Labour law expert Ivan Israelstam says case law should guide the formation of new workplace rules.
Since 1995 the Labour Relations Act (LRA) and Basic Conditions of Employment Act have been replaced with entirely new versions. However, as large as this body of legislation is it often falls short when it comes to detail. For example, the LRA requires employers to prove that a dismissed employee’s conduct must have been so gross as to render a continued employment relationship intolerable. However, the LRA neither defines what would make an employment relationship intolerable nor what degree of behaviour can be considered gross.
Therefore, employers and employees need to look to case law for more detailed guidance as to what the law means and what would be fair in specific circumstances. In addition, the employer’s own rules and terms and conditions of employment can, within limits, play a significant role in determining what discipline is and is not fair.
For example, in the case of Rubin Sportswear vs SACTWU and others (2004, 10 BLLR 986) the employer took over a business and then introduced a rule changing the age at which employees were to take retirement. The Labour Appeal Court found that the word “normal” means “the way things are normally done” and that the employer could not unilaterally change what was normal. This principle applies unless the law itself creates a ‘new normal’.
It is therefore imperative that employers have their rules reviewed in line with the latest interpretation of the law by the courts and in line with other new legislation such as the new laws combatting the spread of Covid-19.
The Covid-19 pandemic has drastically changed circumstances at every workplace. For example, during the ‘old normal’ the completion of work often depended quite strongly on employees working in close proximity. Under the ‘new normal’ employees’ lives and the health of the business depend on employees keeping their social distance.
This has introduced complexities into the workplace because employers, for instance, are legally bound to implement and enforce coronavirus-combatting workplace rules. But managers and staff alike are still trying to adapt to these new rules while still trying to be efficient and productive. As a result, the employer has to strike a delicate balance between strictly enforcing health rules while educating employees on these rules and how to implement them without sacrificing productivity, and all this must often be done with stretched resources in a highly stressed environment.
These complexities require management, more than ever, to avoid disciplining employees while the manager is angry and find a more balanced approach to asking employees to correct their behaviour. If an employee hugged a colleague or forgot to sneeze into the crook of his elbow, for example, be measured in the way you address the ‘breaking’ of the rules, implementing the corrective action in a calm, effective and legally compliant manner. Also, always seek professional assistance where this balancing act becomes problematic.
The standard clauses in employers’ disciplinary codes are no longer sufficient because provision needs to be made for corrective action for Coronavirus-related misconduct.
Should employers fail to update their rules, disciplinary codes and terms and conditions of employment in the light of the new normal that Covid-19 has brought they will be caught short when it comes to implementing discipline and dismissal.
It can be a laborious and complex task for an employer to draw up a comprehensive set of rules. However, dealing with the consequences of having outdated rules can be far more onerous for employers at the CCMA, bargaining councils, Labour Court and criminal courts. If employers are not in a position to take charge of this vital task there are experts they can use who can take over the pain of carrying it out and making sure it is done properly.
