applying this during a retrenchment procedure can be detrimental to any business. Often
what happens during retrenchments is Companies start the procedure, knowing exactly what will
result, the number of employees that will be affected, who they will be, when will be their last
working day and the amount of severance pay they will receive. Handling operational requirement
dismissals in this manner is a one way ticket to the CCMA.... and it won’t be a cheap ride!

The whole reason for holding the “meaningful consultation”with the affected staff is to gather their
input, ideas and alternatives and consider these in making the final decisions.

Ultimately, the employer has the final say, (after disclosure of all relevant information), regarding
the way forward of the affected departments or business units but only once they have consulted
with their people.

After all, nobody knows the ins and outs quite like the employees in those roles and they just might
have all the answers.....

Compiled by Nikki Emmenes

Disciplinary Hearings

There are numerous misconceptions regarding workplace disciplinary hearings. Some managers and employers follow such stringent processes during an enquiry, placing more than necessary precautions in place from fear of running a procedurally incorrect enquiry. Managers and HR practitioners alike, go to extraordinary lengths to ensure the “alleged offender” receives exactly 48 hours written notification to prepare prior the hearing. They place much weight on the chairperson, insisting that they are a neutral third party; reading the employee their rights to representation by a fellow employee or union shop steward, their right to interpretation, the calling of witnesses, cross examining etc..  Labour courts however, have recently been placing more emphasis on whether or not the employee was given the opportunity “to be heard” as opposed to following a legalistic process by the book and in doing so making the employee feel like a criminal.

A workplace enquiry should be a process where the employee and a Company representative address a situation or incident and explore “both sides of the story” and in doing so come to a conclusion regarding the way forward. Managers and HR practitioners tend run the process as if in a court of law, resorting to terminology such as “alleged allegations”, “offender”, “charges against the employee”, opening and closing statements”, guilty or “innocent” etc..

This kind of treatment understandably can leave the employee with a bitter taste in their mouth, damaging the working relationship and creating an atmosphere of animosity. In criminal law, in order to be prosecuted an individual is to be found guilty “beyond reasonable doubt”. In the workplace on the other hand, an employee can be deemed guilty of the transgression on a “balance of probabilities”, so in other words, where there is smoke... there is fire.

The reason Companies tend to follow such stringent processes is because of the fear of being taken to the CCMA for unfair treatment towards an employee, as a result of a procedurally or substantively unfair hearing, but as long as you give the employee an opportunity "to be heard" and you are able to back your decision up with reasonable documentation, there shouldn’t be any concern of repercussions. And where in a court of law, an outcome of a trial can result in jail time... an outcome in a workplace disciplinary enquiry can be anything from a verbal warning to a parting of ways in the most extreme of circumstances. Boring by comparison...? All the more reason to stop treating employees like criminals; give them an opportunity “to be heard” and make a decision regarding the way forward.

Compiled by Nikki Emmenes

What is the Cosatu strike all about?

Cosatu trade union federation will strike nationally on Wednesday the 7th of March 2012 in protest over the proposed implementation of the Gauteng tolling system as well as against labour brokers. 100 000 protestors are expected to gather in 32 places countrywide in the SA’s largest mass demonstration to date. This protest is the refusal to work for the purpose of defending or promoting the socioeconomic interests of workers.

Background

Why do employers use labour brokers?

Labour brokers are used by employers in instances such as seasonal changes in product demand, staff absences, the requirement of employees with scarce skills for a short period of time etc and because of this increased demand for workplace flexibility the labour broker industry exists. Employers obviously benefit from the use of labour brokers in that they are rid of the risk, admin and paperwork that comes with employing and paying individuals as well as rigid labour laws involved in getting rid of employees who are working but whose services are no longer required. Even the economy benefits from this brokerage industry in that labour brokers are incentivised to train workers in a pool of skills and in doing so multi skilling these people making them more employable.

Labour brokers or TES’s (Temporary Employment Services)

TES’s lack the stability and resources in the workplace to unionise, therefore once again denying employees of their rights. Often broker/employee agreements contain clauses stating that termination at the end of employment shall not be construed as retrenchment and therefore denying the employees their entitlement to severance pay as per the Basic Conditions of Employment.

Why does COSATU want labour broking banned?

COSATU compares labour broking to that of ‘modern-day-slavery’ and feels that the casualisation of labour by labour brokers denies employees of their constitutional rights as laid out in the Labour Relations Act and Basic Conditions of Employment Act.

The facts…
Nedlac has confirmed that there is a deadlock and this socio-economic strike will commence at 00h00 and end at 24h00 on 7 March 2012

Although to some extent, labour brokers deny employees of certain rights, the outright ban of the labour broker industry will close the doors of many businesses and will ultimately result in the loss of many, many more jobs.  You decide.

Compiled by Nikki Emmenes
www.capetownlabourconsultants.co.za