From time to time we receive general questions and the answers should assist in resolving some common misperceptions about the practical application of labour law.

It often happens that unwary senior managers agree to ‘demands’ from trade unions and bind themselves to policies, procedures and practices that are not required by labour legislation.  

The focus will be on the legislation and its interpretation by court judgments rather than anything agreed between the parties.  Remember that awards of the CCMA and bargaining councils are not legally binding but may guide decision-making in some instances.  There is a doctrine of precedent obliging  persons arbitrating or adjudicating disputes to follow those decisions unless they can be distinguished on the facts.

The Labour Relations Act, 1995 (LRA) and Basic Conditions of Employment Act, 1997 (BCEA) are  relevant to this discussion.

Nine questions with answers

1#           Do senior managers have to conduct face-to-face hearings?

2#           What is meant by a right to be heard and to respond to allegations?

3#           Is it necessary to appoint an outsider to conduct any disciplinary procedure?

4#           When do dismissed employees forfeit the right to severance pay?

5#           How should warnings be framed?

6#           Do warnings expire automatically after a certain time?

7#           When can earlier warnings be relied on by management?

8#           Why is there an earnings threshold of R205,433.30 per year?

9#           What is the distinction between managers [senior and junior] and employees?

Discussion and answers

1#           Do senior managers have to conduct face-to-face hearings?

No.  Unless bound to do so by any agreement or legislation but it is not a requirement of the Labour Relations Act (LRA).  There is only a right to be heard and to respond to any allegations arising from an investigation concerning a possible reason to dismiss.

2#           What is meant by a right to be heard and to respond to allegations?

Simply the right to know what the factual allegations are and to confirm or deny the allegations and if denied another version.

3#           Is it necessary to appoint an outsider to conduct any disciplinary procedure? 

No.  Because it is not necessary to make any findings as such.  There is a statutory right to refer any dispute concerning alleged unfair dismissal to the CCMA or the appropriate bargaining council.

4#           When do dismissed employees forfeit the right to severance pay?

The BCEA s 41(4) provides that “An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subsection (2)” [which relates to payment of severance].

5#           How should warnings be framed?

Focus on the consequences of the behaviour complained about instead of the actual behaviour as such.  So once there is a valid reason to take any form of disciplinary action the focus shifts to whether or not the reason is ‘fair’ in the sense that it has damaged the relationship of trust and confidence.  In other words although some forms of behaviour may cause some damage it may not destroy the relationship.  So warnings are intended to inform the employee that if there are any further behavioural issues that further damage or destroy the relationship the employee could not expect to remain in employment.  In other words the warning mentions the incident but focuses on the outcome.

6#          Do warnings expire automatically after a certain time?

Not unless there is any policy or agreement that obliges warnings to expire.  It is suggested that they should remain in the personal file of an employee and the relevance will be assessed if and when necessary in the future.  So a warning for coming late may not be strictly relevant if there is a further transgression some years later concerning insubordination.

7#           When can earlier warnings be relied on by management?

When they are directly related to the potential impact on the relationship of trust and confidence or making ongoing employment were intolerable.

8#           Why is there an earnings threshold of R205,433.30 per year?

Presumably the policy of the government is that employees earning more that about R17,000 were able to protect their own interests and did not need legal protection to the same extent as employees earning less than the threshold.

9#           What is the distinction between managers [senior and junior] and employees?

In terms of BCEA section 1 “senior managerial employee” means ‘an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally’.

BCEA chapter 2 – Regulation of working time: sec 6.

“This Chapter, except section 7 [Regulation of working time], does not apply to (a) senior managerial employees”.

LRA chapter V – Workplace Forums : sec 78.   Definitions in this Chapter.  Application of this Chapter.

In this Chapter (a) “employee” means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace . . . (ii) represent the employer in dealings with the workplace forum; or (iii) determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace”.

Seven decision-making levels

In EEA9 there are seven levels which are known as ‘occupational levels’.  Decisions need to be taken by senior managers at the top three levels (from the top down) it would concern:

  • setting objectives (policy);
  • strategy; and
  • tactics.

Employees on the bottom three levels perform work by applying various degrees of skills.  Junior management employees on the fourth level perform the essential role of ‘linking’ decisions made by the upper three levels with the work to be performed by the bottom three levels.