Contractual rights and obligations created by means of workplace policies, practices and procedures
The LRA, as well as other employment law, such as the BCEA, contain various statutory rights and obligations. These statutory rights and obligations have been created by the legislature and, generally, disputes regarding same fall within the jurisdiction of the CCMA (and bargaining councils), as well as the labour court – in terms of, amongst others, sections 193, 194 and 195 of the LRA, statutory remedies exist.
On the other hand, employers have created, mostly in pursuit of compliance of the reasonable employer test (which no longer exists since 2008, in terms of Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC)), various policies, practices or procedures. These contractual rights and obligations attract contractual, as opposed to statutory, consequences and involve contractual, as opposed to statutory, defences. Generally speaking, the labour court and high court have concurrent jurisdiction regarding these types of disputes (in terms of s77(3), read with s77A(e) of the BCEA).
It is quite clear that, despite the above realities, such policies, practices and procedures continue to exist and entail substantial risk to an employer. More than that: a great number of practitioners still wrongly hold the viewpoint that these documents are very relevant and need to be regularly updated.
The workshop focuses on, firstly, identifying the extent of such risk so applicable to a specific employer and, secondly, designing an action plan to minimise such risk – such action plan may entail the formulation of an approach regulating the workplace substantially in line with the statutory requirements (including the applicable Codes), as well as collective agreements and not policies, practices and procedures.
Vicarious liability of an employer
It is well-established that an employer is vicariously liable for the wrong committed (an act or omission) by an employee during the course/scope/sphere of employment/ engagement or in any activity reasonably incidental to it. During the workshop, the employer will be provided with the test to be applied to determine, with a reasonable amount of accuracy, the extent to which it is exposed in this regard. However, the real risk exists in deviation matters, namely, where the employee commits a wrong whilst deviating from the normal performance of his/her duties and entirely for his/her own purposes.
During the workshop, the employer will, in this regard, be provided with the following tools:
- The test to determine vicarious liability when an employee operates solely for his/her own purposes
- The application of such test to the specific workplace
- with reference to, amongst others, the employer’s organisational structure and occupational levels, roles and functions of its employees, as well as the level of trust placed in the hands of such employees, the employer will be assisted to identify, with a reasonable amount of accuracy, those jobs or functions that could expose it to vicarious liability in this regard
In short, what will be identified and analysed is the role played by the business of the employer in the creation of the risk of harm for which the employer may be held vicariously liable in the aforesaid deviation scenarios.
Specific workplace material to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
The following are relevant in this regard:
- Appropriate policies, practices and procedures
- Sample employment contracts, indicating specifically the extent to which employment policies, practices and procedures have been incorporated therein
- the organisational structure of the employer, indicating, amongst other things, in respect of each occupational
level, the following:- Roles
- Responsibilities
- The level of independency (and lack of supervision)
- Collective agreements dealing with same or similar issues as contained in the aforesaid policies, practices and procedures
- Copies of commercial contracts with clients in terms of which any portion of the employer’s workforce is utilised to execute contractual obligations (e g a contract with a client in terms of which security is provided by any number of employees of the employer)
Specific employment equity materials to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
The following material needs to be provided:
Approach to be adopted during the workshop
The workshop will commence with an analysis of the current approach adopted at your workplace, followed by an audit to determine the level of your non-compliance with the new requirements. Thereafter, a joint action plan will be developed to give effect to the issues identified in the audit – lastly, and most importantly, at the end of the workshop you must be in a position to initiate what is required of you to implement the action plan to ensure the required compliance levels.
