In South Africa, we have three main governing acts regulating labour relations namely, The Basic Conditions of Employment Act 75 of 1997, the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. The question is, why do we need these acts? It effectively regulates the relationship between the employer and the employee to implement the ethics of how parties must conduct themselves in the workplace and to give effect to the parties’ rights and responsibilities towards each other.
Practices could have to pay employees a substantive amount of money awarded to them by the CCMA
Although it is not a statutory requirement that an employer and employee engage in a Contract of Employment, it is advisable to do so. The benefit of having a Contract of Employment in place confirms the scope of the basic conditions between the employer and the employee. The employer can decide what the contract’s content should look like, but they must bear in mind the three governing acts. The contract shall be drafted to make provisions for the employer and employees’ details, salary, working hours, leave, overtime, responsibilities, the need to keep the practice and its patient’s personal information confidential, any other unique provisions and how the contract should be terminated.
For further assistance, it is recommended that the employee receive a detailed job description from the employer. This will result in the employee understanding exactly what is expected of them in terms of duties during their contract of employment with the employer.
Policies and procedures are also important in the workplace. It helps to reinforce and clarify the standards expected of employees and helps employers manage staff more effectively as it defines what is acceptable and unacceptable behaviour in the workplace. It is suggested that the practice should have a separate document for Policies and Procedures that can be read together with the Contract of Employment. Further, the practice should draft a Disciplinary Code of Conduct for employees to follow. The document should be an exhaustive list of actions relating to misconduct by the employee and the appropriate sanctions for each type of misconduct.
What do you need to prove if an employee’s action is of such a serious nature that a disciplinary hearing, with the possible outcome of dismissal, is necessary? In other words, when is a dismissal fair? The employer must prove that the dismissal was procedurally and substantively fair. Procedural fairness refers to the process being followed for the specific dismissal, and substantive fairness refers to the merits or the reason for the dismissal.
WHAT ARE THE REQUIREMENTS FOR PROCEDURAL FAIRNESS FOR A DISMISSAL?
1. The employee should have received a notice from the employer 48 hours before the scheduled hearing. In the disciplinary hearing notice, the following needs to be noted:
a. Time, date and place
b. Sufficient details of the alleged charges against the employee
c. The employee’s rights
d. Should the employee fail to attend the hearing, the hearing can proceed without their attendance.
WHAT ARE THE RIGHTS OF THE EMPLOYEE?
• To be represented by a fellow employee
• To state their case
• To have an interpreter present
• To cross-examine witnesses
• To know the outcome of the disciplinary hearing
• To refer the matter to the CCMA within 90 days.
WHAT ARE THE REQUIREMENTS FOR SUBSTANTIVE FAIRNESS OF A DISMISSAL?
Any person who is determining whether a dismissal for misconduct is fair should consider the following:
• Whether or not the employee contravened a rule or standard regulating conduct in the workplace and
– If a rule or standard was contravened, whether
– The rule or standard was a valid or reasonable rule or standard
– The employee was aware or could have been expected to be aware of the rule or standard
– The rule or standard has been consistently applied by the employer
– The dismissal was the appropriate sanction contravening the standard or the rule.
Taking all into account, the practice needs to have contracts of employment, disciplinary codes and policy and procedures in place to avoid having to spend hours at the CCMA losing valuable time that should have been spent on taking care of patients and having to pay an employee a substantive amount of money due to an award given them by the CCMA.
