Reasonable accommodation of employees with disability

There is often a great deal of confusion around the legislated requirement for businesses to provide for the “reasonable accommodation” of people with disabilities without causing the organisation “unjustifiable hardship”.
Despite the Disability Code of the Employment Equity Act stating that employers should reasonably accommodate people with disabilities, employers are not obliged to employ a person with a disability where that person cannot perform the essential functions of a job even with reasonable accommodation.

While the concept of accommodation itself is fairly easy to understand – for example, making existing facilities accessible to people in wheelchairs, or reorganising workstations – the question of what is ‘reasonable’ in this regard is often less clear.

Let’s take the basic issue of access. Would it be reasonable to expect a business that is located on the second floor of an old building that does not have a lift to make itself accessible to an employee, or a potential employee, who uses a wheelchair?

In this example, the actions that would have to be taken to accommodate the employee – installing a lift or even moving premises – could be regarded as causing “unjustifiable hardship” to the organisation. However, if the business has offices on the ground floor as well, it may not be an “unjustifiable hardship” to accommodate the person downstairs.

What the law does require is that employer investigate the particular accommodation the person with a disability requires and how effective it would be in reducing the impact of their disability on his or her ability to perform the essential functions of the job.

The costs of the accommodation also have to be ascertained before deciding whether or not the provision of reasonable accommodation would entail “unjustifiable hardship”.

However, employers cannot simply claim that the cost of the required accommodate is unaffordable and therefore an “unjustifiable hardship”; the employer has to prove that the hardship is unjustifiable.

What if an individual is no longer be able to do the job for which he or she was employed due to injury or illness? Are employers obliged to create a new job for the individual for the purpose of reasonably accommodating the person?

No, the employer need not reassign the essential functions of the job to another employee in order to accommodate the employee. However, in certain circumstances, non-essential functions which are peripheral to the job for which the person is employed, should be reassigned.

The bottom line is that there cannot be a ‘one-size fit all’ approach to the reasonable accommodation of employees with disabilities.

Just as people with disabilities will have different accommodation requirements, different businesses will have different capacities to implement the required accommodation. Each case has to be considered on its own merits.

Dr Jerry Gule is the chairman of South African Employers for Disability (SAE4D).

You need to integrate your business solutions

Accounting, payroll & HR and payments are at the heart of any business. By integrating this golden triangle of business processes and systems, organisations can reduce manual
administration and free up time to spend on more value-adding activities. With integrated solutions, businesses can achieve higher levels of automation across their businesses, become more productive and efficient, and gain better visibility into their performance.

Here are a few benefits companies can achieve by implementing integrated business solutions.

1. Reduce redundant data capture

An integrated solution that brings payment, payroll and accounting functionality together eliminates the need to recapture or manually import payroll data into the accounting system each month, and then reconcile financial data with bank statements. That can save hours of work each month for the accounting and payroll teams, while also ensuring that the business always has up-to-date payroll information reflected in its financial systems.

2. Better visibility into business performance

If companies have completely up-to-date payroll, HR and payments data flowing automatically to their accounting systems, they’ll have access to the reports and information they need for better planning, forecasting and budgeting. They’ll have insight into cash flow, human resource capacity and utilisation, and business growth they can use to optimise performance and plan for the future. Because there is no need to collect information from separate databases, reporting is faster and more accurate.

3. Fewer errors

Eliminating the need to recapture data means that the possibility for human error to creep in is vastly reduced. What’s more, all of the company’s business systems draw their data from a single database, reflecting a single, accurate version of the truth. This creates trust in the business’s financial data and helps the business to avoid making costly errors in tax or payroll calculations.

4. Less paperwork

Integrated payroll, HR and accounting solutions can help the financial and payroll teams to stay on top of the mountains of paperwork involved in managing the workforce. For example, if an employee updates his or her personal information in the HR system via employee self-service, the integrated payroll software should automatically update. This means less work for HR and payroll staff, and fewer chances for data capture errors.

5. A platform for self-service and mobile working

A modern, integrated business system that draws together payments, payroll & HR, and accounting is a platform for more efficient ways of working. With accurate and up-to-date payroll and HR data available, employees can use employee self-service to access information about benefits, payroll, leave, and expenses. They can even update their information themselves. This can save managers, HR, and employees a great deal for time.

This sort of environment also means that managers can get access to up-to-date business information wherever they are. They can monitor employee and business performance from their mobile phones, knowing that they have accurate information at all times to inform their decisions.

Anton van Heerden is the Executive Vice-President and Managing Director, Sage South & Southern Africa.

Is your contact centre a brand building or grudge centre?

Streamlined systems, self-service options, real-time communication and measured results define the contact centre of the future.
We all know the theory: consumers are changing the way they interact with each other and businesses. But how many contact centres have taken full advantage of this?

If businesses are willing to embrace the ubiquitous technology solutions available, the once-dreaded call centre (typically synonymous with long queues, bad hold music and a rising temper) can be turned into a positive, brand-building, revenue generating department, aligned with business goals and strategies.

There are a number of trends that have emerged that can support the transformation of contact centres into proactive departments that provide positive customer experiences and support the business as a whole.

A contact centre is not a place to have a grudge conversation, but a place to handle sales and marketing, and to better understand the customer’s need as well as how to address these. It is an important crossing-point between your business and your customers.

You need to prepare your contact centre to communicate with people in a meaningful manner, and this means enabling new forms of communication and across various platforms.

Cloud computing, as well as technology such as HTML5, WebRTC and Internet of Things (IoT) are the means through which businesses can get the most out of their contact centres.

No longer does a customer have to wait in the tedious queue for an operator. With a move to the world being viewed through a browser, WebRTC (Web Real-Time Communication) enables browser-based communication, whether through voice, chat or video and across all connected devices. This form of technology can remove the phone, and call charges, from the equation altogether.

This, paired with HTML5, technology that removes the need for added plugins and ensures applications work seamlessly regardless of the device being used, significantly elevates the customer experience of engaging with a contact centre.

While the benefits of Cloud computing are widely understood, in the specific context of a contact centre, Cloud computing removes geographical boundaries and allows even a small startup to go global. It opens up markets for communication and allows flexibility not previously possible, for example, home agents can be employed for busy times or in specific areas based on language needs.

The demand and expectation for response and turnaround times has necessitated a move away from the traditional contact centre using disparate systems and focussing on voice communication and IVR (interactive voice response). The future, enabled by technology such as Cloud computing, HTML5 and WebRTC, is one of streamlined systems that provide a simple user experience, self-service options, real-time communication (in more forms that just a phone call) and measured results through ensuring the reason for the contact is resolved and providing an easy way to escalate a matter where necessary.

Opening the communication channels for customers, whether for queries or complaints, says a lot about an organisation and all businesses need to seriously start planning for how they are going to deal with more than just voice.

Jed Hewson is the co-founder of 1Stream.

When it comes to negligence, ignorance is no excuse

Legislation is drafted to address the problems faced in society at a particular time. As time passes and the nature of the problem changes, so too must the legislation adapt to keep up with this change.
It is for this reason that guidelines and rules are amended by our legislature, so as to ensure relevancy and efficacy. While recent amendments to the Occupational Health and Safety Act (OSHA) have been made for this exact reason, we tend to forget to keep abreast of changes and new policies, and become complacent, letting the rules slip by the wayside.

However, given the changes that have been made to the OSHA, ignorance can no longer be used as an excuse. Those companies that assume that they will be given a slap on the wrist and a warning for failure to comply with the updated safety regulations are in for a shock. 2016 will not be kind to those pleading ignorance for their negligence when it comes to accidents or deaths caused by negligence related to drug or alcohol use in the workplace. Substance use in the workplace is one of South Africa’s biggest issues that has gone unchecked largely due to an implicit culture of drinking and drug use in our society as a whole. Here, employers have generally taken a soft approach to occupational health and safety laws surrounding the problem of alcohol and drugs in the workplace and have, until now, been able to skirt the issue with minimal consequences.

All of that has changed with the recent revisions to the OSHA, and its laws and regulations will be implemented as necessity in all businesses across South Africa. These revisions have been made to address the soft approach companies have taken to substance abuse, and to prevent ignorance from being used as an excuse. Liability for accident or injury due to negligence with regards to alcohol and drugs, have been placed squarely with the employer. It is no longer enough that the OSHA has placed responsibility on employers to ensure that they have an alcohol and drug-free workplace, by stating that an employer may not allow any intoxicated person, whether under the influence of drugs or alcohol – to enter or remain in a workplace. The Act has taken a harder stance and now states that it is the employer’s responsibility to take reasonable steps to ensure this does not happen, which means that an employer can no longer claim ignorance of the problem as an excuse.

Is the OSHA being enforced and monitored in the working world? Yes, and we’re seeing an increasingly stringent implementation of the rules by health and safety inspectors, particularly in high-risk work environments. For example, we’ve recently dealt with a case where a mining company had bought the breathalyser equipment in the past and had them on premises, without actually using them. When a safety audit was conducted, it was discovered that workers were not being tested for alcohol on arrival which is required in such a high-risk industry. Operations were shut down until the mine could prove that the testing equipment was being used on a daily basis, in line with regulatory requirements.

The implications for failure to comply with OSHA requirements are much stricter and heavier than before. Businesses can be shut down, until compliance is achieved and can incur massive fines, as well. The biggest problem will arise when a company is aware of an existing problem, but does nothing about it. For instance, we had dealings with another mining company where the shift manager was aware of the workers smoking marijuana underground. He turned a blind eye because he’d heard that marijuana can increase productivity. The problem arose when one of the workers was killed in an underground accident, and upon investigation, when all of the workers tested positive for Tetrahydrocannabinol (THC), it came out that the shift manager did nothing to stop the use of drugs underground. He was essentially condoning the use of drugs, by ignoring it and he was dismissed and subject to a criminal hearing for manslaughter. The company involved incurred massive penalty fines and was ordered to pay compensation to the families of the workers involved, because the accident was caused by negligence on their part.

Given that it’s legally enforceable that businesses are required to ensure that they take reasonable measures to remove or mitigate these risks, it is advisable to develop and implement substance abuse policies, procedures and programmes for their workplaces. These policies must cover how testing for drugs and alcohol will be done, and when it will take place. Employees need to be made aware of these policies and testing procedures and must be educated on the consequences of failure to comply with testing. It’s clear that ignorance of the law is no excuse, and companies should not expect leniency when it comes to the OSHA’s stringent requirements, especially in high-risk industries.

Rhys Evans is the Director of ALCO-Safe.

Understanding the emotions of the workplace

Humans like to say they make rational decisions, but in reality they are driven by emotions, which people post-rationalise when explaining their choices to others.
This after-the-fact storytelling has led management to attribute a series of functional reasons why only one-third of employees are fully engaged at work and why others are disengaged and leave the organisation. Strategies to ensure workplace engagement has largely been focused on practical rewards such as pay increases or bonuses, but it is these ‘feeling-based’ personal relationships that have the greatest influence, causing engaged employees to work effectively, remain with the employer and become ambassadors for their organisation.

The power of positive emotions

Analysis shows that feeling valued, confident and inspired are some key emotions that lead to higher engagement levels. The emotional responses to questions that employees ask themselves about their organisation are crucial to their level of engagement, affecting their performance at work and their willingness to learn within the organisation:

• Do I feel I am valued?
• Do I value the organisation where I work?
• Do I feel I belong?

People won’t excel in their working environment unless they have fun in what they are doing. Workplace irritation, disinterest and discomfort are the three core negative emotions that drive disengagement. Workers cannot be critiqued into performing better, and constant negative feedback from a manager or supervisor ensures an emotional disconnect and disengagement.

The importance of addressing negative emotions

A manager who encourages positive emotions fosters a stronger sense of satisfaction. They receive the highest satisfaction ratings when their employees feel inspired, enthusiastic, happy and excited. Alternatively, when immediate supervisors evoke negative emotions in employees, their satisfaction ratings are below average. This has to be addressed as negative emotions are more contagious than positive ones. These emotions are far more obvious and can spiral from individual employees to impacting co-works, the organisation and clients.

Cultivate positive emotions

Engagement is more than being happy at work; in fact happiness does not greatly impact engagement. It is demonstrated by how personally connected and committed workers feel towards the company. Employees personalise their work through emotions felt about the company’s action as a whole and about their immediate supervisor in particular. Those who emotionally connect in a positive way feel a sense of ownership and are likely to stay and deliver superior work. This positive engagement is measurable by an employee’s willingness to recommend their organisation as a place of work and a place to do business.

Neville De Lucia is the Business Director at Dale Carnegie Training.

Contempt of court judgment highlights debate around efficacy of labour court interdicts

A recent judgment by the Labour Court of South Africa highlights the debate around the efficacy of court interdicts in prohibiting unlawful conduct in the context of strike action.
In November last year, the trade union, South African Municipal Workers Union (SAMWU) and its members, who are employees of Pikitup, commenced unprotected strike action. Pikitup is owned by the City of Johannesburg (CoJ) and conducts the business of waste collection and disposal in the greater Johannesburg area and its surrounds.

The strike was unprotected and was accompanied by violence and intimidation by striking employees. On 24 November 2015, Pikitup successfully obtained an interim Labour Court order, inter alia, interdicting the strike, precluding employees for participating in such strike action and preventing employees from committing various acts of unlawful conduct aimed at interfering with Pikitup’s waste collection business.

Despite the court order, SAMWU and its members continued with the strike. It eventually ended on 4 December 2015, approximately two weeks after the order had been granted.

During the strike, SAMWU and its members had, contrary to the terms of the court order, continued to commit various act of unlawful conduct aimed at interfering with Pikitup’s waste collection business. The conduct by striking employees included preventing non-striking employees from reporting for work, blocking access to and egress from various depots and dumps sites, trashing and burning waste disposal bins and emptying out waste disposal bins on the streets in the central business district of Johannesburg and in Braamfontein. During the strike, the union and its officials had further issued various statements in the media inciting the continuation of the strike.

On 11 February 2016, the Labour Court made its order final and issued a punitive costs order against SAMWU in relation to the urgent application itself. The Labour Court went a step further and held that, in its view, on the face of affidavits that Pikitup had filed at Court, SAMWU and its members were in contempt of the order that the Labour Court had issued on 24 November 2016. The Court therefore issued a further order requiring SAMWU and its general secretary, Mr Simon Mathe, to explain why they should not be found to be in contempt. In the Court’s view, its authority had clearly been publicly undermined by the union and it members.

The first issue for the Court to consider was whether the union and its officials had in fact complied with their obligations in the interim order and secondly, if they had not, whether such non-compliance amounted to contempt of the court order and what the penalty should be.

On the first issue, the court considered to be of relevance the alleged public statements made by union officials and concluded that there was no doubt that the public statements by union officials conveyed the sense that the union endorsed the strike and supported its continuation. The actions of these officials were plainly in breach of the terms of the court order. The Court held further that there was no evidence of any proactive steps taken by SAMWU to ensure that its officials and members complied with the order and further that the only reasonable inference is that SAMWU and Mathe were completely indifferent as to whether their actions were in breach of the court order or not.

On the question of the penalty that should be imposed, the Court considered the fact that the contempt related to the interim order alone and the time for compliance with that order had passed. Further, since the period in respect of which the findings of contempt were made ended on 3 December 2015, the Court was inclined to impose much lower fines than would probably have been the case if the period of continued disruption after the confirmation of order was also under consideration.

In the end, the Court ordered that SAMWU be fined ZAR 80 000, suspended for 24 months on condition that SAMWU was not found guilty of contempt of any Labour Court order. Further, Mathe was fined ZAR 10 000 suspended for 24 months on condition that he was not found guilty of contempt of any Labour Court order. In addition, Mathe and SAMWU were ordered to pay costs of the contempt proceedings on a punitive scale.

Although the fine issued by the Labour Court appeared to be nominal and had been suspended, the judgment sent a clear message that deliberate breach of the orders issued by the Labour Court will not go unpunished. This is particularly true in the South African context where unprotected strikes and strike violence are very common. Employers who face this type of action look to the Labour Court to issue interdicts to stop this type of behaviour. Most often, employees and the trade unions simply disregard the provisions of strike interdicts. The small fine issued by the Labour Court in this matter and its suspension, however, continue the debate as to whether or not court interdicts are worth the paper they are written on and whether the threat of contempt proceedings, in the event that the terms of the order issued by the Labour Court are breached, is a sufficient deterrent.

Bowman Gilfillan Africa Group represented Pikitup in this matter.

Henry Ngcobo is a partner and Keshni Pillay is a senior associate in Bowman Gilfillan Africa Group’s Employment & Benefits Practice.

The Dunning-Kruger effect and poor performers

Managing poor performance is arguably one of the more difficult tasks faced by managers in the modern workplace. Terminating the service of an employee who was caught with his ‘hand in the cookie jar’
is often easier that letting someone go who really tries hard to get the job done, but fails. We appear to be more comfortable at taking tough decisions where the employee is to blame or at fault than where the employee is unable to perform due to no fault on his part. Perhaps it resonates more with our innate sense of fairness that there should be consequences attached to the intentional or negligent breach of rule? It takes greater courage to give up on someone who constantly slaves away at a goal but just never reaches it.

In many jurisdictions, employers may fairly terminate the service of an employee where the employee fails to meet the required performance standard. Incapacity due to poor performance is distinguishable from workplace misconduct in that misconduct entails the intentional or negligent breach of the workplace rules or standards. Poor performance, as a form of employee incapacity, occurs where the employee lacks the ability or capability to perform to the required standard.

Theorists often use the example of an employee who does not want to do the work required (misconduct) versus one who cannot do the work required (incapacity). The latter category of employee can often be seen immersed in his work, slaving away at his work station, feverishly trying to meet deadlines and perform required tasks, yet still bearing the brunt of a frustrated manager’s anger when he (again) fails to deliver work in time or at the required standard. What is often very difficult for such under performing employees to appreciate is that they are at risk of termination, notwithstanding their work ethic or commitment to the cause. Poor performers regularly feel disgruntled when taken to task for not performing up the required standard as, in their view, they are trying their utmost to get the job done and cannot be faulted for not achieving the required standard.

In 1999, David Dunning and Justin Kruger of Cornell University conducted a series of experiments, inspired by the curious case of McArthur Wheeler. A failed bank robber, Wheeler infamously robbed two banks after covering his face with lemon juice. His rationale behind his cunning disguise – as lemon juice can be used as invisible ink, covering his face with lemon juice would prevent his face from being recorded on the closed circuit television cameras. What could possibly go wrong?

Dunning and Kruger found that relatively unskilled people suffer from illusionary superiority – they erroneously assess their own ability to be much higher than their actual ability or performance. They attributed this to an “inability of the unskilled to recognise their own ineptitude and evaluate their ability accurately”. Dunning stating it differently proffered that “if you’re incompetent, you can’t know that your incompetent” or “[t]he skills you need to produce the right answer are exactly the skills you need to recognise what a right answer is”. Incompetent people overestimate their own level of ability and furthermore lack the metacognition to realise their mistake. Interestingly, the research also suggests that competent people frequently over-estimate the competence of others, reasoning that the task is easy for them therefore it must be easy for everyone.

Whilst these findings may appear to be a harsh judgment on poor performers, it may resonate with a manager who needed to have the performance discussion with a subordinate. It is not uncommon for underperforming employees to be taken aback when confronted with allegations of their poor performance. Considering Dunning and Kruger’s findings, the discussion between the manager and under-achieving subordinate is a recipe for strive. The manager, who may be a good performer, would often not appreciate that tasks that come easily to her would not be as simple to perform for others. Add to this mixture, the fact that the poor performer is likely to lack the appreciation of his unde performance for the very reason that he under performs: he fundamentally lacks the skills (to appreciate what constitutes good performance or assess his own performance in relation thereto).

The conversation could thus quickly spiral downwards into ‘I cannot understand why you are unable to perform such simple tasks” and “But I have always done more than what I had to do!” But the error is more complicated for the employee as he lacks the competence to recognise his own incompetence. Improving the metacognitive skills of employees resulted in lowed (more realistic) self-assessment scores as they became better evaluators of their own limitations. Understanding the Dunning-Kruger effect may assist managers and employees with performance issues to avoid performance discussions ending in bitter acrimony.

The first leaning point to be taken from the research appears to be that managers should take greater care in communicating standards of expected performance to subordinates. Don’t conclude that communicating outcomes and expectations are not required because it is clear to you or you would not have required anyone to explain the task to you. You may be drawing on a body of knowledge that could be vastly different than that of the employee required to perform the task. Communicating detailed outcomes and allowing for questions and responses will create an opportunity for employees to indicate their inability to perform or lack of understanding of the task ahead.

Secondly, most employees benefit from more regular feedback on their performance. Providing employees with the information they need to assess their own performance could decrease the prospects of them over estimating their own ability. Objective performance standards, such as sales targets, are stark performance indicators that assist employees to objectively measure their performance in relation to their peers. It is more difficult to suffer from illusions of grandeur where the numbers point in the opposite direction (not impossible, regrettably, but more difficult).

Lastly, the research again seems to highlight the need for sound recruitment practices. Some employers still fail to allocate sufficient resources to their recruitment processes. This results in many hours, energy and other resources wasted in managing under performing employees. The best way to cut cost associated with exiting poor performers must be ensuring they do not enter the office gene pool in the first place.

Whilst this may all sound mercenary and heartless, employers who fail to address under-performing employees run the risk of losing their star performers as well. Exceptional performers may leave an organisation where they feel that they are not valued, even if it is only relatively to their peers. Employees who have to shoulder the burden of an under achieving colleague will soon lose heart and leave where the organisation fails to address the situation. Unless an employer addresses its poor performers, those employees may be the only ones remaining in the end.

Johan Botes is the Partner and Head of Employment Practice at Baker & McKenzie in Johannesburg.

How big is your hat?

During my ongoing engagements with senior leaders, one of the things that I have found to be in short supply at this level is courage.

Many leaders claim to be courageous, many think they are courageous but, when it comes to the crunch, surprisingly few actually are.

There are many reasons for their not being courageous. For one, they’re actually highly compliant people – they’ve got to the top by towing the company line. When you’ve done that all your life and it’s brought you success, there’s no way you’re going to change that approach.

But how can you tell when a person is courageous or not? It’s very simple to identify genuine courage. The person who is genuinely courageous will act courageously. It’s as simple as that. Many people talk a big game but the truth lies not in what they say but in what they do.

The Texans have a delightful expression to describe someone who is all talk and no substance or action. They refer to someone like that by using the phrase, “Big hat, no cattle.” That says it all. It’s easy to buy a big cowboy hat to look like you’re an important rancher, but if you haven’t got the cattle to prove that you ARE actually a rancher, you’re just full of hot air.

How many leaders do you know in our country, in your community and/or in your company that you could say fall into the “big hat, no cattle” category of leaders?

And, for that matter, how about you? Are you a “big hat, no cattle” person – someone who’s all big talk but no action?

Some leaders do have the “cattle” so to speak, but are still all talk and no action when it comes to taking a courageous step. One reason for this is that, particularly in the case of listed companies, executives are not their own people. They’re owned by someone else – the shareholders of the company at which they’re employed. And they’re expected to carry out the shareholders’ instructions. That’s what will determine their salary and their bonuses. So, to expect such an executive to start thinking innovatively, independently and courageously is unrealistic. They’re not going to. They’re going to look after their own interests first and that means not doing anything that will rock the (shareholders’) boat.

Many of them will talk of vision but don’t realise that their vision actually ends at the company’s gates or at the company’s bottom line.

But the question is: how courageous are you?

Test yourself. The proof of the pudding is in the eating, so it’s about what you’ve done over the past months, years or decade that will reveal whether you’re all talk and no action.

How many courageous acts have you undertaken? These may have been at work, they may have been at home or they have been acts that no-one else knows about.

You are not courageous if you think courageous thoughts. You are courageous if you take courageous action.

In the home, many parents are not courageous in the way they raise their children. They never want to lose the popularity contest so they are afraid to take courageous action where necessary, and allow their children to grow up wilful, undisciplined and out of control.

At work, many managers or executives are afraid that their own inefficiencies will be revealed if they hold those reporting to them accountable for non-performance. They therefore say and do nothing to hold others accountable and the rot sets in, Very soon, no-one is accountable. This is a problem that is found in both the private and public sectors.

Being courageous doesn’t mean you’ll be bloody minded about everything. It does however mean that, when faced with a difficult decision, you will have the courage to do the right thing.

Imagine what the country and our economy would be like if everyone in government and the public and private sectors had the courage to do the right thing …

Alan Hosking is the publisher of HR Future magazine,, @HRFuturemag, and a professional speaker. He assists executives to prevent, reverse and delay ageing, and achieve self-mastery so that they can live and lead with greatness.

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