Can an Employee Who Refuses Vaccination be Fired?

“This virus is unprecedented in our lifetime and requires an unprecedented response” (António Guterres, UN Secretary-General)

Most of us will celebrate the day we are offered a COVID-19 vaccination, but here in South Africa as overseas it seems inevitable that a significant number of people will refuse to be vaccinated. The reasons given for this stance have been many and varied, some mainstream and reasonable, others less so.

Perhaps some of those refusing will reconsider if and when they find they are denied opportunities available to those vaccinated – travel restrictions spring to mind but another example could be establishments like hotels and restaurants getting sticky on the issue if customer demand for safety grows.

A knotty problem for employers

Nevertheless, there will still be many “refusers” – all convinced that they are being entirely reasonable in refusing – and they could pose a knotty problem for you as an employer. On the one hand you have both legal and moral obligations to keep your workplace as safe as possible, but on the other hand refusers have their own strong legal and moral rights, both as citizens and as employees. For example, health, bodily integrity and privacy concerns, and concerns related to religious and cultural beliefs, raise issues of constitutional protection.

It boils down to a series of competing questions. Can you fire employees for refusing vaccination? Can your vaccinated employees and/or health officials hold you accountable for allowing unvaccinated employees into the workplace? Can employees who are vaccinated at your behest hold you liable if they suffer adverse reactions or health problems?

Between a rock and a hard place…

That all leaves employers walking a tightrope between competing sets of risks and employee rights, with the added complication of statutory requirements to provide a safe working environment. 

There is unfortunately no clarity on what line our courts will take when addressing the many disputes that will inevitably arise, but amidst all the speculation there does at least appear to be broad consensus that a case-by-case approach is probably the safest and the fairest way to proceed. 

That suggests that the most prudent course, at least until there is some clarity from the courts, is to tread carefully and lightly, and to act strictly in line with the general principles of our employment laws. 

Some general principles to bear in mind
  • Government has made it clear that despite our unprecedented National State of Disaster, vaccination is voluntary. It will try to persuade us to get the jabs, but it won’t force us to. So, expect no intervention from that source other than on the educational side – see for example “COVID-19 Coronavirus vaccine myths and facts” on the Government Information website. 
  • The fundamental employment law principle of fairness in both procedure and reasons for dismissal will remain critical to the outcome of any legal dispute.
  • Beware “automatically unfair dismissal” in the form of discrimination on any “arbitrary ground”, specifically including grounds such as “…age, disability, religion, conscience, belief, political opinion, culture…” – any or all of which might underlie an employee’s objections to vaccination. 
  • Amongst other constitutional protections we all have the right to “bodily … integrity” so it is vital to adequately address individual health concerns, such as those around adverse reactions and side-effects. Ongoing reports of some vaccines being paused from use internationally (at date of writing, said to be an over-reaction by the countries in question) will contribute to these concerns, and the cautious will need reassurance.
  • As always, and without losing sight of the need to address each individual employee’s concerns on a case-by-case basis, aim for agreement and consensus in the workplace via consultation. A full risk assessment specific to your workplace, and the educational resources mentioned above, could be invaluable here. 
  • Set a workplace policy on vaccination – contravention of a fair and reasonable policy will lay the groundwork for any charge of misconduct. Decide whether a flexible policy would suffice or whether mandatory vaccination is essential. Consider every possibility and circumstance – for example, can concerned staff be allowed to work remotely? Would employee fears be alleviated by access to specific medical advice? Do you operate in a sector (health care or retirement perhaps) where vaccination will be considered essential? And so on…

Every business will have its own particular business activities, needs and employees. So most importantly, take advice specific to your workplace!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Domestic Workers and Employers: The New Injury and Illness Cover Explained

“Domestic employees” are now covered under the Compensation for Occupational Injuries and Diseases Act (COIDA) and will now be entitled for compensation from the Compensation Fund in the event they are injured or contract diseases while on duty.

The new benefits

Note: The benefits set out below are recorded in summary only and awards are subject to conditions and to limits; so seek specific professional advice in need. 

Compensation payable to a qualifying employee by the Fund

Temporary Total Disablement (TTD) 

This is for an employee booked off for 4 days or more by a doctor to recuperate, maximum 24 months

Permanent disablement lump sum    

A permanent disablement lump sum is paid to an employee who has received a final medical report from the treating doctor indicating that the employee has reached maximum medical improvement. The permanent disablement should be 1 – 30% disablement for the Compensation Fund to pay this benefit. 

Permanent disablement pension   

The permanent disablement pension is paid to an employee who has received a final medical report from the treating doctor indicating that the employee has reached maximum medical improvement. The permanent disablement should be 31 – 100% disablement for the Compensation Fund to pay this benefit. 

Compensation payable to dependants of employees who died as a result of injury on duty or occupational disease

Under this heading there is cover for some funeral expenses, a widow’s lump sum award, a widow’s pension award, a child pension award, a partial or wholly dependency award payable to parents or siblings in the absence of a surviving spouse or child.

Orthotics and Rehabilitation 

Qualifying applicants can claim for youth bursaries, a “Return to Work” programme, “assistive devices” like wheelchairs and prosthetics, and rehabilitation and re-integration programmes.

Medical benefits

Medical benefits/claims and chronic medication are provided for in this section.

Employers – you must now register, submit annual returns, and pay annual tariffs

All employers of domestic employees are now obliged to register as employers with the Compensation Fund and to submit the necessary returns. You will be assessed and billed annually. To calculate how much your annual tariff payment will be, take the employee’s annual salary, divide it by 100 and multiply it by the current “assessment rate” applicable to domestic employees (1.04) – e.g. at a monthly salary of R4,500 the calculation is: R4,500 x 12 / 100 = R540 x 1.04 = R561-60 for the year. 

Although there is reportedly no deadline for registration set at the moment, keep an eye on the media as this is bound to change. 

For more detail, download the Department of Employment and Labour’s “Notice on The Registration of Domestic Worker Employers in Terms of Section 80 of The Compensation for Occupational Injuries And Disease Act As Amended” from GPW Online. See page 9 for the registration procedure and “Industry Classification” (get this right, high-risk industry employers pay a lot more!), page 10 for the ROE (Return of Earnings) and assessment procedures (plus how to register online) and page 11 for the claims submission process. The necessary forms are on pages 12 onwards. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Can Employees Resign to Dodge Disciplinary Hearings?

“…an employee who gives short notice in violation of the contract … may be obliged to serve out the notice period” (Quoted in the judgment below)

It’s an age-old workplace dodge – threatened with a disciplinary hearing and fearing a guilty verdict, an employee resigns with immediate effect and walks out the door with a defiant “Well that’s it, you just lost your right to discipline me. See you around, loser”. 

No longer! Our courts have dealt with this issue often in the past in various guises and with conflicting outcomes. Fortunately, a new Labour Appeal Court (LAC) decision has finally settled the matter.

The bank employee and the fraudulent cheque charge
  • A bank employee was given notice to attend a disciplinary hearing on a charge of misconduct after a R30,000 cheque was cashed without proper procedures being followed (the cheque was later found to have been fraudulent, and the bank lost R30k). 
  • She resigned “with immediate effect”, presumably fearing a guilty verdict and the risk of her name being put onto the Banking Association of South Africa’s REDS (Register for Employees Dishonesty System) database.
  • The bank however insisted that she serve the four-week notice period in her employment contract and convened a disciplinary enquiry within the notice period.
  • The employee and her attorney arrived at the enquiry to argue that her immediate resignation had ended the employment relationship and that the enquiry could not therefore continue. When the chairman rejected this argument, she left the enquiry to proceed in her absence.
  • Found guilty of misconduct and summarily dismissed, the employee approached the Labour Court which agreed that the resignation had terminated the employment. It accordingly ruled the dismissal null and void. 
  • On appeal however the LAC found that the employer had been entitled to enforce the contractual four-week notice provision, that the employment relationship therefore still existed at the time of the hearing, and that the dismissal was accordingly valid.
Employers: Be clear and be quick!
  • You can choose to enforce the notice period provision, or you can choose to waive it. If you are found to have waived it, the employment relationship will have ended immediately. To avoid any risk of that, make it crystal clear to the employee that you are enforcing the notice period.
  • Secondly, don’t drag your feet on holding the disciplinary enquiry – you must act before the notice period expires and the employment relationship ends.
What if there is no notice period in your employment contract?

In that case, said the Court, the notice periods in the Basic Conditions of Employment Act (BCEA) would apply –

“(a) one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c) four weeks, if the employee

(i) has been employed for one year or more; or

(ii) is a farm worker or domestic worker who has been employed for more than six months.”

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

New National Minimum Wage and Earnings Thresholds From 1 March 2021

(N.B. The increases highlighted below are extracted from the Employment and Labour Minister’s announcement of 9 February 2021, and emphasis has been supplied where helpful in enabling quick identification of your employment sector. Comment is in square brackets)

  • “The National Minimum Wage (NMW) for each ordinary hour worked has been increased from R20,76 to R21,69 per hour [a 4.5% increase] for the year 2021 with effect from 1 March 2021.

    It is illegal and an unfair labour practice for an employer to unilaterally alter hours of work or other conditions of employment in implementing the NMW. The NMW is the amount payable for the ordinary hours of work and does not include payment of allowances (such as transport, tools, food or accommodation) payments in kind (board or lodging), tips, bonuses and gifts.
  • Following a transitional phase, the farm worker sector has been aligned with the NMW rate of R21,69 per hour [a 16% increase]. 
  • The domestic workers sector will be entitled to R19,09 per hour [a 23% increase] and could be expected to be aligned with the NMW when the next review is considered [i.e. 2022]. [Use the Living Wage calculator to check that you are paying your domestic worker enough to cover a household’s “minimal need”].
  • In line with the Basic Conditions of Employment Act (BCEA), the increase in the NMW will mean that wages prescribed in the sectoral determinations that were higher than the NMW at its promulgation, must be increased proportionally to the adjustment of the national minimum wage. Therefore, the Contract Cleaning; and Wholesale and Retail Sector will also have their wages upwardly adjusted by 4,5 percent.
  • In another development, the Minister has also, in terms of the BCEA earnings threshold, revised the rate from R205 433.30 to R211 596.30. Chapter 2 of the Act deals with the regulation of working time, limit on the duration of an employee’s working week and to prescribe a rate at which an employee should be paid to work outside normal working hours among others.
  • Employees that earn in excess of this rate per annum are excluded from sections 9, 10, 11, 12, 13, 14, 15, 16, and 17(2) and 18(3) of this Act from 01 March 2021. These sections protect vulnerable employees and regulate amongst others, hours of work, overtime, compressed working time, average hours of work, meals interval, daily and weekly rest period, pay for work on Sundays, night work, and work on public holidays.”

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Cannabis in the Workplace: Can You Dismiss?

A recent CCMA (Commission for Conciliation, Mediation and Arbitration) ruling, in which an employee’s dismissal for smoking cannabis before work was set aside and he was re-instated, has garnered a lot of media attention.

Unfortunately, some of the resultant articles and headlines may have given the inaccurate impression that employees are now free to report for duty under the influence of the intoxicant. In fact, although the employee in question was indeed re-instated, he was still held to be in the wrong, and sanctioned with denial of back pay and a 12-month final written warning. 

Moreover, a previous (2018) CCMA ruling had confirmed the dismissal of employees in broadly similar circumstances. 

It seems that each case will be treated on its own merits so let’s compare the facts in these two matters –

2018: Dismissal upheld
  • Employees in a particularly dangerous workplace environment (involving heavy machinery, vehicles, and timber and hence a risk of fatality), had a zero-tolerance policy when it came to workplace safety and substance abuse. 
  • All employees were tested for cannabis use and four who tested positive were dismissed after admitting that they had smoked the drug at home. They knew of the zero-tolerance policy and of the dismissal risk for contravening it.
  • Their dismissals were upheld by the CCMA as being an appropriate sanction in the circumstances. 
2020: Dismissal too harsh
  • An employer’s Code of Conduct and Discipline prohibited anyone from working under the influence of alcohol or drugs, a policy strictly enforced as a compliance issue under the Occupational Health and Safety Act. The Code recommended dismissal for even a first offence.
  • An employee (a “picker” in a cosmetics and fragrance business) arrived late for work with red and watery eyes, tested positive for cannabis use and admitted having smoked a “zol” (cannabis cigarette) some two hours before reporting for work.
  • After a disciplinary hearing he was dismissed, but the CCMA re-instated him on the basis that although he had tested positive for cannabis there was no evidence that his ability to perform his work had been affected. Indeed, his employer had allowed him to remain at work that day, albeit in a “safe” environment. “The problem with a charge of being under the influence of drugs” said the Commissioner “is that there has not been any scientific method of determining whether a person is under the influence of the drug such that there is an impairment in their performance.”
  • “In the circumstances dismissal was too harsh and was not an appropriate sanction”. As mentioned above the employee was not let off the hook but his sanction was reduced from dismissal to loss of back pay and a final written warning. This on the basis that he was aware of the policy prohibiting the use of drugs on duty and “It was irresponsible to take a substance that may have the ability to impair his mental or physical abilities.”

Clearly every case will be different, but at the very least employers should have in place workplace policies appropriate to their particular business conditions and requirements.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

© LawDotNews

Our Brave New World: Using Zoom for Retrenchment Consultations

“O brave new world” (Shakespeare)

The COVID-19 pandemic will doubtless lead to many new developments on the legal front.

For example, with widespread employee retrenchment now an unfortunate reality in our struggling economy, all employers, employees and trade unions should know of an important new Labour Court decision validating the use of remote conferencing for the retrenchment consultation process. 

The consultation process, rudely interrupted
  • An employer decided in January 2020 that it needed to restructure its business operations, which prompted it to contemplate dismissal of employees based on operational requirements. 
  • The next step in terms of the Labour Relations Act was to enter into a meaningful consultation process with employees and/or their representatives, aimed at discussing and seeking consensus on possible alternatives to retrenchment, minimizing dismissals, severance pay etc. 
  • This being a large scale retrenchment proposal the employer issued a formal notice inviting consultation and requested facilitation of the consultation process. A facilitator was appointed and several physical meetings were held. 
  • Before the final consultation meeting could be held however the process was rudely interrupted by the declaration of a National State of Disaster and the consequent lockdown and restrictions on gatherings. 
  • The Commission for Conciliation, Mediation and Arbitration (CCMA) proposed methods by which the process might continue, including usage of Zoom, but the trade union in question refused to participate via Zoom and the employer proceeded with the meeting in its absence. 
  • When the employer then issued notices of retrenchment, the union applied urgently to the Labour Court to declare the process procedurally unfair.
Our “new normal”

“With the advent of the outbreak of the Covid-19 pandemic, the “new normal” presented itself” (extract from Labour Court judgment)

Commenting on the irony of the union complaining about “the efficacy and reliability” of Zoom whilst using it to make its own urgent application to court, and noting that the facilitator, with “powers to make a final and binding ruling on procedure”, was not averse to using Zoom for the meeting, the Court found that the union had refused to participate in the consultation process through no fault of the employer’s. 

As the Court put it: “With the new normal – lockdown period during Covid-19 pandemic – zoom is the appropriate form in which meetings can take place. What is involved in this period is the health and safety issue … It is a necessary tool to ensure that restrictions like social distancing as a measure to avoid the spread of the virus are observed.”

Accordingly there was no procedural unfairness and the union’s application was dismissed. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

, , ,

Unemployed, Can’t Pay Bond and Credit Instalments? “Credit Life Insurance” May Save You

If you are one of the many employees retrenched or put on short pay or unpaid leave as a result of the COVID-19 crisis and lockdown, you will be wondering how to cover the monthly instalments on your mortgage bond and other credit agreements. You have no doubt heard of the “payment holidays” banks are offering, but remember that although these are a lot better than losing your house, car etc, they are no free lunch. Interest and fees will still be building up.

Credit life insurance is not just death cover

That’s why you need to check right now whether or not any of your credit agreements are covered by “credit life insurance”. Many people don’t even realise they have this cover in place, and those that do may look at the “life” part of the name and think “well that’s no good to me or my family, I’m unemployed not dead”. The good news there is that most policies cover a host of other events leaving you unable to pay instalments – see below for more.

Do you have cover?

You may well have this cover in place without even realising it because it is commonly required when you take out any form of credit – think mortgage bonds, vehicle finance, credit cards, retail credit (store cards etc) and so on. 

If you aren’t sure, check your latest bond or credit statement for any sign of an insurance premium deduction (it may be called “balance protection” or the like). Then contact the bank (or whichever credit grantor you are with) and ask them to check. You may not have it for example if at the time you ceded another life policy to the credit grantor.

What are you covered for?

Check what the terms of your particular policy are, but the minimum cover required by National Credit Act Regulations (which only affect credit agreements entered into on or after 9 August 2017) is –

  • Death or permanent disability: The outstanding balance of your total obligations under the credit agreement is covered.
  • Unemployment or inability to earn an income: You are covered until you find employment or are able to earn an income, with a maximum of 12 months’ instalments. 
  • On temporary disability: You are covered until you are no longer disabled, with a maximum of 12 months’ instalments.

Exclusions – the Regulations allow a long list of exclusions to be incorporated in your policy so check which apply to you. Most of them are common sense – for example lawful dismissal, retirement or resignation from employment – but if you are told that a particular exclusion applies to you and you don’t agree ask your professional advisor for advice before conceding anything. Employers may be able to assist in this regard when structuring crisis outcomes with staff, but remember to do so only after taking your own legal advice! 

Self-employed people and pensioners should check what cover they have under their particular policy, and what terms apply to them.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews