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Published: Fri, 02 Feb 2018
What is a Essentialia
Essentialia of a contract is issues which must be clearly stated and clarified before any contract is initiated. Without these Essentialia the contract could be severely hampered or end up in court. Disputes can easily arise if not clearly stated.
Two parties decide voluntary to partake in the event, by signing the contract. If I buy a vehicle from the auto dealer I am not forced to buy but choose to buy, as I may leave at any moment and I can change my mind before the contract commences, and rather shop at another dealer.
I received poor service at McCarthy’s Centurion, and decided to walk out and take my business elsewhere.
Minimum two parties
For a contract to be valid there has to be a minimum of two parties, someone selling an item and somebody to pay for it, or someone needing a service and someone providing that service to the client. A person cannot sell his product if no-one is buying; also no-one can buy if no-one is selling.
Employee employer agreement
An employee and an employer agree at the first day on the job and on paper that the employee will be a fire fighter for the city. The employee will receive adequate training, skills and equipment to perform in his position. The employee will be turning out to incidents and standbys. The employee is acting on behalf of the Fire Chief of the municipality.
The employee and employer can negotiate or it can be predetermined that a contract will last for a certain time period:
5 years fixed term contract – will last for 5 years then contract ends, may be re-negotiated
Permanent contract – no final date decided as yet, either can end it with reason or penalty
Short term contract – 1 year or shorter, whereby the employer has a contract to fulfil
The employee is selling his time and skills to the employer for a financial return. If the employer does not pay, the employee tends to revolt and not function correctly or at all.
In the fire department all over the world is a type of chain of command, as is in most Para Military groups. The officer or top structure of the department has a say in how and when the employee performs his duties. Multiple employees can be directed or managed by a single supervisor to perform a complex exercise or procedure.
Formalities of a contract
It is good practise to enter into contract with every employee working for you. However the Basic Conditions of Employment Act has some requirements that are requested for employers.
More than 5 employees contracts must be signed
If less than 5 employees then no contract is needed.
An employer cannot employ an employee without a job description as his duties would change every day, from administrative officer to operational duties, to cleaner to management.
24 days sick leave will be granted to all employees at the first day of the New Year. If a public holiday is inside an employee’s leave cycle he is granted an extra day leave.
Any untaken leave days will be paid out to an employee on termination of contract.
Leave days may only accumulate for 4 years where after it must either be bought out or lost.
All staff at our company will receive 50 days sick leave per year, it can accumulate for a maximum of two years. 1 day sick leave will be allowed and no doctors note necessary but for a second day a doctor’s note is required. Staff will be deemed sick and at home, but no checks will be done and no abuse of sick leave will be tolerated.
Notice of termination
A member terminating his or her contract, as well as a member being terminated, will have a 30 day notice period. A 24hour notice period will only be accepted after the MD’s approval.
Notice must be given in writing and the company allowed making a counteroffer if it wants to.
Taking of leave and sick leave is allowed on the notice period.
As we are an office based company, we will be working mostly from 08h00 in the morning to 16h00 in the afternoons during the week, only in serious cases will we work on weekends or public holidays, when additional finances is available overtime would be allowed.
10h00 – 10h15 is tea break.
12h00 – 13h00 is lunch time.
15h00 – 15h15 is tea break.
As stated in the working hour’s section we will try not to work Sundays, however if the need arrives we will try to minimize the effect on our staff by utilizing the single staff first before utilizing the married staff, however arrangements will be allowed for staff that want to work these shifts and these members will be paid twice the standard rate.
Maternity leave will be granted for employees for a period of 3 months and half pay for the fourth months. No more than two consecutive pregnancies would be allowed in a 1 year cycle.
The mother will be allowed to decide when to start and stop the maternity leave.
As this is an office based company, members are allowed to leave and return to duty if the deem themselves fit for duty, the supervisor must be informed and agree to the situation.
Overtime will be reduced to the minimum to increase family time, but if the need arise; the staff will receive 2x a normal days pay.
Staff volunteering will be used first and lastly will the married staff be called upon.
From 12h00 to 13h00 is lunch hour whereby employees are allowed to leave the office or eat in at the company cafeteria, where subsidised prices will be paid and staff helped to minimize staff out of office time and downtime.
By reducing travel time we ensure the safety of our staff, by reducing their chance for accidents, rushing in and out, by supplying and supporting their needs in-house.
The company will prefer not to work night work, as it is dangerous, the cafeteria will provide food for the staff working at nights, and occupational health and safety department will ensure a safe night work environment for all staff.
Employees will be paid on the 26th of every month, where it falls on a Saturday or Sunday, the payment will be paid on the Friday before.
Money will be paid directly into the bank accounts of the employees.
As we have SAP and all staff has access to it, they can at anytime during the month print their own payslips.
Overtime, Sundays and Public holidays worked will be in the following month’s pay check.
Definition of an inherent requirement of the job is “an essential characteristic, quality or capacity that is required in order to fulfil the duties of a job.” 
Section 6(2)(b) of the employment Equity Act recognises situations in which characteristics could be listed as a requirement for certain jobs.
An example would be: A fire fighter is a physical role and thus requires upper body strength and stamina, if a person is unable to perform approved exercises upon request and does not meet the set requirements it cannot be seen as discrimination.
Human Resources: Information and Technology Generalist
Whitehead vs. Woolworths
Woolworths vs. Whitehead
Ms. Whitehead was capable of performing the job correctly
The company required a person in the position for 12 months to manage the day to day management of the position with certain skills and knowledge
With Ms. Whitehead the company would be profitable, but would have to pay for her pregnancy leave and a temporary fill for her position, so the company would be worse off.
With a person fulfilling the 12 month time frame the company would be profitable
If Ms. Whitehead worked to close to due date she could run into personal problems or create a problem at the work.
Risk for the company was increased as she could not be there for the full 12 months required, a replacement would or could do the function, but time would be lost and errors would be able to sneak in or is expected as this is a difficult / knowledgeable position.
In this instance customer preference does not change the incident
In this instance customer preference does not change the incident
Due to Ms. Whitehead’s pregnancy she could not be there for 12 months and thus was not offered a permanent position but a contract position.
The company requested a person with a reasonable surety that that person would be at work for the 12 months required, and that only serious illness or injury would prevent the person from being at work.
Ms whitehead was qualified for the position
Dr. Young also applied and was more qualified than Ms. Whitehead
Whitehead was offered the position
Ms. Whitehead later on showed interest in the position and the company reverted to her.
Offered the information that she was pregnant
Took into consideration the pregnancy when awarding the position
Had Ms. Whitehead not been pregnant would she have been appointed a permanent position
Due to the Pregnancy dr. Young was offered the job
A better candidate was appointed, but the pregnancy did play a role
Some of the rulings were overturned and some stood as is
The court ruling is seen as controversial.
The onus of proof
Employees must proof that they were constructively dismissed.
The employee must proof that the employer made the position or job intolerable to him, by providing proof of documents changing his job description, proving that of all the employees just his duties have been added to or altered.
By providing the dismissal letter, with the reasons for the dismissal, the employee is proving that he was dismissed and it was done by the company.
It lies with the employee to provide evidence of incidents where the supervisor or management acted out of character by physically or emotionally abusing the employee. If the employee is standing in a group and the employer degrades or speak negatively about the employee in front of his peers.
Intolerable working conditions
Due to pressure or fear, workers are afraid to voice their opinions and or objections in fear that they will forfeit their jobs or positions or be next in line for management’s anger.
Thus it is easier to resign than either continue with the abuse or continue with the working conditions.
An employee cannot be expected to work for 12 hours shifts and then not provide the employee with no seating arrangement.
An 8 hour office worker cannot fulfil his job, if he has no equipment or equipment of a much lower standard than needed to fulfil his duties.
Failure to use grievances
A company should have an approved grievance procedure and policy, for employees to follow if they feel that they are treated unfairly.
If management is openly and aggressively targeting the employee, then the grievance procedure need not be followed.
If the employer does not have a grievance procedure then the employee cannot proof that it would not have made a difference to have completed the procedure.
Justification for constructive dismissal
By making small or acceptable changes to the clients contract is not justification for a constructive dismissal.
The working conditions must change in so much a manner that it makes it unbearable or unsuitable to the employee. However if conduct on the side of the employer makes it so unbearable, then it is grounds for a constructive dismissal.
Dispute of right vs. Dispute of interest
Dispute of right:
A dispute of right is where the employer and employee or his union fight over matters where no-one is sure as to who is entitled and who is not.
A shift worker is working many long shifts a month, it is a dispute of right for the employer to demand that the employee work more shifts to boost production.
An office worker asked to evaluate another off site plant, without the means to get to the plant being defined or expressed by the employer.
Dispute of interest:
Collective bargaining is usually reserved for these disputes.
If the employee and its union requests an additional allowance for driving emergency vehicles to the scene and the employer is not prepared to pay the allowance it is a dispute of interest.
The emergency worker is by law forced to be registered by the Health Professions Council of South Africa (HPCSA), should the employee or the employer be paying for the registration as the employee only uses it in his official duties.
A fire fighter is only working 12 hour shifts and by law is not allowed to sleep on duty. But if the council does not provide for adequate resting facilities to spend 12 hours, who is to blame if the fire fighter sleeps?
From the first day the fire fighter is conditioned to wake up and respond to incidents in a short period, is he more or less productive if he is kept awake and not sleeping when there is no incidents.
Requirements for a fair hearing
For a hearing to be fair, an employee who is charged for an offence by his employer, must be given sufficient time to prepare a defence and he must be informed of the charges laid against him, this must be done in a timely fashion, giving the employee enough time to respond or to air his request for a time change.
Usually shift workers are at a disadvantage in this type of setting, as they usually only find out about such events when coming on duty after a certain time off. Meetings are scheduled and office workers receive adequate notice, but chain of command and time off, hinders the shift workers.
The employee must be made aware of the charge
The employee is informed by a letter or email from the employer that he is to be present at a meeting, and in this letter the time and charges will be laid. It does not necessarily need to be as complete or formal as in the court of law, but it should be readable by the employee, and it should in broad terms state the charges.
“You are to appear for a disciplinary hearing regarding charges of:
Accident involved with fire engine and tree on 17 January 2011
Dereliction of duties”
The hearing must precede the decision
In a disciplinary case it is best to first determine the guilty or not guilty before taking a decision, however there is cases where an employee has gone and done things that are outside the company’s rules and regulations.
A financial director employs family members without informing the MD to manage the storeroom and to then benefit financially from theft of stock and false sales. This might be seen as an offence that is generally accepted with immediate dismissal with no means of reconciliation.
The hearing must not be unreasonably delayed
The quicker a hearing is initiated, the quicker the resolve. Two years ago I initiated a case whereby a supervisor cut the locks on lockers and disposed of the items inside be it personal or work related. The case was reported, the investigating officer investigated, and still today the case is dead as no response other than “Documentation has been sent to the board for assessment, and further action will be taken after a decision is made.” I have thrown away the cut lock, which I had wanted him to replace as it was part of a set. I have no documentation or dated items as it was compiled and send in, without the option of making copies.
The employee should be present at the hearing
The employee involved in the hearing should attend the hearing as he is able to provide information to help strengthen his resolve. If he is not present he may say or feel that the hearing was not fair, and he might be right, because the hearing will expect him to be present and not showing up might deliberately reduce his chances as he can be labelled as a problem maker who doesn’t care for the hearing or department.
The employee should follow and understand what is being said and done in the hearing. To be able to answer questions if prompted and not add additional time taken to catch up on where they are and place extra strain on the hearing.
The employee must be permitted to have representation
An employee accused of wrong doing, must be permitted to have representation if requested in a formal hearing, however, the presiding officer may grant or deny access to professional help i.e. a lawyer. Usually a colleague or a union representative is allowed. The reason being that in a formal hearing, the employee might feel over powered or out of his depth. For the employee this might feel like an interrogation or court proceedings, thus it help to have a clear headed person to assist and help the employee in these cases.
The purpose of representation:
The “defence” and the “prosecution” are seemingly on equal footing as the employee now has a friend or colleague to help him.
Justice is done
The colleague or friend can assist the employee in answering or explaining difficult questions and answers.
Level playing fields
Employees usually do not often face disciplinary hearings and as such are not too familiar with the situation, and might easily feel or be intimidated.
The employee must be allowed to call and question witnesses
It would be unfair practise if an employee is accused of ill manners if the person laying the charges or giving testimony does not do so in person or in writing. The employee must be given equal opportunity to question the plaintiff and build his defence. A member of the public writes a letter to the fire chief complaining against a specific member’s attitude, if the complaint is not in writing, in person, or in a questionable manner. It would be unfair to the employee to use it in the hearing.
The presiding officers should keep the minutes
As the presiding officer is the final decision maker on the hearing, he should keep the minutes. As the prosecutor and the defence might interfere and add or omit important information. A voice recording of the event is also beneficial for both parties and for an appeal.
The presiding officer should be impartial
For a hearing to be truly fair, the presiding officer should be impartial to both sides. This might be more difficult for certain companies. On difficult hearings a employer might contract a person from outside the company to sit in as presiding officer. The presiding officer should hear about the hearing in the hearing, and not be told before hand or influenced by either of the sides.
If the presiding officer knows the accused employee pleasantly, he might change his opinion or find in favour of the employee, the counter argument is also true, if the presiding officer dislikes the employee me might well find in favour of the employer.
When a hearing is almost over and the presiding officer must give his decision, it is best if the officer does it in a two stage method. Whereby firstly he finds the employee, guilty or not, if not guilty then he makes a speech and lessons are learnt. However if the is guilty, then the presiding officer can refer to the employees personal record and make his recommendation from there.
The more transparent and basic the approach the more acceptable for everybody involved, if it is rushed and appears haphazard, the greater the chances of a mishearing and grounds for an appeal.
The two stage method is not a necessity but merely a suggestion.
Roles and responsibilities for forums:
The main function of the CCMA is to handle disputes between, employers and employees. And as they are a national body they have jurisdiction all over the country. All disputes must be referred to the CCMA if it is not heard at:
The CCMA have a dual mission:
Assisting employers with:
overseeing union ballots if requested
establishing collective bargaining structures
internal disciplinary procedures
affirmative action programmes
how to deal with cases such as:
Disputes about roles and responsibilities
Inter departmental conflict
Mediating and conciliation:
Mediating incidents where the employer and employee have registered an irresolvable dispute. This can be any of the cases as stated above.
If a dispute is registered the CCMA must appoint a commissioner that must try to resolve the dispute within a 30 day period, from the date the dispute is formally received. The commissioners task is to get the parties around the table by subpoena if need be and to get them to resolve the argument.
In section 157 of the Labour Relations Act, it states that the Labour Court has jurisdiction over any case decided by the act, and as such no other court has jurisdiction over it.
Many a discussion has taken place about jurisdiction, especially those equally shared with the High Court on matters of: Possible violations of fundamental rights entrenched in the second chapter of the constitution.
The labour court has exclusive jurisdiction in cases where relief can be obtained under the Labour Relations Act.
Labour Appeal Court
The Labour Appeal Court is the final leg of appeal in matters concerning the Labour Court, however in constitutional cases; cases can be referred to the Constitutional Court.
It is the responsibility of this court to ensure that the Labour Court and the High Court are addressing problems correctly and providing an avenue for appealing if it is necessary.
Labour Inspectors are appointed by the department of labour under the BCEA and EEA acts. Their role is to go out to companies and report any labour irregularities, which could be reported by an employee or just by inspection. Thus they are mandated with the powers to:
Enter any working premises
Interrogate staff and managers
Inspect the working conditions and environment
Report the findings to the department, in a detailed report, noting problems and citations.
They have a responsibility to the employees, who does not the power to fix problems and address wrongs.
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