Durban

Thursday 17^th November 2011

Negotiating skills

Durban

Thursday 26^th January 2012

Reducing Workplace Conflict & Stress (English)

Durban

Thursday 15^th February 2012

Employment Equity Implementation Update (Half-Day)

Durban

Wednesday 14^th March 2012

Please check our website regularly for updates regarding Public Training.

You can email owenadeninfo@mweb.co.za for venue, fees and in-house programmes.

Their view is that service delivery to the Sugar Industry is a journey of continual improvement.  The train was symbolic of the journey.  The Conference was facilitated by Leslie Owen of Owen Adendorff & Associates.

Our picture shows the team members who spent their Strategic Conference on a train in the picturesque KZN Midlands.

It may be of interest to read the entire judgment of the Labour Court as it concerns a common problem at our workplaces. This problem is the reporting for work under the influence of alcohol. It sets outs the distinction between alcoholism and non alcoholism.

Must an employer automatically approach an employee who reports for duty under the influence of alcohol as a possible alcoholic?

What does an employer do if the employee does not raise alcoholism as a defence? The judgment indicates that an employer must be careful in inferring that an employee who reports for work in an inebriated state is an alcoholic.

Reporting for work in such a state is an act of misconduct. Where the job that the employee performs is highly skilled, responsible, or hazardous, dismissal for a first offence in justified.

The defence was also raised that the employee had not committed an offence as the employee had not actually commenced working for the day. The court said this was an illogical defence.

In my view it’s a bit like being in the position where you know your bus driver is a bad driver but you allow him to drive as he has not had an accident yet. The emphases is on the yet.

This judgment makes clear that an employer has an obligation to take remedial action before such an accident takes place.

Although the judgment does not set out the criteria for determining whether a employee is guilty of being drunk at the workplace other judgments have indicated that there are three criteria that can be used by an employer.

The first relates to observation of the behavour exhibited. Is the speech slurred, are eyes bleary, is the walk unsteady, is there a smell of alcohol?

The second is that of a more objective chemical nature. Was an alcometer, or breathalyzer used or a blood test given?

The third is can an employee perform his/her job satisfactorily and in the normal acceptable way?

The judgment in the Transnet matter and the three criteria approach should guide employers and employees who are involved in alcohol related incidents.

By Leslie Owen

“A disciplinary enquiry is not a workplace trial.  It is meant to be a platform where and employer gives an accused employee a right to put across his own version and be heard before a decision is taken on an alleged misconduct.”

In addition, employers should “…………. adopt a simple procedure in their disciplinary proceedings and not the criminal justice model.”

The award also confirms that “The employment relationship is founded on a subordinate relationship between the employer and employee and both the L.R.A and the labour Courts recognize the employees are under a duty to obey lawful and reasonable instructions of their employers”. “Smith and Nashua East London (2010) 31 ILJ 1751 [CCMA]”

There are 2 exceptions to holding a simple disciplinary enquiry.  The first relates to the situation where there is a disciplinary procedure which has been negotiated as a collective agreement between a trade union and an employer.  If the agreement specifies the manner in which a disciplinary enquiry is to be3 held, those chairing hearings must follow the agreement even if it follows the criminal procedure.

The second relates to the situation where the employer has a formal policy on discipline which sets out the manner in which a disciplinary enquiry is to be held. An employee’s contract of employment normally states that the employee is bound to observe the policies of the employer.  This means that the policies of the employer became conditions of service of the employee.

The employer and employee are bound to follow such policies .

Please contact us with any queries you may have.

Leslie Owen

031 7003151

owenaden@mweb.co.za