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Employee & Employer Rights

André Claassen

Employment relationships are built on trust and the rights of parties. Employees and employers have very specific rights in terms of common law and labour legislation. Balancing these rights is extremely important and pivotal to a fair and successful employment relationship. It must always be remembered that with every right there is an obligation. In other words the rights of the employee are the obligations of the employer; and the rights of the employer are the obligations of the employee.

General employee rights

Employees have the following rights: 

  • not to be unfairly dismissed or discriminated against
  • to be provided with appropriate resources and equipment
  • to have safe working conditions
  • to receive the agreed remuneration on the agreed date and time
  • to receive fair labour practices
  • to be treated with dignity and respect
  • to non-victimisation in claiming rights and using procedures
  • to leave benefits and other basic conditions of employment as stipulated in the BCEA.

Those are some of the general rights of employees. Looking specifically at safe working conditions; in Media 24 Ltd & another v Grobler [2005] 7 BALLR 649 (SCA), an employee had been sexually harassed by a junior manager over a period of five months. At the time that the alleged sexual harassment took place, the complainant was a 33-year-old secretary employed by the employer. The accused was at that time a trainee manager employed by the employer.

It was alleged by the complainant that the employer had failed to address the issue, despite her requests for him to do so, had failed to act despite the fact that it was common knowledge that the junior manager was sexually harassing her, that's the employer failed to deal with the allegations of sexual harassment seriously and expeditiously, and permitted the accused wide latitude in his conduct towards his subordinates, in particular, the complainant. There were also other issues, but the above is the crux of the matter.

It was also alleged that there was a romantic affair between the complainant and the accused at some stage, and that the final incident leading up to the whole matter of the court action actually occurred off the workplace premises, which cause the employer to allege that it therefore had nothing to do with the workplace. This was a very involved matter, which went from the Cape High Court to the Supreme Court of Appeal. It was found that there was a negligent breach by the employer of a legal duty to its employees to create and maintain a working environment in which, amongst other things, its employees were not sexually harassed by other employees in their working environment.

It was also found that an employer has a common law duty to its employees to take reasonable care for their safety and also found that this duty cannot be confined to an obligation to take reasonable steps to protect employees only from physical harm caused by what may be called physical hazards.

The view of the court was that this duty also included a duty of the employer to protect employees from psychological harm, caused for example by sexual harassment by another employee. The employee who was sexually harassed in this matter was awarded damages of R776814.00. Employers must know therefore that ignoring a legal duty such as this can prove to be very costly because apart from this huge award of compensation, there is also the aspect of legal and other costs which must be borne by the employer - all of which could have been avoided had the employer he only take notice of the complaints, and taken action in terms of the employee's complaints.

Employee rights – Basic Conditions of Employment Act

In terms of section 78 of the BCEA, the employee is entitled to the following legal rights:

(1) Every employee has the right to:

(a) make a complaint to a trade union representative, a trade union official, or a Labour inspector concerning any alleged failure or refusal by an employer to comply with this act;

(b) discuss his or her conditions of employment with his or her fellow employees, his or her employer, or any other person;

(c) refuse to comply with an instruction that is contrary to this act or any sectoral determination;

(d) refuse to agree to any term or conditions of employment that is contrary to this act or any sectoral determination;

(e) inspect any record kept in terms of this act that relates to the employment of that employee;

(f) participate in proceedings in terms of this act;

(g) request a trade union representative order a Labour inspector to inspect any record in terms of this act and that relates to the employment of that employee.

(2) every trade union representative has the right, at the request of an employee, to inspect any record kept in terms of this act that relates to the employment of that employee. Subsection (1) (b) above can cause a problem, because "conditions of employment" includes matters like salary, wages, salary or wage increases, bonuses and so on. Employers may not prohibit employees from discussing matters such as salary, wages etc with fellow employees, because the right to do this is a legal entitlement bestowed upon the employee by Act of Parliament, and the employer has no authority to deprive an employee of a legal entitlement bestowed upon that employee by any law.

Section 79 (2) goes on to state as follows:

(2) no person may discriminate against an employee (including a former employee or an applicant for employment) for exercising a right conferred by this part, and in no person may do or threaten to do any of the following:

(a) require an employee not to exercise a right conferred by this Part;

(b) prevent an employee from exercising a right conferred by this part or;

(c) prejudice an employee because of a past, present or anticipated

(i) failure or refusal to do anything that an employer may not lawfully promote or require an employee to do;

(ii) disclosure of information that the employee is lawfully entitled or required to give to another person; or

(iii) exercise of a right conferred by this Part.

(3) no person may favour, or promise to favour, and employee in exchange for the employee not exercising a right conferred by this Part.  However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle the dispute.

Employer rights 

  • To expect employees to render the agreed services on the agreed days and times
  • to expect employees to perform under his authorisation
  • to carry out all work instructions and obey all reasonable and lawful instructions issued)
  • to expect employees to display good behaviour in the workplace (to comply with company policy and procedure, and to comply with company Disciplinary Code and Procedure, and to behave in the workplace in a manner acceptable in the norms of society)
  • to expect employees to act in good faith, be loyal, and have the best interests of the employer at heart at all times
  • to expect employees to follow workplace rules, company policies and procedures and work performance standards
  • to expect employees to strive honestly toward work objectives, and to expect employees to adhere to product specifications and quality standards
  • to expect employees to use the employer’s prescribed resources and methods
  • to expect employees to report to him any dishonest or unlawful practices in the workplace, including any breaches of company policies and procedures.

This last expectation is a difficult one, because usually if an employee notices fellow employees conducting themselves in a dishonest manner, or engaging in dishonest practices in the workplace, such as theft and so on, that employee will turn a blind eye and look the other way.

He will do this simply because if he does make a report to the employer, his lifespan will suddenly become very limited, and he is general state of health may suddenly become a source of concern due to no fault of his own. If the employees perpetrating the dishonesty find out that he has "blown the whistle", they will be certain to extract revenge on him either by personal injury, injuring or assaulting his family, or in some other way causing personal injury or damage to property, even to the extent of loss of life. Thus, the employee cannot really be blamed if he does not report such ’goings on’ to the employer, and the employer must b certain to take into account these personal circumstances of the employee.

On the other hand, the failure of the employee to report dishonesty in the workplace to the employer could in fact make him or her an accomplice to the fact, or, in legal terms, and "accessory to the crime." The common law duty to act in good faith towards the employer flies out the window and the employer is faced with the difficult decision as to whether it is going to start charging witnesses for failing to report misconduct or to come forward with information and evidence.

Employers in the retail industry faces huge losses to theft or industrial espionage and the guilty party or parties are never identified although many are aware of the misconduct, but they are either sharing in the proceeds or are just not prepared to come forward with information to assist the employer in identifying the thieves.

In Foschini Group v Maidi & others (2009) 18 LAC 1.25.2; [2010] 7 BLLR 689 (LAC) five employees (the full staff compliment in that store) were charged with “failure to secure assets of the company” after substantial stock losses were detected at the clothing store where they had been employed. The employer could not prove that they were in fact stealing the stock, however they were dismissed in their absence for “Gross negligence by failing to take proper care of company property under their control resulting in a financial loss of R 207 000 as well as an irretrievable breakdown in the trust relationship. The stock losses reached a level in excess of 28% (some 1 553 items over a period of six months) which was contributed to their lack of commitment towards the company. The company conducted a thorough investigation by sending a manager to the store in question, who conducted the investigation himself, which preceded and founded his report.

The Commissioner in the arbitration proceedings (and as confirmed by the LAC) looked at various cases where the question of collective misconduct or sanction was considered. Grogan is of the view that, in the context of employees in a small store, who are unable to point to some cause for the stock loss, the species of misconduct upon which the company relies when it calls members of an entire staff to book for stock loss, although collective in nature, would be better described as ‘team misconduct. The team is responsible for maintaining the stock and in the case of ‘team misconduct’ the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible. It should be noted therefore that the principle is not that some (the innocent) must suffer because the employer cannot pin point the guilty. In this case, all are held responsible for not complying with the rule and not acting in good faith in executing their duties. It therefore lies in each employee’s individual culpability for the failure of the group to attain the performance standard set by the employer.

In Chauke & others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) [also reported at [1998] JOL 3076 (LAC), the Labour Appeal Court held that an employer, who suffered continuously under industrial sabotage perpetrated by unidentified employees, was entitled to dismiss all the employees on the shop floor where the damages occurred, on the basis that the employees must have known who the perpetrators were and failed to come forward and identify them. Again, the employees made them guilty of a special misconduct – breach of trust and duty of care towards the employer.

Although the principle in question causes problems in light of the principle of fairness in our law, Cameron JA in the Chauke case formulated two lines of justification for a fair dismissal in such circumstances. The first is where an employee, who is part of the group of perpetrators, is under a duty to assist the employer in bringing the guilty to book. The second is where an employee has or may reasonably be supposed to have information concerning the guilty but fails or refuse to disclose same. His or her failure to come forward with the information may itself amount to misconduct as the relationship between employer and employee is in its essentials one of trust and confidence, and, even at common law, conduct clearly inconsistent with that essential warranted termination of employment. The LAC found failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal.”

The learned Judge of Appeal further held that this derived justification is wide enough “to encompass those innocent of the main misconduct, but who through their silence make themselves guilty of a derivative violation of trust and confidence.

For more information contact [email protected]

 

The four-day working week and its impact on South African labour law: Are we ready?

 

If there is one thing we can learn from the COVID-19 pandemic, it is that many employees can work from anywhere and the “normal” 9 to 5 is no longer palatable to the upcoming workforce.

 

2022/07

By Hedda Schensema, Director and Tshepiso Rasetlola, Associate, Employment Law, Cliffe Dekker Hofmeyr

 

Over the past two years, many employers have had to reassess their working arrangement as a result of the pandemic. COVID-19 served as a test run on what the “new normal” has to offer in respect of the employment relationship and some working conditions. This has resulted in many employers successfully implementing a hybrid working arrangement and, in some instances, even requiring their employees to work from home indefinitely.

 

Many employers have indicated that they have experienced an increase in productivity and less stressed employees. On the flip side, however, employees have been unable to shut down and find themselves working round the clock and over and above their normal working hours. Considering the above, does this mean that South Africa is ready for a four-day working week post COVID-19?

Countries like Belgium and the UK have been able to successfully implement a four-day working week. However, given that South Africa is highly regulated in respect of its labour and employment laws, it has been argued that it would not be as seamless or easy an exercise to implement in comparison to these countries.

 

South Africa has numerous bargaining councils and sectorial agreements that regulate basic conditions of employment in the different sectors and include, inter alia, working hours. In order to be able to implement a four-day working week model, these agreements will have to be amended and their terms renegotiated to align with such a model.

 

This means an employer cannot change the terms and conditions of employment as recorded in these agreements without first consulting the relevant stakeholders, which include trade unions, workplace forums and individual employees.

 

This is a process that is consultative and which must result in consensus being reached on all aspects related to the arrangement. A failure to obtain consent prior to implementing the working model may result in a unilateral change in terms and conditions of employment by an employer. This could expose the employer to a referral by its employees in relation to unilateral changes to terms and conditions of employment.

 

In addition to this, the relevant labour and employment laws will have to be amended to cater for the working model from a regulatory point of view. Employers will need to consider their health and safety obligations towards employees in terms of the Occupational Health and Safety Act 85 of 1993, which requires an employer to, among other things, do everything reasonably practicable to protect employees’ health and safety in the workplace. In this regard, an employer’s obligations to ensure the health and safety of its employees extends to where the employee is working outside of the conventionally understood workplace, including a home office.

 

Although a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their respective sector and industry in order to establish whether it would be practicable or even feasible for its business model. Employers will also have to consider the applicable legislation and agreements regulating their sector and engage in a consultative process with the relevant stakeholders.

 

It is, therefore, perhaps premature to make a concrete finding that the four-day working week model would be possible in a highly regulated country like South Africa. We will therefore have to monitor its progress and assess from an individual employer’s business model as to whether the four-day working week would be appropriate.

 

For more information please contact Hedda Schensema at [email protected] or Tshepiso Rasetlola at [email protected]

 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com.

 

 

 

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