The Code of Good Practice on the Prevention and Elimination of Harassment and Violence in the Workplace (the “Code”) in terms of the Employment Equity Act was implemented on 18 March 2022.
This Code repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. The Code has gone wider than its predecessor by introducing new forms of harassment and violence in the workplace. Four main forms of harassment include: sexual harassment, racial and ethnic harassment; harassment on account of whistleblowing and bullying.
These forms of harassment are widely defined in the Code. For example, cyber or online harassment or bullying is now an extended form of harassment and this is particularly important due to the change in work practices and the use of electronic communications.
The Code encourages all employers to have a Harassment Policy. This is particularly important since an employer may be found to be vicariously liable for damages caused by one of its employees in harassing another employee. Although not obligatory, certainly advisable.
An employer should first conduct a risk assessment before putting in place such a Policy. Such risk assessment would include inter alia: assessing current policies addressing harassment and violence in the workplace, identifying risks where employees could be harassed, identifying instances where harassment has occurred and how the Company dealt with it and identifying measures to mitigate such risk.
It is advisable to get legal experts to assist in conducting your risk assessment and drafting a policy in line with the assessment and legislation.
Please feel free to contact one of our directors at solomonholmes for more information.
The outcome of a disciplinary hearing will not always be favourable to an employer. We are often faced with the question of whether, in such circumstances, the employer is permitted to interfere with the sanction imposed by the chairperson of a disciplinary enquiry only on the basis that the employer is not satisfied with the outcome.
The Labour Appeal Court has, in the decision of BMW SA v Van der Walt and subsequently, in the decision of Anglo American Platinum (Ltd) v Edwin Andriaan Beyers, confirmed the principle that an employer may interfere with the sanction imposed by a disciplinary enquiry chairperson in certain circumstances. Whether such interference is justified will be determined with reference to considerations of fairness – which apply to both the employer and the employee, and whether such interference is informed by exceptional circumstances.
The sanction imposed by a disciplinary enquiry chairperson may be revisited even when the employer’s disciplinary code does not specifically make provision for an internal review process.
In determining whether it is fair to interfere with a chairperson’s sanction, the interests of both the employee and the employer must be considered, and the interests of the employer in reviewing the sanction imposed by the disciplinary enquiry chairperson must outweigh those of the employee.
Fairness is determined by the facts of each case; there is no defined set of factors that must be considered to determine fairness in the circumstances.
As per the case of Van Rensburg v Rustenburg Base Metal Refineries, an employer should only consider reviewing the sanction imposed by the disciplinary enquiry chairperson where the following is evident:
- The facts available to the employer at the disciplinary hearing did not sufficiently illustrate the gravity of the employee’s conduct;
- The decision, based on the facts before the chairperson, was so shocking that it shows that there was a sign of bias, bad faith or a failure by the chairperson to apply his or her mind; or
- The employer’s disciplinary policy has been disregarded.
Even in instances where an employer’s disciplinary code does not make provision for an internal review, an employer would be entitled to review the sanction imposed by the disciplinary enquiry chairperson provided that there are exceptional circumstances which warrant the interference and it is fair to do so. Given the gravity of the consequences of incorrectly interfering with a disciplinary enquiry chairperson’s decision, we highly recommend that you get seek legal advice before proceeding to do so.
There is currently no statute which governs when employees must retire, however, it is well established law that there are only two instances when an employee may be required to retire. Firstly, where the retirement age has been agreed on and secondly, when employees have reached the normal retirement age.
According to BusinessTech, a retirement survey conducted by Just SA in March 2022 revealed that South Africans over 50 are not confident that they have saved enough to retire. According to the article, only two in five South Africans believe that their income will cover their monthly expenses should they live to be 100 years old.
What does this mean for employers?
Where employees have not saved enough, or at all, for their retirement, they are undoubtedly under pressure to work as long as possible. This may result in employers receiving pushback from employees when retired.
An example of such pushback is the recent Labour Court decision of Solidarity on behalf of Viljoen and Others, where the employees, although accepting that the normal retirement age as per the applicable pension fund rules was 60, attempted to argue that because the company allowed them to work beyond the normal retirement age it was no longer applicable and the employer was obliged to consult them and agree on a new retirement age.
In determining the impact of allowing employees to work beyond the normal retirement age, the Judge referred to the matter of Bank v Finkelstein t/a Finkelstein and Associates where the Court held that ‘…where an employee works beyond an agreed or normal retirement age. The harsh reality is that such an employee is in effect working on ‘borrowed time’. The employer, unless it can be proven that the employer specifically waived its rights to apply the retirement age, would remain entitled to at any point after the employee had attained the normal or agreed retirement age place the employee on retirement.”
In the Solidarity case, the Labour Court ultimately found that employees cannot blow hot and cold. In other words, the employees cannot agree that a normal retirement age exists, and also allege that the employer had not taken any steps to agree on a new retirement age. The Court held that that these two scenarios are mutually exclusive and concluded that if there is no agreement on the retirement date when an employee reaches the normal retirement age, the employer is entitled at any time thereafter to enforce the normal retirement age. In circumstances where the employees conceded that 60 was the normal retirement age, the Labour Court found that the employee had not been unfairly dismissed.
In this matter, because they conceded that there was a normal retirement age the Court was not required to determine the issue. It would have been interesting had the employees not conceded that a ‘normal retirement age’ of 60 was applicable.
An employee who successfully proves that they ought not to have retired and that they were discriminated against based on their age, could be awarded up to 24 months’ compensation. It is therefore imperative that employers adequately deal with the issue of retirement within the workplace whether it be by virtue of a clause in employees’ contracts of employment or through a retirement policy, furthermore, that the employer follow the correct steps should the employer require an employee to work beyond their retirement age.
The Labour Court in the recent judgment of Denel SOC Ltd v NUMSA obo Peterson & Another sought to provide guidance on an alternative approach when faced with the enforcement and stay of a default arbitration award pending an application to rescind that award before the CCMA/Bargaining Council.
Having the urgent roll clogged by many identical applications seeking to stay the enforcement of arbitration awards, Justice Moshoana expressed an interesting and valuable analysis and view on this issue.
In the matter before the CCMA, Denel had not attended the arbitration, which continued in their absence and resulted in a default arbitration award in Peterson’s favour being issued. Peterson, armed with the certified default arbitration award had instructed the sheriff to attach goods belonging to Denel in order to satisfy the monetary portion of the default arbitration award. Denel then launched an urgent application to the Labour Court to stay the enforcement of the arbitration award pending an application before the CCMA to rescind it.
Before considering the application on the merits, the Court took the view that it was in fact not mandated to stay the enforcement of the award if its own decision is not pending. In other words, where a decision of another dispute resolution body (e.g. the CCMA) is pending, the Court took the view that is not mandated by law to stay the enforcement of an arbitration award while that decision is pending before that other body.
The Court went on to opine that a default award is not an arbitration award that is capable of certification by the CCMA because it does not dispose of matters submitted for arbitration. The Court therefore took the view that although default awards are indeed binding, they are not final in nature.
The Court then expressed the view that the CCMA should and is empowered to stay the execution of a default arbitration award whilst its own decision on the rescission of the default arbitration award pends. The basis for this view is that the proper performance of the CCMA’s functions is such that it must have the authority to stay the execution of its awards while it determines an application in relation to that award.
Rule 31 (8) of the CCMA Rules suggests that the Commission or a commissioner may entertain an urgent application. Like in the Labour Court, such an application may be heard on a motion roll or determined in any manner the Commission or commissioner deems it fit.
This, as the Court reasons, will lessen the burden of the Labour Court.
These opinions expressed by the Court are not binding, as they do not amount to findings on an issue that was pleaded in the matter before Court. On the merits, the Court went on to grant the stay of execution sought by Denel, as has ordinarily been done by the Labour Court in circumstances such as these. However, this judgment may lay the foundation for matters relating to certification and stay of default awards to be handled differently in future. Of course, this will require the buy-in of the CCMA. It remains to be seen whether the CCMA/Bargaining Council will accede to this call.
The recent lifting of the National State of Disaster has left some confusion among employers as to their obligations and rights in dealing with Covid-19 in the workplace.
In its place the Department of Employment and Labour issued The Code of Good Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022 (‘the Code’) which came into effect on 5 April 2022.
The Code was introduced to ensure that employers continue to prevent and mitigate the risks associated with Covid-19 exposure in the workplace. The challenge was how to implement this without the inevitable delays of creating new legislation which would require the authority of parliament. Appropriately, the existing Occupational Health and Safety Act (“OHSA”) is used as the enabling legislation.
The Code is read with the Regulations for Hazardous Agents (‘the Regulations’) published in terms of section 43 of the OHSA. Under the Regulations, Covid-19 has been listed as a hazardous biological agent under Group 3. In line with the OHSA, the Code has placed a primary obligation on an employer to conduct a risk assessment and on the basis of the risk assessment prepare or revise its plan to implement reasonably practicable measures to limit infection and transmission of the virus, as well as mitigate the risk of serious illness or death of employees. Regulation 6(1) of the Code provides that both the risk assessment and plan must include:
- the criteria used to identify employees who must be vaccinated;
- the process of reporting symptoms and isolating employees who exhibit Covid-19 symptoms;
- protective measures used to limit the spread of Covid-19;
- a procedure to resolve disputes arising from an employee’s refusal to work because of safety concerns the manner in which the abovementioned obligations imposed by the Code will be complied with.
The employer is not limited to the abovementioned peremptory obligations when conducting the risk assessment and preparing or revising its plan. The employer may thereafter adopt additional measures suitable for its workplace.
On the issue of vaccination, in terms of regulation 12, the Code provides a legislative basis in terms of which an employer may require employees to be vaccinated, for them to perform their duties. Where an employee must be vaccinated to perform his or her duties, the employer must:
- communicate the obligation to be vaccinated to the employee;
- counsel the employee on issues related to the vaccines;
- allow the employee, at the employee’s request to consult a health and safety representative, a worker representative, or a trade union official;
- provide administrative support to the employees to register and to access their COVID-19 vaccination certificates; and,
- give the employee paid time off to be vaccinated and provide transport for the employee to and from the nearest vaccination site
The Code recognises that despite the provision of a mandatory vaccination policy, there may be instances where an employee refuses to vaccinate on any other grounds other than medical grounds such as religious grounds or personal grounds. In such instances, the Code requires the employer to counsel the employee and take steps to reasonably accommodate the employee and place them in a position that does not require them to be vaccinated.
Implicit in the OHSA is that the obligations to ensure a safe working environment are reciprocal to both employee and employer. This opens the door for an employer to rely on its rights under the Labour Relations Act for dismissal in circumstances where an employee cannot be accommodated. The consultative approach prescribed by the Code suggests that such a dismissal must be construed as a no-fault dismissal. Accordingly, this would appear to fall into a category of a dismissal for operational requirements.
Operational requirements and circumstances differ with each employer. As a result, reasonable accommodation may not always be possible and dismissal may be justified. However, the requirement that an employer should, where the employee’s refusal to vaccinate is not based on medical grounds, reasonably accommodate the employee, suggests that dismissal should be a measure of last resort.
Where an employee bases his or her refusal to vaccinate on medical grounds, the employer may require the employee to subject himself or herself to medical evaluation at the employer’s expense. Where the medical practitioner appointed by the employer confirms that the employee has contra-indications for vaccination, then the employer must accommodate the employee.
Given the nature of Covid-19, it is important that employers have appropriate measures in place that anticipate and accommodate the volatility of the virus, to curb its impact in the workplace. Where an employer has not done so, it is imperative that it conducts a risk assessment and develops a plan from the findings of the risk assessment. Where the risk assessment and plan exist update them in line with the Code.
Observing the contents of the Code will not be an easy task, and will require the aid of legal experts. Contact us for assistance with a risk assessment and plans tailored to your needs.
It goes without saying that a functional employment relationship envisages that an employee must be able to perform their duties. In that same vein then, it may seem logical that an applicant for promotion must be able to perform the duties associated with the job for which they are applying to be promoted to.
A complication arises where the employee is unable to perform those duties as a result of an injury that they sustained while on duty and where that injury has resulted in disability. Is it unfair discrimination not to promote the employee in these circumstances?
This was the question before the Constitutional Court in Damons v City of Cape Town.
Mr Damons works for the City of Cape Town as a Firefighter. He suffered an injury on duty which was determined to be of a permanent nature and he was no longer able to perform certain physical duties required of a Firefighter. He was placed in an alternative position that did not require him to perform those duties.
Mr Damons applied for the position of Senior Firefighter. In terms of the City’s policy and the relevant job description, it is an essential requirement of the job to be physically fit and able to carry weights of at least 25 kg. Mr Damons met all the requirements for the position but could not undergo the physical assessments due to his disability. He was not considered for the job.
Aggrieved with this, Mr Damons referred an unfair discrimination dispute on the grounds that the City’s policy discriminated against him on the basis of his disability. He further claimed that the City’s policy should be amended to exclude the physical assessment requirement and that he should be appointed into the position of Senior Firefighter.
Mr Damons agreed that he could no longer perform the physical duties of a Firefighter and that physical fitness was an essential requirement for the position of Senior Firefighter. It was the City’s case that, since the inception of the policy, no employee has been appointed as a Firefighter without having undergone the physical fitness assessment.The Court determined that once it was established that Mr Damons did not meet the inherent requirements of a Firefighter, there was no duty placed on the City to reasonably accommodate him.
For Mr Damons to have succeeded with his claim of unfair discrimination, he had to prove that he had been discriminated against on the basis of his disability despite having met the inherent requirements of the job. Whilst it may appear that the City’s policy discriminates against disabled employees in terms of the physical fitness assessment, there was no dispute that the inherent requirements of a Firefighter include being physically fit and able.
The Court found that when Mr Damons relied on an unfair discrimination claim in terms of the Employment Equity Act, the City had a clear defence that it was not unfair discrimination as Damons did not meet the inherent requirements associated with the position.
As such, the Court found that it was not unfair to discriminate against Mr Damons where he did not meet the requirements inherent in the position he wanted to be promoted to.
Many employers are unsure of which process to follow or what steps to take when dealing with an injured employee. It is important that the employer conduct an investigation to establish whether an employee is capable of performing their duties, partially or fully, notwithstanding their disability, and if not, the extent and duration of that inability.
Discrimination is a complicated and nuanced topic that necessitates getting expert advice at the earliest opportunity to ensure that costly mistakes are avoided.
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