When an Employer contemplates dismissing an employee/s for reasons related to operational requirements (retrenchment), an Employer is required to follow the procedure as set out in Section 189 in the Labour Relations Act.
This can be a daunting procedure for both Employers and Employees. As such, the parties often look to concluding an amicable retrenchment agreement rather than going through the consultation process. Or they reach an agreement during the consultation process. This is where the mutual termination agreement becomes necessary.
“I am of the opinion, that in most cases it is preferrable for an employee and an employer to come to an agreement, rather than forced outcomes. ”
Carmen Fourie – Employment Relations Practitioner
At any point during or before the Section 189 procedure an Employer or an Employee could propose the possibility of an agreement. If an agreement is reached – you can use my mutual termination agreement template to protect both the Employee and the Employer.
*Please note I do not recommend voluntary retrenchments or voluntary retrenchment agreements. I cover this in a Youtube video that you can find on my Youtube Channel.
Today I chaired
a hearing that took 2 hours. That is not the usual, but it is also not that
uncommon. If I were to estimate I would say that the average time for a hearing
is between 30mins to an hour. But, here are some factors I consider when it
comes to the time it takes to complete a disciplinary hearing.
Why do we
need to know how long a hearing takes?
A large portion
of the work I do is chairing disciplinary hearings. It is helpful to have some
idea of how long hearings take so that I can schedule other meetings and work
accordingly.
It is helpful
for employers to know how long a hearing takes to be able to schedule their
time around the hearing, as well as have a cost estimate if they are paying the
chairperson an hourly fee. It is also helpful for employers (and when I say employers,
I also mean managers representing the employer) to know how long witnesses (if
there are any) and/or employee representatives will be away from their work to
participate in the hearing.
Therefore, as
much as I prefer not to focus too much on the time it takes to complete a
hearing – there are practical and cost considerations.
How much time
do I set aside for a hearing?
There isn’t a straightforward
answer to this. It depends on the client, the disciplinary offence, and other
factors around the disciplinary hearing. I’ll provide the answer but before I
do, here is something important I would like to share:
I used to chair
hearings where my diary was scheduled for me, and I simply showed up to the
hearing. In my experience this often resulted in major discrepancies between
the time allotted and the time the hearing takes, or it resulted in immense
pressure to conduct a hearing faster than I would like to conduct it. I can
complete a hearing very quickly, but if the desired outcome is speed, it will
come at a cost. The cost wouldn’t be to the procedural fairness since the
requirements for procedural fairness are fairly easy to comply with. In my experience
it comes at the cost of empathetic and effective employment relations.
I don’t measure
my success as a chairperson by how many people refer their cases to the CCMA,
but it is a tangible metric to depict the point I am making and therefore I am
going to use it.
When I used to
work under time pressure, and I was expected to complete several hearings a day
in short periods of time – I could reasonably assume that several of those
individuals may opt to challenge the outcome and/or the procedure at the CCMA.
This was considered normal.
When I started Fourie
Employment Relations, for many reasons, I decided that I would not schedule a
hearing in a way that creates a time pressure for me. I knew this meant I would
schedule less work on any day and that it would mean less income for me. I was
willing to make less money to ensure that I could give my full attention to the
disciplinary hearing and not clock watch. That I could allow time and slow
things down when emotions became incredibly heightened in hearings (as they
often do) and that I could slow down to ensure that at every step of the way I
could give the time necessary to ensure there were no misunderstandings and to
clearly take the employee sitting there with me as I share how I interpret the
information presented to me, the factors I consider and exactly how and why I
come to the decision I do.
And I would like
to clarify here – I value efficiency. I do not unnecessarily slow down a
hearing and when I conduct a hearing I do so efficiently. Because I have done
so many hearings, I can easily tell what information is or isn’t relevant and I
can guide the hearing to stay on track and on point. I would like to stress
here that a hearing shouldn’t be unnecessarily long.
That all being
said when I schedule a hearing, I generally put aside 2 hours, even though 90%
of the hearings I do take between 30 mins to an hour, with a large portion of
the 90% taking closer to 30 mins than an hour. This means that most of the time
I have set aside more time for a hearing than is needed.
But what I have
experienced from doing this and why I continue to do this is – If I set aside 2
hours I am never rushed in the hearing. If I set aside 2 hours, I can
comfortably allow time for heightened emotions, disruptive conflict and to
ensure clarity throughout the hearing. I can allow time for unexpected complexities
in the case without needing to reschedule or disrupt the rest of my day. And
while the extra time may only be needed in 10% of those cases. What I have
experienced from my decision to schedule my hearings this way is that I cannot
remember the last time an employee challenged an outcome or procedural fairness
of a hearing I chaired. I have not had a single case referred to the CCMA in
over a year and I have chaired many hearings.
It is my belief
that the reason the cases are not going to the CCMA is because I am taking the
time to clearly take the employee along with me as I interpret the information,
I calmly and empathetically allow for their heighted emotions (sitting in a
hearing can be very scary and their jobs are at stake – their emotions are valid),
and I am fully present with their case. By the time I give an outcome in a
hearing there are no surprises. The employee has clearly understood how every
bit of information discussed impacted that decision.
And just like I
think there is danger in using time as a metric of a good hearing – I do not
determine my success as a practitioner based on how many cases go to the CCMA,
because then I run the risk of issuing lighter sanctions for fear of CCMA
cases. The only reason I am sharing what I have experienced in regard to the
CCMA case referrals is because it is a quantifiable way to show the value of truly
effective and empathetic employment relations.
All our choices
have consequences. I believe that when hearings are chaired under time pressure
and without empathy for the individuals involved – it will result in more
resources wasted in the medium to long term. So – you might save time today,
but you will probably spend more time and money on another day.
Concluding
remarks
Having said all
that – the other reason I schedule my own hearings is because I can often tell
based on experience how long or short a hearing may be, and some offences are
inherently more complicated than others. So while I say that I generally
schedule 2 hours, there are times where I will set aside less or more time. Discrepancies
in time allotted and the time a hearing takes, in my opinion, result often when
the hearing time is scheduled by someone who does not have experience with
hearings.
I am currently working on a Youtube video titled: Mistakes I made as a chairperson – subscribe to my Youtube channel to avoid missing a video.
I am also currently working on a workshop for leaders on how to chair disciplinary hearings, because I believe many hearings can be done internally if the leaders have the right resources (checklists, forms, notifications, and other documents), as well as a bit of guidance and skill building. I believe that only some hearings should be chaired by a professional. Follow me on social media to see upcoming workshops or contact me if you want a specific workshop for your leaders.
I also have a disciplinary bundle available that includes a notice to attend a disciplinary inquiry template, suspension template and warning templates.
Information about the documents for sale:
The sale of the documents goes towards hosting this website and the Youtube video editor. Having an editor allows me to put out free information while still offering consulting services. Please consider purchasing a template if you believe it will be useful.
The documents are drafted with the South African Employment Relationship and Legislation in mind. They are priced in dollars to facilitate the document being available immediately after payment has been made. Payment is made through a secure Paypal portal and this portal accepts South African bank accounts/cards. Once payment has gone through, the document will be available for download. If you would prefer another payment method, please email admin@employmentrelations.co.za.
Is the suspension before a disciplinary hearing paid?
Yes, if you are suspending an employee before a disciplinary hearing, the suspension is with pay.
“But they stole from the business” or “But they assaulted someone”
I completely understand the frustration that comes with suspending an employee with pay before a disciplinary hearing, however, the purpose of a disciplinary hearing is to allow an employee a fair opportunity to state their case and present their side.
It would be unfair to assume, even with very strong face value evidence, that an employee is guilty before the disciplinary hearing. It is for this reason that the suspension is paid.
Why does it matter how an employee is suspended?
‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(c) the unfair suspension of an employee or any other unfair disciplinary action short of a dismissal in respect of an employee
Extract from the Labour Relations Act Section 186(2)
It matters for two reasons. Firstly, it is a legislative requirement to fairly suspend an employee and an unfair suspension is classified as an unfair labour practice. The second reason is that how employees are treated matters, even if that employee is exiting the business. Other employees and people witness the treatment and this influences their perception of the employer/management. This perception if tainted can lead to costly counterproductive behaviours that could be avoided.
My recommendations when it comes to suspending an employee before a disciplinary inquiry:
Only suspend an employee is you really believe it is necessary or truly believe that allowing them to continue to work would be a potential risk to the business or other people.
You do not have to suspend an employee before all hearings for dismissible offences.
Give an employee an opportunity to state why they should not be suspended before suspending them. Seriously consider the reasons provided by the employee.
Speak to the employee in a calm and respectful manner (how a person is treated matters)
Clearly explain the reason for the suspension and remind the employee that they will be given a fair opportunity to state their case at the disciplinary inquiry.
Try to limit the number of days the employee is suspended as far as possible and with consideration to still ensuring they have sufficient time to prepare for the disciplinary inquiry.
The sale of the documents goes towards hosting this website and the Youtube video editor. Having an editor allows me to put out free information while still offering consulting services. Please consider purchasing a template if you believe it will be useful.
The documents are drafted with the South African Employment Relationship and Legislation in mind. They are priced in dollars to facilitate the document being available immediately after payment has been made. Payment is made through a secure Paypal portal and this portal accepts South African bank accounts/cards. Once payment has gone through, the document will be available for download. If you would prefer another payment method, please email admin@employmentrelations.co.za.
Information about my services
I wish to provide affordable or free employment relations information to equip employers and employees to handle most situations on their own, but I also believe having a strong foundation of documentation in place is helpful and it is also necessary in some situations to sound board with a professional or have a professional facilitate the procedure.
If you would like me to draft specific employment relations documentation or would like an online consultation (including chairing hearings and facilitation of other employment relations procedures) you can contact me via email: admin@employmentrelations.co.za
In this week’s video I discuss all the various payments an employee is entitled to when they are retrenched. I start by discussing payments due when the employment relationship terminates (through the contract ending, resignation or dismissal), then payments due specifically when an employee is dismissed and then payments due when an employee is retrenched. This way you are given information relating to other ways the employment relationship terminates and what is paid out on termination.
In addition to the above I discuss other relevant information like how to calculate annual leave that is owed and when annual leave is paid out, when employees are not entitled to severance pay, when notice of termination starts for retrenched employees, how to calculate the daily rate for an employee paid on a monthly basis in accordance with the Basic Conditions of Employment Act and more.
My Section 189(3) notice of contemplated retrenchment letter can be found HERE if you would like to use it. It is my most downloaded document to date with great feedback from employers and managers who have used it.
If you would like further information on how to complete a Section 189(3) letter I have a video about that:
A reminder that your engagement with the videos and available documents is how I can continue to publish free employment relations information. Please consider subscribing to my Youtube Channel.
What does it mean if an employee earns below or above the earnings threshold?
In the latest Employment Relations video, I share the new earnings threshold for the labour legislation of South Africa, as well as what it means to earn above or below the threshold.
In the video I cover all provisions from the Basic Conditions of Employment Act, the Labour Relations Act and the Employment Equity Act that are only applicable to those who earn below the threshold. Throughout the video I share tips and recommendations for Employers & Employees.
If you need a template for a notice to attend a disciplinary hearing (also known as a disciplinary inquiry or disciplinary enquiry), you can, for a small fee, purchase it HERE.
Please note: The price is in dollars to facilitate the automatic payment through Paypal to ensure that the document is available immediately after payment has gone through, but the document has been drafted with SOUTH AFRICAN labour relations in mind.
This document has been uploaded in anticipation of the latest video that will go live on Monday, 28 February 2022 – A video all about disciplinary hearing notices. This video may be useful for employers, managers, employee representatives and employees.
To ensure you don’t miss a video – remember to subscribe to my Youtube channel. This also helps me to continue to upload free employment relations information.
If you would like me to chair your disciplinary hearing please contact admin@employmentrelations.co.za
Employers and managers are often faced with this question – what is the appropriate disciplinary action to take given that a particular transgression has occurred?
Often managers rely on labour relations consultants to advise them (which is a great resource when needed), but what if managers could feel more comfortable to manage the day to day disciplinary action without the assistance of an employment relations practitioner?
My goal is to equip managers and employers with the knowledge and resources to be able to implement fair and effective labour relations without it being a major business expense. To equip managers and employers to only outsource the exceptional cases, and to feel empowered to handle the day-to-day matters.
In the video below I discuss one way that employers and managers can improve the effectiveness and fairness of disciplinary action in the workplace. This method has been tried and tested by several of my clients and so far the feedback is that it works!
For a small fee you can purchase my disciplinary guide – the use of it (I believe) will save employers time and money.
Please note the document’s price is in dollars, but it is drafted with South African employers & managers in mind. The currency is to facilitate the automatic payment system so that the document is available immediately after payment.
Carmen Fourie,
Employment Relations Practitioner & Director of Fourie Employment Relations
In the latest video I provide 8 important tips for issuing warnings in the workplace. This video is for managers, supervisors, team leaders and employers to feel more comfortable with implementing fair, effective and efficient corrective measures in the workplace. The video comes with many practical examples.
*Please note that the templates are priced in dollars, but they are made with SOUTH AFRICAN employment relations in mind. The price is in dollars to facilitate automatic payment. You will be able to pay with South African bank cards and the documents will be available immediately after payment has gone through.
If you would like to equip yourself or your managers even more, you can purchase my Disciplinary Guide for Managers & Employers. It includes 65 disciplinary offences and my recommended disciplinary action. As a bonus I included a quick reference guide for poor work performance, medical incapacity and retrenchment.
A video filled with details about implementing a disciplinary guide, the benefits and when to have a disciplinary hearing will go live on Friday, 25 February 2022. Subscribe to my channel to avoid missing out on lots of free employment relations content.
Watch the video on tips for issuing warnings in the workplace here:
I hope you find this information valuable – I would love to hear your feedback.
Carmen Fourie, Employment Relations Practitioner & Director of Fourie Employment Relations.
To book an online consultation with me kindly email admin@employmentrelations.co.za.
There are quite a few types of leave in South Africa: Annual leave, sick leave, family responsibility leave (sometimes referred to compassionate leave), maternity leave, parental leave, adoption leave, commissioning parental leave and more. Of the types of leave the one I get the most questions about is – sick leave.
Therefore, my goal with today’s post is to cover all the important information about sick leave. This post is likely to be useful for employers, managers, superiors, employee representatives / shop stewards / trade union representatives, payroll consultations, bookkeepers and employees.
Disclaimer: This post only relates to sick leave as it is detailed in the Basic Conditions of Employment Act (“the Act”). If your business falls under a sectoral determination or bargaining council main agreement (especially those with sick leave funds), please supplement the information provided in this blog with the information contained in your sectoral determination or bargaining council main agreement.
Let’s get into how sick leave works in South Africa.
How many days paid sick leave does an employee get in the first 6 months of employment?
They get 1 day for every 26 days worked.
Note: while annual leave can be changed (by agreement) to 1 hour for every 17 hours worked, the Act does not have a provision that allows sick leave to be changed to 1 hour for every 26 hours worked and therefore I would recommend leaving it as 1 day for every 26 days worked.
How many days paid sick leave does an employee get (after completing their first 6 months of employment)?
An employee gets the number of days they would ordinarily work in a 6-week period for every sick leave cycle.
Therefore, an employee who works 5 days a week is entitled to 30 paid sick leave days per sick leave cycle.
An employee who works 6 days a week is entitled to 36 paid sick leave days per sick leave cycle.
Note: Any paid sick leave taken during the first 6 months of employment is deducted from the total sick leave entitlement for the sick leave cycle. The first 6 months of employment is included in the first sick leave cycle in terms of calculating the time frame.
How long is a sick leave cycle?
36 months (3 years).
How to I calculate paid sick leave for an employee whose working days vary?
You take the average of the preceding 13 weeks.
If the employee has not worked for 13 weeks, then you use 1 day for every 26 days worked.
How much do I pay an employee for sick leave?
You pay them their ordinary daily wage for each sick leave day taken.
If they pay varies take the average of the preceding 13 weeks or if they have worked less than 13 weeks, take the average they have earned in the time they have been working.
How do I calculate a daily wage for employees who earn monthly salaries?
Take the monthly salary divided by 4.33. This will give you their weekly remuneration. Divide that by the number of days they ordinary work in a week to get the daily wage.
Example: An employee earns R20 000 per month. Their weekly remuneration is R20 000 / 4.33 = R4 618.94. If they work five days a week, their daily remuneration is R4 618.94 / 5 = R923.79.
Can I pay an employee less than their ordinary daily wage for sick leave?
Yes, but only by agreement.
How this works:
An employer and an employee can agree to reduce the pay for sick leave, but then the number of sick leave days needs to increase with the same proportion.
The payment cannot be less than 75% of the employee’s ordinary remuneration.
Found in Section 22(6) of the Basic Conditions.
This can only be implemented by agreement. If you would like to use my sick leave agreement template, you can find that HERE for a small fee.
Note: The template prices are in dollars, because this allows them to be available immediately and automatically after payment has been received. You are still able to make the purchase with your South African bank card.Once payment has been made your document will be available for download by clicking on the light blue writing or going to the Purchase History Page.
When must an employee produce a medical certificate to be entitled to paid sick leave?
If their absence from work extends two consecutive days (3 days or more) or if they are absent on more than 2 occasions in an 8-week period. I will elaborate on this by answering more questions.
Quick pause to let you know I made a video on paid sick leave that extensively covers the requirements for medical certificates and my recommendations if you would like to watch that. It helps me to continue to make videos and provide free information if you watch my videos, subscribe to my channel and like or comment on my videos.
What happens if I (the employer) want an employee to bring a sick note for every day they are absent?
You may have a rule or policy in your company that states that you require a medical certificate to be produced for each day the employee is absent due to illness or injury, however:
The employee must know before that you expect this of them.
The employee is still entitled to be paid for that day even if they do not produce a medical certificate if their absence does not extend 2 consecutive days or is not more than 2 times in an 8-week period.
If they fail to produce a medical certificate and you have a clear policy on what is expected of them, you may issue them with a warning for unauthorised absence (after allowing them a fair opportunity to state their case) or any other appropriate disciplinary/corrective action.
I recommend weighing up the business requirements before implementing this policy, because there are times when individuals need to rest to recover and they may not necessarily be so ill that they would ordinary go to a doctor.
If I don’t require a medical certificate every day, how do I stop employees from abusing their sick leave?
An employee is required to produce a medical certificate if they are absent on more than 2 occasions in an 8 week period. Therefore, if they are regularly absent due to illness, it is likely that it will be more than 2 times in an 8 week period.
Alternatively, if an employee is absent on a regular basis due to illness or injury to the extent that it is causing disruptions in the workplace, an employer may investigate whether the employee is fit for work (by conducting an incapacity investigation). If you would like me to explain how an incapacity investigation is done fairly let me know in the comments below.
How do I keep accurate records of leave taken?
I recommend making use of my leave form. You can find my leave form HERE for a small fee.
Do I give an employee sick leave if they were injured at work?
No, do not use sick leave for workplace injuries or diseases. Follow the workplace injury or disease procedure and payment is done in accordance with COIDA (Compensation for Occupational Injuries and Diseases Act).
Do I have to accept clinic notes as medical certificates?
It depends who signed and issued the clinic note. If it was a professional who is registered with a council (such as the Health Professions council of South Africa) and who is allowed to diagnose and treat, then yes.
If the clinic note is an attendance note, then no.
I would recommend watching my video for more information on medical certificates.
You can also use my sick leave policy template and adapt it to your business to ensure employees know what will and will not be accepted as valid proof of sick leave.
Concluding remarks
I will cover altered medical certificates and fraudulent medical certificates in another post, but for now, you can get that information in my video, and I recommend my sick leave policy template that covers what is expected of employees and what consequences they could face should they produce certificates that are not valid.
Comment down below if you have any other questions about sick leave and once I have a few questions to address I will make another post covering all the information that is not covered in this post.
Disclaimer: I cannot cover all the scenarios in this post, therefore this piece is for educational purposes only. Book a consultation with a professional if you need to.