Section 6(3) of the Employment Equity Act, Act 55 of 1998 (‘EEA’) states that harassment of an employee is “a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1)”. While the Act prohibits all forms of harassment based on the grounds mentioned, sexual harassment is one of the most common forms of harassment encountered in the workplace. As per the Code of Good Practice: Sexual Harassment, sexual harassment is “unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual”. Depending on its seriousness, a single incident of sexual harassment might warrant the dismissal of the perpetrator. For example, dismissal would be warranted where the perpetrator has been warned of his previous unwanted and unacceptable conduct, but he persisted in such behaviour. The EEA forces employers to act on allegations of sexual harassment (or any other form of harassment), and not simply turn a blind eye to a complaint. Employers as a minimum have to at least investigate the circumstances surrounding the complaint in order to ascertain, first, whether the complaint is genuine, and if so, what further actions are required. If an employer fails to act on a complaint of harassment, and it is afterwards proven that harassment did in fact occur, the employer may be held liable for compensation. Section 60(3) of the EEA states that “If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision”. For a full discussion of the consequences of a failure to act on a complaint of sexual harassment click here to take you to an article in which we discuss this issue in some more detail.
Employees are not entitled as of right to a bonus, unless this has been agreed to in a contract of employment or collective agreement. In the latter case, the employer cannot unilaterally remove same and replace it with, e.g. a discretionary bonus, as this will amount to a breach of contract: the employee’s (or union’s) agreement needs to be obtained to effect such a change. Employers would be well advised, if they do have a discretionary bonus scheme, to include a provision in future employment contracts stating that no right to payment of a bonus exists and that payment remains at management’s discretion and, further, that past practice does not create a right to future bonus payments. However, even where a bonus is not guaranteed, non-payment may still amount to an unfair labour practice. This will be the case, for example, where an employee meets all the requirements for a discretionary bonus but the employer, without a valid reason, refuses to pay it, or pays it to some but not to others. Also, if an employer treats employees who are in similar positions differently, i.e. by paying bonuses to some and not to others on the basis of race, gender, or any other discriminatory ground, the employer may be guilty of unfair discrimination under the Employment Equity Act.
It would be easiest to distinguish between three scenarios:
1. Where an employee stays away from work without permission (AWOL), an employer can discipline the employee for misconduct. Where the employee has previous warnings on file for the same offence, the employee can ultimately be dismissed if he goes AWOL again, after a disciplinary hearing. Before doing so, however, the employer should take reasonable steps to try and locate the employee and establish the reasons for the absence. If the employer is unable to secure the employee’s presence at the hearing the employer may proceed with the hearing in the employee’s absence if the employer is able to prove that it reasonably tried to contact and secure the presence of the employee.
2. Where an employee is genuinely sick or suffers from a disability which renders the employee unable to perform his normal duties, absenteeism should be dealt with in terms of an incapacity process (i.e. counselling with the employee to ascertain, amongst others, the degree of incapacity, the reasons for it, when the employee is likely to be able to resume his normal functions, and alternatives to dismissal where it is established that the employee will not be able to resume his functions at all or within the foreseeable future). In this situation medical certificates and/or medical reports will be required. The provisions of the Code of Good Practice on Managing Disability in the Workplace, issued under the EEA, must also be kept in mind, as well as the Technical Guidelines on Managing Disability issued in conjunction with the Code.
3. The third category is where an employee is absent for short periods, but “plays by the rules”, i.e. provides a medical certificate whenever this is required. Where the employer is of the opinion that the employee is abusing sick leave the employer should enter into a counselling process with the employee. The aim of these discussions would be to assist the employer in establishing the real reasons for the employee’s regular absence, which could either show that the employee has no valid reasons for not being at work (i.e. misconduct), or that the employee is truly sick (i.e. incapacity). Depending on the finding, the appropriate procedure in terms of misconduct or incapacity should then be followed. Where the employer is of the opinion that the employee is abusing sick leave, the employer should inform the employee that in future a valid medical certificate is required even where the employee is only away from work for 1 day. The employee should also be informed that where a doctor books the employee off for reasons provided to the doctor by the employee (the "As I was informed…” situation), such a medical certificate will not be regarded as valid and not accepted. The doctor’s certificate must indicate that his findings were based on a genuine examination he undertook and observations he personally made.
1. Suspension pending finalisation of a disciplinary investigation and hearing (with pay): The following steps should be followed, if not, the employee can claim that his suspension is an unfair labour practice.
Only suspend an employee where the alleged transgression is of a sufficiently serious nature to justify dismissal, if proven.
Only suspend an employee if there is reason to believe that he will, e.g., tamper with evidence, interfere with the investigation or intimidate company witnesses (i.e. there should be good reason to suspend the employee).
Suspension pending an investigation should always be on full pay. Should the employer not pay the employee during his suspension, the employer is breaching the employee’s contract of employment.
Suspension should always be carried out in a dignified manner.
Inform the employee that he may not have any contact with employees during his suspension and pending the hearing (if there is to be a hearing) and inform him whom he should contact should he require any documentation, information or need to speak to any one or more employees.
The employee should be given an opportunity to give reasons why he should not be suspended and these should be considered, before a final suspension decision is made.
The investigation should be completed as soon as possible: employees should not be suspended for an indefinite period.
2. Suspension as an alternative to dismissal (without pay)
Before this type of suspension can be enforced, the employee has to be found guilty of a serious transgression for which he may be dismissed.
There should be enough mitigating circumstances that warrant offering the employee suspension without pay as a sanction, as an alternative to dismissing the employee.
The employee should be informed that he has been found guilty of a serious transgression and that his dismissal would be appropriate, but that the company, due to the mitigating circumstances, would offer him suspension without pay as an alternative to dismissal.
The period of suspension without pay should be specified and should not be unreasonably long.
The employee should be provided with an opportunity to consider this alternative and to make a decision (e.g. 24 hours).
Suspension without pay under these circumstances will not amount to a breach of contract as the employee in effect consented to being suspended without pay.
Keep in mind that the employee may still challenge the findings of the disciplinary hearing.
If an employee gives proper notice in writing, his contract of employment is not terminated on the date of resignation but the employment relationship continues until the last day of the resignation period if the employee works until then (the ‘actual termination date’), or until the date on which the employer decides to release the employee from duty by paying him in lieu of notice. On the other hand, if the employee resigns without giving proper notice, he commits a repudiation (breach) of contract. This gives the employer an election to either “accept” the breach and thereby terminate the contract, or reject the inadequate notice and keep the contract alive (if needs be, until the end of the period on which notice would have expired). In the first situation, the employer’s “acceptance” ends the contract and constitutes a dismissal. In the second instance, the employer is free to hold a proper hearing before the end of the period on which notice would have expired, even in the employee’s absence, and to dismiss the employee if found guilty of the original allegation that resulted in the resignation (technically, the employer can also add “desertion” to the allegations). The employer therefore ultimately has three choices if the employee gives “short” (or no) notice, i.e. (i) to allow the contract to ‘run out’ without taking further action; (ii) to terminate it earlier by way of a disciplinary process; (iii) or to accept the employee’s short notice and end the employment relationship by acceptance. If the employee is no longer available for work, he is not entitled to claim salary from the date of departure (or “desertion”, which is what resignation without proper notice essentially amounts to). If the employer elects to keep the contract alive and to hold a hearing, the employee should be invited to attend the hearing, but if he does not, the process can continue in his absence.
The employee cannot simply make this allegation without being able to provide some proof of this condition, e.g. a medical report. If it has been established that the employee is really an alcoholic, the employee should be dealt with in terms of the incapacity process as alcoholism is regarded as an illness. The company should provide assistance to the employee by referring him to an institution like the AA or to the company’s Employment Assistance Programme (EAP), should there be such a programme. The employer is under no obligation to pay for the employee’s attendance at any programme, but may, e.g. offer to advance the rehabilitation costs by way of an interest-free loan, subject to a written agreement that the amount may be deducted in future from monies due to the employee. Appropriate conditions may be attached to the agreement, e.g. that the employee must attend all sessions, cooperate with the rehabilitation programme, provide a clean bill of health, etc. The employee should be informed that non-compliance could lead to dismissal should his conduct, attendance or work performance not improve (through the incapacity process).
Where the employee claims to be an alcoholic but is unable to substantiate this claim with medical evidence, the employer should inform the employee that his conduct, absence or poor work performance will no longer be accepted. If, e.g., the employee simply stays away from work regularly, and then claims that it is due to an alcohol problem, the employer should treat this as misconduct (AWOL), as there is no proof of the employee’s illness. If the employee is at work but not performing adequately, the employer should enter into an incapacity process with the employee, which could ultimately end in dismissal if performance does not improve adequately.
Ideally, however, managers should act pro-actively if they suspect that an employee suffers from a problem and encourage the employee to seek assistance before they land in trouble.
