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Ivan Israelstam
I have noticed that many employers have not made a practice of regularly updating their workplace rules. At one new client it was clear that their employment contracts and human resources policies had not been revised for 20 years. However, over the past 11 years, labour law has changed dramatically. Since 1995, the Labour Relations Act (LRA) and Basic Conditions of Employment Act have been replaced with entirely new versions.
New legislation in the form of the Skills Development Act and the Employment Equity Act have been born. The LRA has also been amended more than once. Attached to these acts are numerous codes of practice that provide guidelines as to what is fair and acceptable.
As large as this body of legislation is, it often falls short when it comes to detail. For example, the LRA allows employers to forcibly retire employees who have reached the "normal" retirement age but does not explain what constitutes such "normal" retirement age.
Therefore, employers and employees need to look to case law for more detailed guidance and what would be fair in specific circumstances. The employer's own rules and terms and conditions of employment can, within limits, play a significant role in determining what discipline is and is not fair. For example, in Rubin Sportswear v Sactwu and others, the employer took over a business and then introduced a rule changing the age at which employees were to take retirement.
The Labour Appeal Court found that the word "normal" means "the way things are normally done" and that the employer could not unilaterally change what was normal. It is therefore imperative that employers have their rules reviewed in line with the latest interpretations of the courts.
Had the new employer, at the time of takeover, negotiated renewed employment contracts with its employees, it could have included the new retirement age. There are other reasons why employers need to update their rules and terms and conditions of employment.
Employees may need to accept transfers to new locations or to a different shift. If this is not part of the employment conditions for which employees sign an agreement, the employer will have a hard time forcing an employee to make the required move. Employers are not allowed to suspend employees unfairly, and one element of unfairness could be the length of the suspension period. If the disciplinary code does not cater for protracted suspensions, then a drawn- out period of suspension could be considered unfair even if the employee is being paid.
Protracted suspensions could be unfair not only on the employee but also on the employer and on the general public! Where the employee is being paid to sit at home without working, the employer bears the burden of the cost of the employee's unearned remuneration. Either the company's shareholders have their profits eroded or, where the employer is the state, the taxpayer shoulders the burden.
For example, it was reported in The Star that 11 officials of the Road Accident Fund were suspended on full salary for a period of not less than 10 months at a cost of R5,3-million. The standard clauses in employers' disciplinary codes are no longer sufficient because provision needs to be made for exceptions as well. For example, should the employer wish to discipline an employee twice for the same act of misconduct, the employer's disciplinary code should provide for this.
In the case of BMW (SA) v Van der Walt, the Labour Appeal Court held that it is important that, for a second hearing for the same incident of misconduct to be fair, this should ideally be permitted by the employer's disciplinary code. In addition, the holding of a second hearing must be fair in all respects. Employers are warned that the holding of such second hearings would be fair only in exceptional cases. Should employers fail to keep up with such decisions of court judges and of arbitrators, they will be unable to run their organisations according to law, because labour law is a constantly changing thing.
If employers fail to update their rules, disciplinary codes and terms and conditions of employment in the light of new case-law decisions, they will be caught short when it comes to implementing discipline and dismissal. This is because an employer's rules and policies should encapsulate the latest labour laws so that, when management applies the policies, they are in line with the law.
It can be a complex task for an employer to draw up a comprehensive set of rules, but dealing with the consequences of having no rules can be far more onerous for employers at the CCMA, bargaining councils and Labour Court. If employers are not in a position to take charge of this vital task, there are experts they can use who can take over the pain of carrying it out and making sure it is done properly.
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