Our new location…

Yes, we are moving to www.ohs-on-demand.co.za

As of the 31st of December 2019 Sheqafrica.co.za will be moving over to OHS-On-Demand and offer a variety of On-demand services.

We are moving because SHEQ is killing business!

Labour Law in a Nutshell November 2019

HOLIDAY RANT: What can an employer do if an employee posts a racist rant while on annual leave?

This is what an Edcon employee did while she was on leave in December 2015. She was angry about President Zuma’s decision to replace Finance Minister Nhlanhla Nene with Minister Des van Rooyen. She took to Facebook to express herself in a post which read as follows –

“Watching Carte Blanch and listening to these f***ing stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president… President my f***ing ass!! #zumamustfall. This makes me crazy ass mad.”

The employee’s Facebook profile said she was employed as a Fashion Buyer by Edcon. The post sparked a flurry of protests on twitter about the racist contents of the post. Their fury was aimed not only at the offending employee, but also Edcon as her employer.

An example of one of the 351 Tweets which mentioned the Facebook post included: 

“@EdgarsSA what are your thoughts on the degrading racist remarks made by one of your buyers?? we demand answers #MsTeresaCantamessa” and “Another one!! #Ms TeresaCantamessa #RacismMustFall”

The outrage quickly spread into the mainline media with the Sowetan publishing an article about the employee’s post under the banner – “Racist Monkey slur strikes again”. Twitter users demanded answers from Edcon and some threatened not to do business with Edcon.

The employee referred a dispute to the CCMA after Edcon dismissed her following a disciplinary enquiry. The Commissioner found that the dismissal was substantively unfair and ordered Edcon to pay the maximum compensation of 12 month’s salary to the employee. The reasons for the Commissioner’s decisions were that the employee was not at work but on leave at the time she posted the offending comment – and that her post made no mention of Edcon.

Edcon was not satisfied and took the award on review to the Labour Court[1]. The LC disagreed with the CCMA’s decision and found that the dismissal was fair. It said an employer can take disciplinary action for misconduct committed while an employee is on leave provided it establishes the necessary connection between the misconduct and its business.

The “necessary connection” in this case was the employee’s status on her Facebook profile as an Edcon employee. The LC noted that an employee must avoid attracting attention as a controversial employee in the eyes of the public where he or she can be associated with the employer.

The post was considered to be highly offensive – and it was associated with Edcon by virtue of the employee’s status as an employee of Edcon. This entitled Edcon to take disciplinary action to protect its good name and reputation from falling into disrepute for tolerating racism.

TIP: Employers should be ever vigilant about reminding their employees that unbecoming behaviour and conduct can reflect badly on their employer regardless whether they occur at work or outside the workplace in personal time. This is especially true of posting comments on social media in which there are no boundaries and the dividing line between work and personal time is paper thin.   

PATRICK DEALE
labour lawyer & mediator
Deale Attorneys
Tel: 083 375 8771
Email:  patrick@deale.co.za
Skype: patrick.deale
Web:    www.deale.co.za

[1] EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019).

Source: Worklaw Newsflash October 2019.

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Draft Major Hazard Installation Regulations published for public comment

For the umpteenth time, the Department of Employment and Labour have issued poorly written draft regulations which in all likelihood will never come to anything but a kicking of dust and tyres. They require your comments within 90 days counting from 15 November 2019. Let’s have a look at what impact the draft regulations will…

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Network 9 and Sheqafrica.co.za teams up!

Sheqafrica.co.za has teamed with Network 9, a digital media company based in Cape Town, to bring our readers more information and opportunities in the SHEQ arena. With a Gold Club membership of R99 per month, you can now get access to all the online resources owned and managed by Network 9. In recent months, Sheqafrica…

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AISE blacklists OHSAConsultant

The Africa Institute for Safety & Environmental Engineering has blacklisted OHSAConsultant, a company offering “Safety files for R1200” from registering on its portal. OHSAConsultant, a Saisoh member, has been reported to send out spam email to numerous companies offering safety files on a “Black Friday” special discount of 50%. Sheqafrica asked the SACPMCP to clarify…

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Labour Law in a Nutshell October 2019

BAD COMPANY: Should an employee still be reinstated if a dismissal is unfair but the working relationship has broken down? 

This is what the Labour Appeal Court (LAC) had to consider in the recent Afgen[1] appeal.
If a dismissal is found to be unfair, s193 of the LRA says that – S193 of the LRA provides that –

2. The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless

a. …
b. the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
c. it is not reasonably practicable for the employer to reinstate or re-employ the employee;’ [emphasis added]

In the Afgen case, the CMMA found the dismissal was unfair. The arbitrator decided not to reinstate the employee because the employment relationship had broken down. He instead ordered the employer to pay 3 months compensation to the employee.

On review, the Labour Court ordered the employer to reinstate the employee and to pay her 24 months’ salary as compensation. On appeal, Labour Appeal Court (LAC) overturned the LC judgement and ordered the employer to pay 12 months compensation with no reinstatement.

In so doing, the LAC accepted the dismissal was unfair and noted that –

    • `There has to be an extraordinary reason to deviate from the standard remedies of reinstatement or re-employment under s193 (1);
    • The employment relationship in this case was dependent on the employee and her superior working closely together.
    • There was unchallenged evidence that the employee –
      • Seldom if at all reported back to her superior as she was required to do;
      • Did not take her seriously and bypassed her totally;
      • Did not respect her as her superior;
      • Did not adhere to instructions given to her;
      • Was generally rude;
      • Did not have a good working relationship with her;
      • Did not respond to her emails;
      • Allowed her work to fall behind in an unacceptable manner; and
      • Had received a number of verbal warnings and reprimands for her behaviour, yet this did not improve things and the employee simply ignored them.

The LAC concluded that there was clear evidence to show that there was no way that the employee and her manager would be able to work together. For this reason, it would be totally inappropriate to reinstate the employee into her position in these circumstances.

Tip: The LRA recognises in s193 that there may well be times when it’s just not possible or practical to reinstate an employee when there is a bad relationship between the employee and the employer. The legal system can’t force people to get along with each other when a relationship breaks down for whatever reason. There must be convincing evidence that the relationship of trust has been damaged beyond repair. This is made easier if the employee admits, as she did in the Afgen case, that she would not be able to work with her manager again.

Patrick Deale
labour lawyer & mediator

DEALE ATTORNEYS
Email: patrick@deale.co.za
Tel: 083 375 8771
Web: www.deale.co.za

[1] AFGEN (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40 (13 June 2019);
Source: Worklaw.co.za
Understanding Management Plans

Sheqafrica has introduced a more practical approach to SHEQ management and have done away with the outdated configuration of a Management plan. Mostly, OHS management plans are designed to address a number of elements which makes up the “system” and it identifies the risks, assigns responsibility and introduces a preventive program. But in essence, this is an operational plan and not a management plan.

A Management plan is a document designed by management for management.

It covers the 8 components of the management function and describes how each of these functions are performed to achieve the overall SHEQ Policy objectives.

These components are:

  1. Planning
  2. Organising
  3. Staffing
  4. Directing (Leadership)
  5. Motivating
  6. Controlling
  7. Co-ordinating
  8. Communication