Can an employer defame his employee in a dismissal letter?

Posted in Dismissals, Employee misconduct, Questions and Answers with tags , on March 4, 2010 by labourlawoffices

It is quite routine for an employer to issue an employee with a letter of dismissal when the employment relationship comes to an end at the employer’s initiative. This could relate to either prior misconduct of the employee, incapacity due to poor performance or ill health or even retrenchment. What happens when an employer has held a disciplinary enquiry with an employee and the employee has been found guilty of say fraud and theft? Can the employer now in a letter of dismissal communicate to the employee (and the world out there) the detail of the reasons for the dismissal. On the face of it such reasons and advice would be defamatory of the employee. The employee has after all not been found guilty in a criminal court of such misconduct and may never in future be so convicted.

An employer dictating a dismissal letter containing such prima facie defamatory matter to the secretary of the firm is publishing defamatory matter to a third party. An employer has a moral, social and legal duty to communicate the reasons for an employee’s dismissal to him / her. The publication of the contents of the letter of dismissal to the typist is, however, regarded as a privileged occasion. Publication to the typist of the contents of the letter of dismissal to be typed is publication in the exercise of the duty to inform the employee of the reasons for termination of his employment. It will therefore not constitute defamation.

Photo Credit: http://www.flickr.com/photos/anniebee/92853447/

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Question: Leave and overtime pay

Posted in Leave, Questions and Answers, Uncategorized, Wages and salaries on November 2, 2009 by labourlawoffices

Question:

Our company requires that our artisans work a standby and are paid overtime when called out for duty. Many of them earn above the threshold for overtime, but we still pay same to them. The standby is done on a rotational basis and they average one standby every 6 weeks.
The problem arises that when they take annual leave, which is taken without prejudicing their allocation for standby and resulting overtime, we still have to pay them BECA Leave pay for the “lost” overtime, although they work on the rotation system and are not prejudiced by taking their leave.
Given this situation do we still give them BCEA leave?

Answer
An employer is obliged to grant its employees at least 21 consecutive days annual leave on full remuneration in respect of each 12 months employment cycle.  Section 21 of the Basic Conditions of Employment Act, 1997 requires an employer to pay an employee at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave.  This is calculated at the employee’s rate of remuneration at the time and if regard is had to Section 35 of the Act, it is only the ordinary hours of work, namely 45 hours per week that (leave) wages have to be calculated and paid at.  Anything paid over and above this is not a legal requirement but an ex gratia payment made by an employer.

Termination of employment during Probation period

Posted in Dismissals, Questions and Answers with tags , , on October 30, 2009 by Maggie

Question:

Termination of employment during Probation period – irrespective of duration of probation period: May I terminate an employee with 24 hours notice and with what reasons?

Answer:

An employer does not have to wait for a probation period to have run its course before effecting the dismissal of a probationary employee.  It would therefore, in appropriate cases be permissible to effect the dismissal of a probationary employee during the probation period itself.  Ordinarily a probationary employee may be dismissed for incapacity / poor work performance.  If that is indeed the case, then no less than one week’s notice of termination has to be given to the employee.  If, however, the employee has misconducted him / herself, and is found guilty of serious misconduct, summary termination is permissible.  Such dismissal will, however, have nothing to do with the probationary nature of the employment then.

Care should be taken not to be seen to have dismissed a probationary employee too soon.  The purpose of probation is to give an employer the opportunity to evaluate the employee’s performance before confirming the appointment.  The period allowed for such assessment should therefore be proper and fair in the circumstances.

Photo credit: http://farm3.static.flickr.com/2415/2246558373_4bf0167cd8_m.jpg

Must a municipality supply free water to its inhabitants?

Posted in Basic rights, Constitutional matters with tags , , , on October 30, 2009 by Maggie

We recently discussed the Supreme Court of Appeal’s decision regarding the unconstitutionality of aspects of the water policy of the City of Johannesburg. This decison has now been considered by the Constitutional Court.

There were two main issues for consideration by the Court. Firstly whether or not the City’s policy (which gave the residents of Phiri, free of charge, 6 kilolitres per household per month or 25 litres of water per person per day) was unreasonable in terms of the Constitution and / or the Water Services Act, which had been promulgated to give effect to the constitutional right of access to sufficient water. The second concerned the lawfulness of the pre-payment meters.

The Court clarified that the City was not under a constitutional obligation to provide any particular amount of free water to citizens per month but rather that it was “under a duty to take reasonable measures progressively to realize the achievement of the right”. Thus the Court concluded that the policy of the City was not unreasonable and that the pre-payment meters were not unlawful being empowered by law, procedurally fair and not unfairly discriminatory.

The Court dealing with the importance of litigation around the area of socio-economic rights, considered the detail of what the government is required to do in order to meet the standard of reasonableness in these terms:

“The purpose of litigation concerning positive obligations by social and economic rights should be to hold the democratic arms of government to account through litigation. In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy. When challenged… the government agency must explain why its policy is reasonable. Government must disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected. …Simply put, through the institution of the Courts, government can be called upon to account to its citizens for its decisions. This understanding of social and economic rights…. accords with the founding values of our Constitution.” (Emphasis added).

Photo credit: http://www.flickr.com/photos/lady_lush/1922652073/sizes/s/

Can you evict a dismissed employee off your property?

Posted in Basic rights, Dismissals, Questions and Answers with tags , , on October 26, 2009 by labourlawoffices

In terms of his contract of employment with his employer, Mr Viljoen was provided with accommodation for a nominal rental on his employer, Lebowa Platinum Mines’ Land.  After he was dismissed from his employ, Viljoen remained in occupation beyond the 30 days permitted in terms of the employer’s housing policy, and refused to vacate the premises.  The employer duly instituted proceedings in the High Court for his eviction on the basis that he was “an unlawful occupier” as he no longer had the employer’s express or tacit consent to occupy the premises.

Viljoen opposed proceedings and raised the defence that he was an “occupier” as contemplated in the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) because he was unemployed and the premises were situate on a farm and not in a township as envisaged in Section 2 of ESTA.

Those facts, he contended, excluded the High Court’s jurisdiction to adjudicate the eviction proceedings.  The matter was transferred to the Land Claims Court by agreement between the parties.  The Court ultimately found that Viljoen was an occupier as contemplated in ESTA and that the employer ought therefore to have instituted the eviction proceedings under ESTA and dismissed the application.

The employer appealed against that decision to the Supreme Court of Appeal.  [(Lebowa Platinum Mines Limited v Viljoen) 2009 (3) SA 511].  The employer contended that Viljoen’s right to occupy the premises terminated automatically on his dismissal and that he did not thereafter qualify as an “occupier” as contemplated in ESTA, as ESTA was intended only to protect “poor previously disenfranchised farm workers”, which Viljoen undisputedly was not.

The Court held that the contention that ESTA was intended only to protect “poor previously disenfranchised farm workers” was misconceived.

Although there was obviously a particular class of vulnerable persons which was the legislature’s primary concern when ESTA was conceived, of which Viljoen might not be a member, Courts were nonetheless enjoined to consider the colour-blind provisions of Section 26 (3) of the Constitution when interpreting ESTA.  From the wide wording of such provisions, it hardly seemed inconceivable that, in that exercise, a person falling outside the designated category, but nonetheless possessed of a landowner’s consent or some other legal right, might fall within its purview the Court held.

The relevant time at which Viljoen’s circumstances had to be assessed for purposes of determining whether he was or was not an “occupier” as defined in ESTA was when his lawful occupation ceased, i.e. when the permission or right to occupy was withdrawn or ceased.

In the present case it was found that the employee did not qualify as an occupier during the tenure of his employment.  However, he remained in occupation of the premises with the employer’s consent after termination of such employment; that, at a time when he no longer earned an income and did not use the premises for the purposes precluded in the ESTA definition.  During this period the employee’s occupation of the premises undoubtedly assumed an entirely different character which brought him squarely within the amdit of “occupier”.  It was therefore held that Viljoen was an occupier as contemplated in ESTA and the Court declined to grant a remedy.

Question: Maternity leave payments

Posted in Basic Conditions of Employment, Leave, Questions and Answers with tags , on October 24, 2009 by labourlawoffices

Question:

I would like confirmation that employees who are on maternity leave are entitled to still receive the normal BCEA leave days accruing to them while they are on maternity leave.

Answer

Section 25 of the Basic Conditions of Employment Act, 1997 provides that an employee is entitled to at least 4 consecutive months’ maternity leave.  This leave is of the unpaid variety.  If proper regard is had to Section 20 of the Act regulating annual leave it becomes apparent that paid leave entitlements are linked and subject to the actual number of days an employee worked or was entitled to be paid.  It follows that unless an employee is on paid maternity leave, any maternity leave taken purely in accordance with the maternity leave provisions of the Act would not entitle such employee to accrue normal leave days while on maternity leave.

Question: Wage Payments

Posted in Questions and Answers, Wages and salaries with tags , , on October 24, 2009 by Maggie

Question:

If the minimum wage according to the Sectoral determination is R1700-00 per month, are we correct if we pay the person as follows:

Your total direct cost to the company will be R1700-00 per month made up as follows:

Cash:            R1545-45
Provident fund:  R154-55
(10%) company contribution

Are we still conforming to the minimum wage law although we are paying the person only R1545-45 cash and the rest as a provident contribution?

Answer:

The industry in which you operate, namely the retail and wholesale distribution sector does not make provision for provident fund membership or contributions to be paid by employers on behalf of its employees.  It follows that in terms of the applicable sectoral / wage determination your employee is entitled to be paid his / her full wage of R1 700.00.  Nothing, however stops you from agreeing with your employee that his / her remuneration is structured in the way as proposed.  It is, however, only after agreeing to such a remuneration structure, that such particular pay practice will be lawful and compliant.