Smoking in the workplace

I do believe that most businesses (employers) have a smoking policy in place. Smoking in the workplace is governed by the Tobacco Products Control Act, Act 83 of 1993. The framework for such smoking policy is set out in government notice GNR975 of GG 21610 of 19 September 2000. 

In terms of item 6, an employer must ensure that no person smokes anywhere other than in the designated smoking area in that work place. Item 7 requires that an employer must ensure that employees who do not want to be exposed to tobacco smoke are protected from tobacco smoke in that workplace and employees may object to tobacco smoke in the workplace without retaliation of any kind. An employer, may totally prohibit smoking at its work place, therefore, as far as our law stands, there is no right to smoke at the workplace.

Thus, the employer has to ensure that the smoking policy complies with said framework. Thus, employees have to protected from tobacco smoke in the workplace.

We have to ask ourselves the following question: If the employer fails to implement a smoking policy, which complies with the above framework, or if the employer fails to react to the complaints of employees regarding smoking in the workplace, and said employee resigns from employment, can it be said that such failure constitute constructive dismissal?

The only case law that I could find on this particular topic is the matter of Naude and Stealth Marine (2004) 13 MEIBC 6.13.3. 

The applicant had respiratory problems and previous serious health conditions, which included asthma attacks as a result of smoking and she had an allergy to cigarette smoke.
 

The employer’s premises had no designated smoking areas. The reception area was situated downstairs and the administrative offices were situated upstairs. The factory was outside. Staff smoked in the corridors, in the reception area and in their offices upstairs. Smoke often trickled down from the upstairs offices, into the reception area.

Within two weeks of commencing employment the applicant developed a reaction to the cigarette smoke and got sick. The applicant had a tight chest and difficulty breathing and developed nausea, headaches and light-headedness. She complained about the smoking to her boss and informed the employer about her allergy and the fact that she would develop serious health problems if staff did not stop smoking inside the building. Her supervisor said she would address the problem, but the smoking in open areas persisted. To make matters worse, her superior promised to ask the staff to stop smoking inside the premises, but he himself continued to smoke inside. The staff also continued to smoke inside the building. The applicant complained to her direct supervisor every day and on 29 April the applicant left early, as she could not tolerate the smoke any more. When she returned on the 30th, four people were again smoking inside the building. The applicant advised her boss that she had to leave, as she was unable to continue to work under the circumstances.

The commissioner found that, in terms of the Tobacco Products Control Act 83 of 1993 smoking is not allowed in offices or in public areas in workplaces. Smoking is only allowed in designated areas and it is the duty of an employer to ensure that the Act is complied with. On the applicant’s version the respondent failed to implement antismoking legislation in the workplace. The employer’s actions were therefore unlawful in allowing employees to smoke inside the administration building. It is important to note that the applicant in this case was not the average, healthy, non-smoking employee who was indignant at the fact that her employer was not complying with antismoking legislation. The applicant was previously a heavy smoker and had developed serious respiratory problems and an allergy to cigarette smoke as a result of her habit. The applicant developed debilitating physical symptoms when exposed to cigarette smoke. On the evidence before the commissioner, the respondent created an intolerable working environment for the applicant. The applicant was unable to be productive.

In the view of the commissioner, the applicant has proved that she was dismissed and that the respondent created an intolerable situation at the workplace that forced her to resign.

The warning is clear: Employers have to take smoking policies seriously, especially the complaints of non-smoking employees.

ESKOM - Failure to provide sufficient electricity

During 2008 we have all experienced Escom's implementation of load shedding. It affected the whole of the country - businesses and individuals alike. Fortunately, Eskom has not carried out its load shedding schedule since May 2008.

The World Cup Soccer 2010 is around the corner, and as at today, we have 137 days to go for the big kick off. Millions of international visitors is expected to arrive in South Africa within the next few weeks before the World Cup, and many more during the World Cup.

Rumour has it that Eskom has not managed to increase the availability of sufficient electricity supplies, and it has been suggested that Eskom is considering the implementation of load shedding prior to the commencement of the World Cup and even during the World Cup.

Past experience has shown that small and big businesses were all affected by load shedding. Some businesses have closed down completely, which lead to employees losing their jobs. Other businesses were forced to retrench some of its employees due to operational requirements.

Other problems experienced, just to name the most common, were staff reporting late for work and employers refusing to pay salaries to their employees for the time lost due to electricity cuts or load shedding.

Unfortunately, employers cannot refuse to pay salaries to its employees for time lost due to electricity cuts or load shedding. The employees are not to blame for this. The employees, although unproductive during electricity cuts or load shedding, have reported for duty, have made available their services to the employers, and thus they have to be remunerated for those hours lost. The employer is not permitted to deduct these lost hours from the salaries of the employees.

The question is whether alternative solutions are available to the employers to, at least, try and increase productivity. Some employers have considered asking employees to take their lunch breaks earlier during electricity cuts or load shedding, some even has gone so far as to ask employees to go on extended lunch breaks, and others have even considered asking employees to work extended hours in order to make up for lost productivity.

The following should be considered:

The Basic Conditions of Employment Act provides that employees must work 45 hours per week. That means, if the employee normally works from Monday to Friday, 9 (nine) hours per day. This calculation excludes lunch hours, which means that employees are not getting paid for their lunch breaks.

The Act further provides that the employee is entitled to a lunch break after 5 (five) hours of work. It further stipulates that employees must be remunerated for lunch breaks during longer than 75 (seventy five) minutes.

If employees are requested to work longer hours, it must be remembered that overtime remuneration of 1.5 the normal rate must be paid to employees.When work on a Sunday is required, the overtime rate of 2 times the normal rate will have to be paid to the employee, provided that the employee does not normally work on a Sunday.

Certain employers, such as the mining industry which is already a 24/7 industry, will never be able to make up for lost production, and thus the above considerations will not help them.

Depending on the nature of the business of the employer, the above considerations might be helpful in an attempt to make up for lost production.

However, the implementation of these alternatives is not a guarantee that the employer will not suffer from increased costs of production. 

Resignation

Most of us have entered into employment agreements with our employers or employees. Most employment agreements contain provisions regarding the termination thereof, especially concerning the notice period of resignation.

The question is now what can an employer when an employee resigns without giving the notice required in terms of the employment agreement? Can an employer, in such circumstances, claim the employee's salary in respect of the notice period not worked?

The Labour Court was requested to answer these questions in the matter of South African Music Rights Organisation Ltd v Mphatsoe (2009) 7 BLLR 696 (LC).

The facts of this case can be summarised as follows: Mphatsoe's employment agreement provided that his employment was terminable on one calender month's notice. When he returned from leave on 8 January 2008, he handed in his letter of resignation, which stated that he gave notice and that he would leave on 31 January 2008. SAMRO informed him that his notice did not comply with the provisions of his contract, because the notice was supposed to run from the first day of the month. It was further argued by SAMRO that his notice would only become effective on 1 February 2009 and that the notice period would therefore expire on 29 February 2008. Mphatsoe conceded that his notice period would not expire on 31 January 2008, but he argued that the notice period would expire on 8 February 2008. He then left SAMRO on 8 February 2008.

SAMRO proceeded to approach the Labour Court for an order in terms of Section 77(3) of the Basic Conditions of Employment Act, Act 75 of 1977, declaring that Mphatsoe's notice on 8 January 2008 was ineffective to terminate his employment agreement, that the employment agreement only terminated on 29 February 2008 and that Mphatsoe breached the agreement when he left work on 8 February 2008. SAMRO further sought damages in the amount of R 185-12, namely the amount Mphatsoe would have received in remuneration had he remained in employment until 29 February.

Regarding the requirement of a "calender month's notice" the Court agreed with the decision of the Labour Appeal Court in the matter of Edgars Consolidated Stores Ltd v Federal Council of Retail and Allied Workers Union (2004) 25 ILJ 1051 (LAC) which held that a "calender month" does not necessarily start on the first day of the month. What is required is to ascertain the intention of the parties to the agreement by way of interpretation. The Labour Court thus proceeded to analise the employment agreement as a whole, and reached the conclusion that by using the term "calender month" in the notice clause, the parties had clearly intended a different meaning, namely, that notice would take effect from the first day of the month and run to the last day of the month. Thus, it was held that Mphatsoe did indeed breach his employment agreement when he failed to work until 29 February 2009.

As regards the damages, the court held that an employer could not rely on the Basic Conditions of Employment Act, 1983, anymore. Thus an employer seeking damages due to an employee's failure to work the contractual notice period should prove such damages. The court observed that it is conceivable that the failure to work the contractual notice period could, in certain circumstances, not cause any damages at all, whereas in other circumstances the damages concerned could be well in excess of the remuneration the employee would have earned. SAMRO did not manage to prove its damages, and thus the claim for damages was dismissed.

Note: It is conceivable that an employer may accept the resignation of the employee, even if such notice does not comply with the provisions of the employment agreement. It is, further, conceivable that an employer may even inform the employee that he accepts the notice with immediate effect, that the employee must immediately leave his work place, and that he will still receive his full salary for the notice period.

Business take-overs - A good or bad thing???

South African businesses are struggling in today's economic climate. Many businesses are faced with the question - do we liquidate the business or do we sell the business as a going concern?

The worst of the negative effects of business closures is the wholesale loss of the jobs of the employees of the business.

Sometimes the struggling company is taken over instead of being forced to go into liquidation. The advantage of such a takeover is that it can avoid the loss of jobs caused by a liquidation.

However, the Labour Relations Act (LRA) strongly discourages takeovers (albeit unintentionally) by prohibiting dismissals for reasons related to a takeover as a going concern. The effect hereof is that would-be rescue deals usually fails due to the fact that partial retrenchments, resulting from the rationalisation necessitated by takeovers, are prohibited.

Where employees are illegally retrenched for reasons related to takeovers, it is often difficult to establish whether it is the old entity that is at fault or whether the new entity should be taken to task in court.

This is because the date of the takeover is often unclear. If the employee was retrenched before the takeover he/she should logically take the old entity to court, but what happens if the old entity does not have the assets necessary to pay the compensation ordered by the court?

Section 197(2)(c) effectively allows the employee to sue the new employer even if it was the old employer who retrenched the employee unfairly.

If the retrenchment takes place after the transfer, only the new employer can be sued.

However, establishing the date of the transfer for purposes of labour law can be tricky. Is the takeover date: the date on which the new entity began running the business? Or is it the date on which the buyer and seller signed the contract? Or the date that the buyer and seller designated in the contract as the date on which the sale took effect or would take effect?

This key question arose in the case of Business Design Software (Pty) Ltd & Another v Van der Velde (CLL Vol. 18, March 2009).

The employee (Van de Velde) was a general manager of Business Design Software (BDS) when it was bought by a company called AST Group.

Two years later, AST Group decided to sell its BDS division to the MD of BDS, Mr P Smulders.

A few days after this decision was made, Smulders brought his brother into the business at senior level. Smulders then decided that Van der Velde was no longer needed in the business.

A month later, Van der Velde was retrenched after turning down an offer of a post of administration manager.

Three days after the retrenchment, AST signed the agreement of sale of BDS with a company called WGN, the entity through which Smulders bought BDS.

Although the sale agreement was signed on April 3, 2003, the agreement stated that the sale took retrospective effect on January 1, 2003.

Van der Velde took the retrenchment to the Labour Court on the grounds that he had been automatically, unfairly dismissed for a reason related to the takeover of a going concern.

He cited section 187(1)(g) of the LRA that prohibits such a dismissal.

The Labour Court decided that:

• For purposes of labour law, the sale neither took place as at the April date on which the parties signed the sale agreement nor at the January date stipulated in the contract.
• Instead, the court decided that the takeover had taken effect on February 27, 2003, when Smulders began operating the business.
• The dismissal had taken place in March, after Smulders had taken over the business, and BDS, under its new ownership, was the employer at the time of the retrenchment.
• The retrenchment was an automatically unfair dismissal because the dismissal decision stemmed from the takeover of BDS.

BDS took this decision on appeal to the Labour Appeal Court, and the Labour Appeal Court upheld (confirmed) the findings of the Labour Court.

This case reinforces the crucial principles that employers:

• Need to be cautious about buying or otherwise taking over a business or part of a business as a going concern.
• Need to be even more cautious about dismissing any employee for any reason related to such a takeover even if the reason for the dismissal is only indirectly related to the takeover.
• Should neither enter into takeovers nor dismiss any employees before obtaining advice from a reputable labour law expert.

What is constructive dismissal?

Definition of constructive dismissal

Constructive dismissal means the employee resigns and claims that the resignation occurred as a result of the employer's intolerable conduct. The employee further claims that he actually did not want to resign. Because of the fact that the employee alleges that the resignation was involuntary and was intentionally or unintentionally coerced by the employer, the resignation thus becomes a constructive dismissal.

Requirements to establish constructive dismissal:

To convince an arbitrator or judge that unfair constructive dismissal has taken place the employee must show that:

• The employment circumstances were so intolerable that the employee could truly not continue to stay on;
• The unbearable circumstances were the cause of the resignation of the employee;
• There was no reasonable alternative at the time but for the employee to resign to escape the circumstances;
• The unbearable situation must have been caused by the employer;
• The employer must have been in control of the unbearable circumstances.

Section 186 (1) (e) of the Labour Relations Act includes in the definition of dismissal the situation where "… an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee".

It should be noted that not all questionable acts of the employer will always constitute unfair constructive dismissal. This will depend on the extent to which the employer's conduct falls within the five tests for constructive dismissal as set out above.

Interpretation of the 5 (five) tests:

Employers need to be careful in interpreting the meaning of these five tests.

For example, test number 3, where the employee must show that he had no reasonable alternative but to resign, must not be simplistically interpreted.

For instance, it is often the case that the employee theoretically has the option of remaining in the employment relationship and referring an unfair labour practice to the CCMA or other tribunal.

Where the employee fails to do so and resigns instead, this will not always mean he has failed test number 3. Passing this test will depend a great deal on whether, under the circumstances at the time, the employee could reasonably have been expected to stay in the employer's employ for purposes of referring the unfair labour practice dispute.

Truly unendurable circumstances would make such a route unreasonable.

Employees must be equally careful not to misinterpret the law. Where, for example, an employer notifies an employee of a disciplinary hearing, this could genuinely be seen as unbearable to the employee.

However, a resignation by the employee for purposes of avoiding the disciplinary hearing is unlikely to constitute unfair constructive dismissal.

For example, in the case of Mvamelo vs AMG Engineering (2003,11 BALR 1294) the employee was informed he was to face a disciplinary hearing for theft and that criminal charges would also be laid. He resigned and claimed constructive dismissal, but lost the case because it was found by the arbitrator that he had resigned to avoid the disciplinary steps of which he had been notified.

However, where disciplinary steps have been taken unfairly and this renders the employment circumstances intolerable, this can constitute constructive dismissal. In the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd (2009, 4 BALR 406) the employee was found to have been performing his work poorly. As a result the employer decided to stop paying him his salary and replaced it with a commission structure.
The employee resigned and went to the CCMA, where it was found that the employee had been a victim of unfair constructive dismissal. This was because the employee could not be expected to continue employment under such intolerable circumstances.

Conclusion

It is not possible to outline each and every possible act of constructive dismissals. Each case must be evaluated on its own merits.

Medical certificates

Employers are usually confronted with situations where employees do not report for duty and submit medical certificates as explanation for their absence.

The question is - What is a valid medical certificate?

Rule 15 of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa can be used as a starting point.

Rule 15 reads as follows:

15(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
(a) the name, address and qualification of the practitioner;
(b) the name of the patient;
(c) the employment number of the patient (if applicable);
(d) the date and time of the examination;
(e) whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
(f) a description of the illness, disorder or malady in layman's terminology with the informed consent of the patient: Provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
(g) whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
(h) the exact period of recommended sick leave;
(i) the date of issuing of the certificate of illness; and
(j) a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters .

(2) If preprinted stationery is used, a practitioner shall delete words which are irrelevant.

(3) A practitioner shall issue a brief factual report to a patient where such a patient, requires information concerning himself or herself.

Most of the above is largely self-explanatory.

However, I will briefly refer to some of the rules mentioned above and how it serves to protect the employer against abuse of medical certificates by employees.

Rule 15(1)(e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes along to the Doctor and informs the Doctor that he had flu since Monday and requires a sick note. The Doctor will then normally write in the sick note that "I was informed that the patient etc."

The employer does not have to accept this as genuine illness. The Doctor is only telling the employer that the patient says he was ill. The Doctor is not certifying that he made an examination and is able to confirm the illness.

The employer would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the Doctor when he falls ill and are not after he has recovered from the alleged illness.

Rule 15(1)(f) states that the Doctor should give a description of the illness. This may not always be stated, particularly where the nature of the illness, if disclosed, may embarrass the patient.

If the employer has an extremely good reason, for example if this employee is regularly off sick, then perhaps the employer could assist the employee in typing a letter for the Doctor authorising him to disclose to the eomplyer the nature of the illness. Alternatively the employer could request the employee to go to the Doctor and obtain the information in terms of rule (3).

Rule 15(1)(j) requires the medical practitioner to print his name and initials on the medical certificate in addition to his usual signature.

Regarding medical certificates issued by a clinical hospital, it is normally found that the certificates are not signed by a registered medical practitioner. Every clinic and every hospital has qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.

An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable.

A certificate signed by a person other than a qualified medical practitioner who is authorised to make such examination and diagnosis is equally unacceptable.

This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and in such cases the employer must insist that the rule (j) be complied with, otherwise the employer must treat the period of illness as unpaid leave.

Remember also that the those occasions where an employee takes only one day or two days off sick and of course is not required to produce a medical certificate, those days remain classified as sick leave days and are deductible from the employees sick leave entitlement.

Polygraph ("lie-detector") testing in the workplace

A polygraph test is a test used to verify a person’s truthfulness and is often called a ‘Lie Detector Test.’

Polygraph testing is a fairly new concept in South Africa, especially in disputes relating to employment relationships. There is no legislation at this point to control the use of the test or to protect the employee’s right against the abuse of the test.

It is against the Constitution of South Africa to compel a person to undergo a polygraph examination, unless she or he consents to it. The consent must be in writing.

The individual should be informed that—

• the examinations are voluntary;
• only questions discussed prior to the examination will be used;
• he/she has a right to have an interpreter, if necessary;
• should he/she prefer, another person may be present during the examination,provided that person does not interfere in any way with the proceedings;

• no abuse in whatever way will be allowed;
• no discrimination will be allowed;
• no threats will be allowed.

The question, however, is when is an employer allowed to make use of a polygraph test.

Generally, employers are permitted to use the polygraph to investigate specific incidents where—

• Employees had access to the property which is the subject of the investigation;
• There is a reasonable suspicion that the employee was involved in the incident;
• There has been economic loss or injury to the employer’s business like theft of company property;
• The employer is combating dishonesty in positions of trust;
• The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company;
• The employer is combating deliberate falsification of documents and lies regarding true identity of the people involved.

Polygraph results cannot be released to any person but to an authorised person. Generally it is the person who has undergone the polygraph test (examinee), or anyone specifically designated in writing by the examinee, firm, corporation or government agency that requested the examination.

The next question is: What is the status of a polygraph test at the CCMA?

Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the commissioner is to determine the admissibility and reliability of the evidence.

Polygraph test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct. In other words, polygraph test results, on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence.