CONSTRUCTIVE DISMISSALS

03 December 2020

Readers may be interested in the subject constructive dismissals.

A constructive dismissal arises when an employee resigns because the employer made the employee's continued employment intolerable.

Much has been written about exactly what is meant by the words “intolerable”.

Intolerable means that the condition created by the employer were such that the employee had not other option than to resign.

If the employee resigns because the employer tells the employee to attend a disciplinary hearing, that is not a good enough reason for the conditions to be described as “intolerable”.

If an employee is given a work instruction which the employee decides is unreasonable, that is not normally something which fits in with “intolerable”. Even if such instructions continue, the employee can put in a grievance or refer the matter to the CCMA.

To succeed at the CCMA, the employee must show that the conditions created by the employer were so unpleasant, so unbelievable, so onerous, that the employee had no option but to resign.

The cases that support this view are:-

  1. National Health Laboratories Service v. Yona and Others 2015 36 ILJ 2259 (LAC)
  2. Gold One Limited v. Madalani & Others (JR 1190/15) 2020 ZALCJHB 180, 9 September 2020
  3. Chabeli v Commission for Conciliation, Mediation and Arbitration and Others (JR2241/08) [2009] ZALC 126 (22 December 2009)

Compiled by Les Owen


20 October 2020

IMPORTANT NEW REPORTING REQUIREMENTS FOR COVID-19

Consolidated Directions on Occupational Health & Safety Measures in Certain Workplaces – Directive dated 28th September 2020

The new Directive covering Occupational Health and Safety compliance within the Workplace with reference to the COVID-19 pandemic has created a number of new reporting requirements:

Employers who have 50 or more Registered Employees must submit a record of its risk assessment together with a written policy concerning the protection of the Health and Safety of its employees from COVID-19, as contemplated in Section 7 (1) of the OHSA to the Department of Employment and Labour by the 21st October 2020.

Submission must be made by email to the address of the appropriate provincial Chief Inspector listed in http://www.labour.gov.za/About-Us-Ministry-Pages-IES0320-7398.aspx.

Employers who have 50 or more Registered Employees must submit the following categories of data to the National Institute for Occupational Health (NIOH) in the manner set out in the National Department of Health guidelines:

1) Each employee's vulnerability status for serious outcomes of a COVID-19 infection

Thus, one would need to send the data of all current employees and thereafter only send updated information for newly appointed employees or presumably if the status of an employee changes, for example, if they receive a new medical diagnosis revealing that they have a new comorbidity.

To remind Employers, a vulnerable employee is considered or means any employee with known or disclosed health issues or co-morbidities or any other condition that may place the Employee at a higher risk of complications or death than other employees if infected with COVID-19; or who is above the age of 60 years who is at a higher risk of complications or death if infected.

In the Department of Health submission guideline, the following are listed as co-morbidities: Asthma, Chronic Lung Disease, Diabetes, Hypertension, Serious heart conditions, chronic kidney disease, chronic liver diseases, immunocompromised, TB, previous TB, HIV.

The following are listed as risk factors: over 60, smoker, pregnant, obese.

This data only needs to be submitted once in respect of each employee's status.

2) Details of the COVID-19 screening of employees who are symptomatic.

The following are symptoms listed in the guideline on submissions: fever, chills, dry cough, sore throat, shortness of breath, tiredness, lack of smell or taste, red eyes, diarrhoea, runny nose or congestion, muscle pains, nausea or vomiting, dizziness, headache.

Please note you only need to submit a screening report where the employee has reported he or she is suffering from one or more of these symptoms.

This information must be submitted on the Tuesday of every week reporting on the past Monday to Sunday information.

3) Details of employees who test positive in terms of a positive laboratory test for the COVID-19 virus.

The type of test (antigen / antibody) must be specified in the submission.

This information must be submitted on the Tuesday of every week reporting on the past Monday to Sunday information.

4) The number of employees identified as high-risk contacts within the workplace if a worker has been confirmed as positive.

The Guideline on submission of COVID-19 health data defines a high risk of exposure as being in close proximity (less than 1.5m) for a prolonged period of time (more than 15 minutes) without the use of PPE and / or a face mask.

This information must be submitted on the Tuesday of every week reporting on the past Monday to Sunday information.

5) Details on the post infection outcomes of those testing positive, including the return to work assessment outcome.

This information must be submitted on the Tuesday of every week reporting on the past Monday to Sunday information.

The abovementioned information or data must be submitted to the NIOH at the following email address: OHSworkplace@nioh.ac.za or via the online platform at http://ohss.nioh.ac.za.

The National Department of Health's guidelines on the submission of COVID-19 related health data from workplaces to the National Department of Health can be found at https://www.nioh.ac.za/wp-content/uploads/2020/08/Workplace-Data-Submission-Guideline

We suggest using the online platform for these submissions as its sets out a good format to assist with submissions. You will need to register as a platform user in order to do this.

The Employer must inform its Employees of the submissions made and advise them of its adherence to the Protection of Personal Information Act.

You are reminded that, as before, you are required to inform the national Institute for Occupational Health of any worker having been diagnosed of COVID-19 as well as informing the Compensation Commissioner.

Source: John Hagglund - John Hagglund & Associates

Shared with Owen, Adendorff & Associates

03 September 2020

REDUCING AN EMPLOYEE'S WAGE OR SALARY DURING COVID-19

It is clear that many employers have reduced the salary or wage of employees. This has been done to ensure the survival of their businesses. However, the question that arises is whether an employer is lawfully allowed to do so?

This question has been answered by the Johannesburg Labour Court in the matter between Macsteel Service Centres SA Pty Ltd v NUMSA (J483/20). The answer is that an employer must have an employee's consent before reducing the salary or wage.

One way an employer can reduce an employee's wage or salary is to pay the employee only for the time the employee actually works. Alternatively, if the employee works full time, the employer must have the employee's written consent before reducing the employee's wage or salary.

Another way is for an employer to inform the employee that the employee has a choice – accept a reduced pay rate or face retrenchment. This may not be a workable option as the employer may not have sufficient funds to retrench long serving employees.

A third option is to persuade older employees to take early retirement. This will reduce the employer's salary/wage bill.

You have been warned.

Compiled by Les Owen