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Category: Labour

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COVID-19 and the merSETA

These are indeed difficult and unpredictable times for industries throughout the globe.
The terrible knock in economic growth, reflected in the massive growth in unemployment numbers and the dramatic drop in consumer behaviour, has spared no company and no country.
The SETAs, too, have been affected. The skills levy payment holiday announced by the President at the start of the lockdown in March will have some negative implications, but in keeping with a ministerial directive, we continue stipends for learners.
It is important to note that the 2020 academic year in the Technical and Vocational Education and training sector has been restructured.
The minister has provided the following tentative return dates:
NATED Trimester (ENGINEERING) students
N6 & N3: 10 June
N5 & N2: 15 June
N4 & N1: 22 June
NATED Semester (BUSINESS STUDIES) students
N6: 25 June
N5: 29 June
N4: 06 July
NC(V) STUDENTS
Level 4: 13 July
Level 3: 20 July
Level 2: 27 July
Several TVET colleges have already developed learning materials both for TV and radio broadcasts available through the DHET website. These initiatives will continue beyond the return of students to campuses.
Furthermore, all students who will not have returned to campuses in June and July will also be supported remotely until they return to campus according to the phase-in process.
TVET colleges are using textbooks, e-Guides, past question papers, and uploaded YouTube videos to assist students. These are supported through bulk text messages from colleges and WhatsApp groups set up by lecturers.
In addition, Indlela has implemented fresh ways for trade tests to continue without breaking the COVID-19 regulations.
A strong suit of our sector is the inter-connectedness of the supply chain process. This has a wholesome impact on training in all value creation processes.
As the intermediary between the education and training and the manufacturing and engineering sectors, the merSETA has forged strong inter-organisational and company relationships that will stand the test of time.
These relationships span decades. While there is likely to be a decline in the number of training opportunities in the immediate future, economies are bound to bounce back once the pandemic is under control and lockdown restrictions are lifted.
So, we should never take our eyes off the ball when it comes to skilling our workforce and students.
On behalf of the merSETA, I wish to applaud those companies that have stepped into the breach caused by the short-supply of personal protection equipment. In particular, we appreciate those companies that have re-engineered production processes to manufacture face-marks, gloves, ventilators as well as launching emergency field hospitals.
It once again shows the agility of companies in the mer-SECTOR.
We have taken a huge hit, but we also have strong shock absorbers.
‘Till next month!
Wayne Adams
merSETA Acting CEO

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Update: MIBCO wage and substantive negotiations for 2019

The Commission of Conciliation Mediation and Arbitration continued to conciliate the wage dispute that NUMSA declared with the employers on 30 August 2019, on 11 October 2019.
During the second day of conciliation, the RMI and the other employer parties responded with an amended settlement proposal in response to a proposal from NUMSA requesting that the wage deal for the past three years (2016-2019) be replicated for the ensuing three years. The RMI and the other employer parties proposed the following increases on wages and non-wage cash components (i.e. stand by, call-out and tool allowances):
Component Manufacturers registered under Chapter III
Year 1: 6%                                                        Year 2: 5½%                        Year 3: 5½%
Rest of Industry (excluding the fuel retail industry)
Year 1: August CPI + 1½%  (equal to 5,8%)     Year 2: 5½%                        Year 3: 5½%
Fuel Retail Industry registered under Sector 5
Details to be released under separate cover, in due course.
The RMI’s offer is conditional on NUMSA relinquishing its proposals/demands regarding the introduction of night shift and transport allowances, higher overtime rates for Chapters II and III, and the effective scrapping of the short time provisions in the Main Agreement, and resonates the RMI’s commitment towards ensuring that the wage agreement for the ensuing three years promote business sustainability and profitability, as well as to promote job retention and creation.
NUMSA did not respond to the RMI and other employer parties’ revised proposal on wages and it was agreed that the conciliation process will continue on 23 October 2019, aimed at achieving agreement on wage increases and a number of other related process issues.
Details regarding progress with negotiations in Sector 5 (fuel retail businesses) will be released under separate cover.
The RMI will continue to keep its valued members updated on developments, and would caution against distress about the slow pace of progress. We remain buoyant about the likelihood of a settlement between the parties in due course.

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The best car safety tips for your family

Car crashes are the leading cause of unintentional injury-related deaths among children ages 14 and under. Unrestrained children are more likely to be injured, suffer severe injuries and die in car crashes than children who are restrained.
“Child safety seats and safety belts, when installed and used correctly, can prevent injuries and save lives,” explains Barend Smit, Marketing Director at MotorHappy, a Motus Corporation Company that provides motor management plans such as extended warranties, service and maintenance plans and car insurance.
According to Arrive Alive, families should follow these safety tips on every ride:

Don’t leave kids in the car

Never leave your kids alone in the car, even if it’s for a short while. It’s not safe for them from a crime point of view, plus they can overheat quickly.

Follow safe driving rules

Your kids might be safely restrained, but you also need to up your safe driving skills to prevent an accident. When driving, avoid the following:

All these shift your focus away from driving, and in some cases, they take your eyes off the road.

Check your car’s safety and maintenance

Don’t forget that the best way to keep your family safe on the road is to make sure your car is in good working conditions, with regular services and vehicle maintenance.
“Car maintenance is an important factor in your family’s safety on the road,” says Smit. So many accidents on SA’s roads are a result of vehicle neglect. It doesn’t matter how good you are at driving, if it starts raining and your windscreen wipers aren’t working, you will most likely have an accident. If you’ve neglected to replace worn brakes, there’s not much you can do if they fail.

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Lies And Videotape

Dishonesty in the workplace can irrevocably break down trust relationships. RMI industrial relations specialist David Van Rooyen looks at cases that have led to dismissal.
Dismissal is not an expression of moral outrage or an act of vengeance. It is, or should be, a sensible response to risk management. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of minor theft; it has everything to do with the operational requirements of the employer’s enterprise.” (Extract edited – Labour Appeal Court: De Beers Consolidated Mines and CCMA.)
Despite a clean record
An employee found some scrap metal in the company’s skip, which he thought might fix his stove at home. Unfortunately, he didn’t get permission to take the scrap off the premises. On his way out, he was searched and the scrap was found in his bag. He was charged with theft, called to a disciplinary inquiry and dismissed. At the CCMA, the arbitrator accepted that he was guilty of stealing the metal, but concluded that dismissal was too harsh, taking into account his 25 years of service and clean disciplinary record. The employee was reinstated with benefits, but without back pay.
In the Labour Appeal Court, the company stated that it had a policy of zero tolerance for dishonesty and his theft had destroyed the trust relationship. The employee admitted the theft, but tried to convince the judge that his conduct was not theft in the strict sense of the word. However, the judge would not water down the accepted meaning of theft. With regard to the 25 years service and clean record, the court confirmed that the damage done to the trust relationship by serious misconduct outweighs long service and a clean record. The court concluded that the arbitrator’s decision to reinstate was not reasonable and that the employee’s dismissal for operational reasons was fair – “he undoubtedly breached the relationship of trust built up over many years of honest service. The company had a consistent policy of zero tolerance for theft and that had been clearly conveyed to all the employees. The commissioner’s award was not justifiable in relation to the reasons given for it. The dismissal was justified for operational reasons and fair”.
Caught red-handed
A female employee was caught on camera, on two separate occasions, concealing a blouse and a belt under her clothing. She was charged with gross misconduct in that she had “concealed merchandise without paying for it, which resulted in a loss to the company”. Despite 23 years’ service, in the opinion of management her conduct had destroyed the trust relationship. She was dismissed but challenged her dismissal at the CCMA. She did not deny hiding the items under her clothing, but said that the blouse was a waste garment with no value and she had put it there to absorb her perspiration because her work area was hot. As for the belt, she “felt like putting it there”.
With regard to the blouse, the arbitrator wasn’t satisfied that Anna had acted with dishonest intent and her conduct was more like unauthorised use of company property. In the case of the belt, the company had not proven that the belt was company property. In the opinion of the arbitrator, the employee was not guilty on the first charge, but guilty on the second charge. She was reinstated with a final warning. In the Labour Appeal Court, the judge viewed the DVD footage and concluded that her conduct indicated concealment with dishonest intention. In the opinion of the court, the arbitrator had acted unreasonably and had no rational basis on which to accept her explanation for her conduct – “it has long been held that the employer’s decision to dismiss an employee will be interfered with only if that decision is found to have been unreasonable and unfair. The fact that an employee has had a long and faithful service is a persuasive factor against dismissal, but is not decisive. There are certain acts of misconduct which are of such a serious nature that no length of service can save an employee from dismissal. The employee committed, on two successive days, acts of gross misconduct involving gross dishonesty, which justified the employer’s conclusion that the trust relationship between it and the employee had broken down irreparably”. (Extract edited – Labour Appeal Court: Woolworths and CCMA.)
Ignorance is no excuse
Rainbow Farms provides free milk, tea, coffee and bread in its canteen and a company rule prohibits taking free milk from the premises without permission. An employee was found with some free milk on leaving the premises and he was charged with unauthorised possession/removal of company property. After an inquiry, he was dismissed. At the CCMA, the arbitrator accepted that there is a company rule, but concluded that the employee was unaware of the rule or that he was doing anything wrong. The Labour Appeal Court did not agree and concluded that it was clear that the employee had breached a well-known rule that had been consistently applied by management. The employee had been dishonest and his conduct had destroyed the trust relationship. The dismissal was substantively and procedurally fair.
Acknowledgements:
1. PAK le Roux, ‘The Labour Appeal Court’s approach to dishonest employees’, Contemporary Labour Law, August 2011, Published by Gavin Brown and Associates.
2. Juta’s Labour Library, Published by Juta and Company.

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Truth And Lies

The use of polygraphs is a process fraught with difficulty and the tests may well prove inconclusive, explains industrial relations specialist David Van Rooyen.
A polygraph measures and records bodily activities such as heart rate, blood pressure, breathing rate and skin resistance. It is claimed that any conscious effort by a person to give false information during a polygraph test will cause involuntary and uncontrollable responses in these activities. The test itself involves measuring the person’s responses while answering a series of about eight to
12 questions, which would include three that are specific to the reason for the test. The examiner then interprets the test results. However, while the examiner can form an opinion as to whether or not the person has tried to deceive the polygraph, they cannot say conclusively whether the answers are true or false or if the person is lying.
If tests results are going to be used as evidence against an employee, it is important to know how accurate and reliable they are and whether or not they can be used at arbitration.

Accuracy and reliability
According to the American Medical Association, the American Psychological Association and the National Academy of Science, polygraph tests are unreliable and inappropriate for use in the workplace; they are more art than science with little serious research behind them. In this country, the Health Professionals Council of South Africa has reached a similar conclusion. It is claimed that a polygraph measures the responses generated by emotional stress, but stress may be caused by a number of factors of which lying is only one. It is possible that the questions themselves, such as “did you steal the money?” could make the respondent feel like a suspect and become nervous. The fact that they are being interrogated by a stranger in unfamiliar surroundings could make them nervous. The fear of failing the test could produce adrenaline in the body, leading the examiner to infer that the respondent is trying to deceive the machine. There is evidence to indicate that people from different ethnic groups also exhibit different stress reactions that may affect the test results.
There are three significant variables that can affect the accuracy of a test – the expertise of the examiner; the mental and physical condition of the person sitting the test; and the setting in which the test takes place. Independent studies give polygraphs a relatively high rating for reliability and accuracy, but these studies have also shown that only one in three who fail a test might, in fact, be guilty, which means that two out of three people who are found guilty are actually innocent. Even if the accuracy levels are 80 to 90 per cent, there is still a 10 to 20 per cent chance that an innocent person will fail a test and be found guilty. In addition, techniques which can be used to beat the test are available on the Internet.
Competence
The examiner is the single most important unknown in assessing the reliability and accuracy of polygraph tests. A large number of South African examiners have been trained in the United States or Israel, with experience in law enforcement but little experience of human psychology. Many examiners belong to the American Polygraph Association and might also belong either to the Polygraph Association of South Africa or to the SA Professional Polygraph Association. Neither of these South African associations is a statutory body and there is no facility in South Africa to assess or accredit examiners.
Be cautious
Because of the potential for error, our courts and arbitrators treat test results with some suspicion. At arbitration hearings, you will probably have to call the examiner as an expert witness so that they can testify and be cross-examined as to their expertise and test procedures and the arbitrator can examine and assess the reliability and accuracy of the test results. In cases of dismissal, the onus rests on the employer to prove that the dismissal was for a fair reason. A failed polygraph test or a refusal to participate in a test is not proof by itself of an employee’s guilt and is unlikely to convince an arbitrator, so corroborating evidence will be required.
Constitutional issues
Apart from concerns about reliability, accuracy and the expertise of the examiner, there are also constitutional issues with polygraph tests, such as the individual’s right to privacy and the right to be protected from self-incrimination. It is possible for a polygraph test to infringe one or more of these rights, but it is standard practice for examiners to brief the person regarding his or her rights prior to conducting a test, in which case there will presumably be no constitutional infringement.
Useful in investigations
Polygraph tests are more helpful and less controversial when used during an investigation and could provide an opportunity for volunteers to clear their names. Tests could reduce the number of suspects and might encourage the guilty person to confess, which is more reliable and useful as evidence than a failed polygraph test.
A failed test is not proof
Refusal to participate in a test might arouse suspicion but does not prove that a person has something to hide. Likewise, a failed test may well create suspicion, but is not proof that an offence was committed or that the employee is lying. Suspicion is one thing – proving guilt is something else.

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