Prepare your children for the new world of work

Teach your children these basic skills to prepare them for their world of work. While you’re busy trying to cope with working in a disruptive workplace, spare a thought for the type of world your children will have to work in. It’s probably not a wise idea to make any predictions as to what that workplace will look like. All it will do is make you look really out of touch! While we’re not able to predict with any certainty what kind of workplace our children will have to deal with, if we’re responsible parents, we’ll want to give them the best chance of succeeding, no matter what the workplace of the future looks like.

Last month I highlighted three skills that will stand them in good stead, come what may. Here are more skills and qualities that will be invaluable for them in their careers.

1. Develop their numerical intelligence

While this form of intelligence has always been an important part of education (remember the three Rs – reading, writing and “rithmetic”?), it will be even more important in an increasingly technological world. If your child has not developed a high level of mathematical and logical intelligence, they will always be at a disadvantage in a world of Big Data.

From young, make the learning of mathematical skills fun. Play lots of number games with them so that they become very comfortable with numbers at a young age. Continue to encourage these skills all the way through their school career. Remember, as far as possible, associate these activities with fun, laughter, happiness and togetherness. Those are the experiences that fire up young brains.

2. Encourage your children to read

With the flood of information anticipated to turn into a tsunami, any human who has not developed good reading skills and is an uncomfortable reader will spend their whole lives at a disadvantage. How do you think they’re going to process all the information that’s going to surround them? And if you think we’re dealing with a lot of information now, you’re in for a big surprise.

In 1989, Richard Wurman claimed in his book Information Anxiety that one weekday edition of The New York Times contained more information than the average person in 17th-century England was likely to encounter in their lifetime. And that was before the World Wide Web, invented in 1990, became a part of our lives!

How do you think people will process information and data? By reading it. If they’re not good readers, they won’t be good learners and they won’t be able to process the masses of information that will be a part of their personal and professional lives. Encourage your children to love reading from a young age by reading to them and with them. As with playing number games, make it fun from young and you won’t be sorry.

3. Develop their social intelligence

In an increasingly social world (look at how social media has become so dominant) social intelligence is rated as almost more important than numerical intelligence. In 1920, Edward Thorndike defined social intelligence as “the ability to understand and manage men and women and girls, to act wisely in human relations”. That sounds pretty much what is needed by any leader and/or manager for today and the future (although I wonder why he left out boys in his definition).

Encourage your children to get along with others from a young age. Set a good example for them by conducting yourself with courtesy, kindness and compassion when dealing with people. Talk about relationships with them as they’re growing up. Help them to connect with people, understand people, love people and they will thrive in an increasingly connected, social world.

Alan Hosking is the Publisher of HR Future magazine. He helps leaders acquire new leadership skills to lead into the future, and is an age management and self-mastery coach to senior executives. Alan is the author of best seller What nobody tells a new father, available at amazon.com.

This article appeared in the June 2017 issue of HR Future magazine.

Veni, vidi, visa

A simple “how to” guide to facilitating the flow of any type of visa. A A comprehensive guide of “how to?” is simply not possible in terms of visa law and regulation as well as visa policy. The reason for this is that, sometimes on a daily basis, the playing field has shifting goal posts.

The best advice to give in terms of “how to” perhaps more appropriately named “how not to” is set out hereunder. A comprehensive guide it is not but these tips will help you avoid some of the pitfalls.

The first piece of advice is that any person intending to apply for, or indeed applying for, a visa must carefully consider all options available to them. How to do this would be based upon what your intentions or, where applicable, your employer’s intentions are in terms of placing you in another country or settling in another country in terms of Business Visas.

If it is a temporary deployment then obviously an Intra Company Transfer Work Visa becomes the best option. How to avoid complications with this type of visa would be to ensure that, at all relevant times, the company documentation, employment contracts and all supporting documentationareis accurate, proper and correctly certified, and Apostille certificated when necessary.

The next “how to” relates to how to avoid difficulties with Work Visas. As most countries’ Work Visa regimes are based largely on upper skills sets and critical skills needs as envisioned by the South African Immigration Act 13 of 2002 “The Acts” (as amended), it is important to research fully which category you ultimately will have your skills reside. The professions, trades and occupations as appear on the Critical Skills visa list are set out hereunder for the sake of completeness and because of the importance of this category of work visa in a skills scarce environment:

Agriculture, Agricultural Operations and Related Sciences

• Agricultural Engineer
• Agricultural Scientist
• Forestry Technician
• Sheep Shearer

Architecture and Built Environment

• Architect
• Construction Project Manager
• Land Surveyor
• Quantity Surveyor
• Urban and Regional Planner

Business, Economics and Management Studies

• Actuaries and Risk Assessors
• Corporate General Manager
• External Auditor
• Financial Investment Advisor

Information Communication & Technology

• CISCO Solution Specialist
• CISCO Engineers
• Solutions Architects in Telecommunications and ICT
• Integrated Developers (PHP, PERL, JAVA)
• Network Analyst
• IT Security Specialist
• System Integration Specialist
• Enterprise Architects
• Data Centre Operations
• Network Specialist (Security)
• Database Specialist
• Microsoft System Engineers
• Network Controllers
• AV Specialist (Anti-virus)
• Desktop Support Engineer

Engineering

• Energy Engineer
• Metallurgical Engineer
• Chemical Engineer
• Civil Engineer
• Electrical Engineer
• Electrical Installation Inspector
• Electronics Engineer
• Geologist
• Industrial and Production Engineers
• Industrial Designer
• Manufacturing Managers
• Energy Engineering Technologist
• Mechanical Engineering Technologist
• Metallurgical Engineering Technologist
• Mining Engineering Technologist
• Air Conditioning and Mechanical Services Plumber
• Automotive Electrician
• Materials Engineer
• Mechanical Engineer
• Mining Engineer
• Production/Operations Manager
• Quality System Manager
• Research and Development Manager
• Ship’s Engineer
• Telecommunications Engineers
• Electrical Engineering Technologist
• Physical and Engineering Science Technicians
• Pressure Welder
• Structural Plaster
• Toolmaker
• Automotive Motor Mechanic
• Boiler Maker
• Chemical Engineering Technologist
• Civil Engineering Technologist
• Diesel Mechanic
• Electronics Engineering Technologist
• Fitter and Turner
• Materials Engineering Technologist
• Mechatronics Technician
• Metal Fabricator

Health Professions and Related Clinical Sciences

• Medical Superintendant/Public Health Manager
• Public Health Physician
• General and Specialist Medical Practitioner
• Hospital Pharmacist
• Nursing Professionals
• Veterinarian
• Registered Nurse (child and family health)
• Retail Pharmacist

Life and Earth Sciences

• Environmental Engineers
• Environmental Manager
• Industrial Pharmacist
• Aquatic Scientist
• Animal Scientist
• Advanced Composites Engineering
• Archaeological/Paleontological Specialist
• Bioeconomist
• Biochemists
• Bioinformatician
• Bioinformaticist
• Biological Scientist
• Botanical Scientist
• Chemical Scientist
• Computational Biologist
• Environmental Scientist
• Ecological Scientist
• Food Scientist
• Engineering Geologist
• Geochemist
• Geohazards Specialist
• Geologist
• Geophysicist
• Laboratory Technologist and Technician
• Marine Bioscientist
• Materials Scientist
• Metallurgical Scientist
• Metrology
• Microbiological Scientist
• Polymer Scientist
• Protein Scientist
• Seismologist
• Soil Scientist
• Toxicology Scientist
• Water Resource Scientist

Professionals and Associate Professional

• Land and Engineering Surveyors
• Electronic Engineering Technician
• Materials Engineering Technologist
• Electrical Engineering Technician
• Safety, Health, Environment and Quality Practitioner
• Draughtsperson
• Mechanical Engineering Technician
• Chemical Engineering Technician
• Organisation and Methods Analyst (Incl. scheduler, estimator)
• Surveying Technician
• Geomatics Technician
• Quantity Surveying Technician
• Civil Engineering Technician
• Materials Engineer Non-destructive Testing (NDT)
• Materials Engineering Technician – Road materials
• Materials Tester
• Construction Safety, Health, Environment and Quality (SHEQ) Agent/Manager/Officer
• Aeronautical Engineering
• Architectural Senior Technologist
• Architectural Draughtsperson
• Astronomer
• Physicist (SKA)
• Geomagnetic Physicist
• Solar Physicist
• Space Physicist
• Plasma Physicist
• Space Technologist
• Space Weather Specialist
• Magnetic Technology Specialist
• Radar Engineering
• Radio Frequency Engineering
• Environmental Technologist
• Industrial Engineer
• Industrial Engineering Technologist
• Industrial Engineering Technician
• Landscape Architect
• Landscape Contract Manager
• Landscape Horticulturalist
• Mining Technician
• Millwright
• Boilermaker (For Strategic Infrastructure Projects)
• Industrial Machinery Mechanic
• Pipe Fitter
• Double Coded Welder
• Rigger
• Moulder
• Raise-bore Operators
• Raise-bore Foreman

Business Process Outsourcing (BPO)

• Software Development Engineers and Managers
• Systems Architects, Engineers and Managers
• Foreign Language speakers for specialist language support
• Business Analyst
• Quality Analyst
• Quality Assurance Specialist/Auditor and technical or sales support (German, Swiss German, Flemish, Greek, Swedish, Danish, Italian, Dutch, Spanish, Mandarin and French)
• Customer Service Manager/Team Lead

Academics and Researchers

• Doctoral Graduates (Acquired Abroad)
• Doctoral Graduates (Acquired in RSA)
• Research in any of the following areas:
• Galaxy Formation and Evolution
• Galaxy Structure and Dynamics
• Pulsars and Black Holes
• Pulsars and Gravitational Waves
• Deep Observations of the earliest Radio Galaxies
• Dynamic and Transient Burst
• VLBI Operations
• Search for CO to investigate role of Molecular Hydrogen
• Deep Surveyors of Neutral Hydrogen Gas in the Early Universe
• Cosmology and Dark Energy
• Cosmic Magnetism
• Calibration and Imaging of Radio Interferometer data
• Pulsar Research
• Pulsar and Gravitational Waves
• Signal Processing
• Observational Radio Astronomy in General
• Algorithm for Radio Astronomy
• Signal Processing for Radio Astronomy
• Supercomputing for Radio Astronomy
• Software Development for Radio Astronomy
• Data and Streaming- Real-Time Processing of Massive Data Amounts
• Green Computing- Extreme Performance at Minor Energy Cost
• Performance at Minor Energy Costs
• EMC and Spectrum Management
• Beam Modelling
• Antenna Modelling
• Feeds for Radio Astronomy Systems
• Receivers for Radio Astronomy Systems
• Signal Processing for Radio Astronomy
• High Speed Data Transport
• Nano-photonics-Data Transport Power
• Nanotechnology
• Palaeosciences
• Reduction over Short and Long Distances
• Antenna Design
• Antenna Foundation Design
• RFI Shielded Buildings and Facilities
• Advanced Manufacturing
• Space Science and Technology
• Global Change
• Energy Security
• Information Communication Technology
• Earth Observation
• Natural and Applied Sciences

In terms of how to ensure that you are in the correct visa category for an own business visa, one would have to again research fully what types of businesses are allowable and how to do this would be initially to study the “National Interest” business list in order to determine, in a case of business visas to South Africa, whether that business would be acceptable to the Department of Trade and Industry “DTI” in that sector or category.

In terms of the Critical Skills Visa referred to above, the best “how to” advice would be to ensure in the Critical Skills Visa category that the updated and latest Critical Skills visa list is studied and the correct evaluation of qualification and professional registrations have been done.

In the Retirement categories the best “how to” that can be offered is to ensure that an applicant indeed qualifies in terms of the monetary requirements for the Retired Persons category. It is important under this category to note that it is not only a pension that is required but could be a combination of an irrevocable retirement life time annuity, income from investments or any other source, such as to qualify the applicant in that category.

In the Financially Independent Persons category, the best advice that can be offered is that a Chartered Accountant should certify the financial independent value, that is, Nett Value of the assets of the applicant in order to avoid disappointment down the line.

Another important “how to” is to investigate fully in the “spousal” categories as to what the specific requirements would be. In terms of South African Immigration and Civil Law, a common law union/civil union, customary or tribal/labola union is all on the same level. How to ensure that an effective application is made to qualify before a national spouse would be to ensure that all proper documentation and records including financial codepends proof is put together.

A final “how to” would relate to determine whether an applicant had any ancestral or links to South Africa through a parent or grandparent and this would not necessarily just mean whether that person had a parent who was a citizen but perhaps, at certain stages of time, a Permanent Resident of South Africa.

The above list is not an exhaustive list at all but rather a guideline of some of the problem areas.

Julian Pokroy is one of South Africa’s leading immigration specialist attorneys, www.immigration.org.za, and currently heads the Law Society of South Africa’s Immigration and Refugee Law Specialist Committee and the Immigration, Nationality and Refugee Law Committee of the Law Society of the Northern Provinces. He is a member of the South African Law Reform Commission Committee.

This article appeared in the June 2017 issue of HR Future magazine.

Implementation of reinstatement awards

An arbitration award reinstating an employee does not cover the period between the award and its implementation, and the basis for a claim covering such period is contractual and is not to be found in the LRA.

The Labour Appeal Court, in Coca Cola Sabco (Pty) Limited v Harold van Wyk (2014) 25 SALLR 109 (LAC), had the opportunity of considering the following important issues:

(a) In the scenario where an arbitration award orders the reinstatement of an employee retrospectively from a certain date to the date of the award, without any loss of benefits and on terms and conditions of employment that existed no less favourably than prior to the relevant dismissal, does such award cover the period between the date of the award and the implementation of same?
(b) If such reinstatement award does not cover the said period between the date of the reinstatement award ito the implementation of such award, then on what basis can an employee so dismissed institute a claim for remuneration and benefits relating to such period?

Overview

This is an unopposed appeal against the judgment of the Labour Court.

Pertinent facts of the case

The respondent was employed by the appellant since 1996. During September 2001, whilst still employed by the appellant, he was seriously, but not permanently, injured in a motor vehicle collision. On 2 January 2002, he returned to work.

Employee dismissed for incapacity ill-health

During June 2003, he was dismissed for incapacity due to ill health. He referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). Conciliation failed and he referred the dispute for arbitration.

CCMA award: dismissal procedurally fair but substantively unfair

On 5 August 2004, a Commissioner, acting under the auspices of the CCMA, found that the respondent’s dismissal was procedurally fair but substantively unfair.

Reinstatement retrospectively awarded

The commissioner issued the following award:

“1. The dismissal of the Applicant was substantively unfair and procedurally fair.
2. The Respondent is ordered to re-instate the Applicant retrospectively without any loss of benefits to his former position and on terms that are no less favourable prior to the dismissal.
3. The Respondent is further ordered to pay the Applicant arrears salary in the amount of R33 507.10 calculated at R703.00 per week X 4.333X11 months [for the preceding 11 months].
4. Payment of the above amount to be paid on or before 1 September 2004.
5. There is no order as to costs.”

Review application not successful

The appellant was not satisfied with the outcome and launched a review application against the Commissioner’s award. The review application was dismissed with costs on 16 November 2007.

Application for leave to appeal not successful

On 11 March 2008, an application for leave to appeal suffered the same fate.

Petition for leave to appeal to Labour Appeal Court not successful

The appellant petitioned the Judge President. On 31 July 2008, the Labour Appeal Court refused the appellant’s petition for leave to appeal.

Registrar of court issued writ of execution against the appellant’s movable property

On 19 February 2009, the registrar of the Labour Court issued a writ of execution against the appellant’s movable property.

The respondent reinstated

After protracted negotiations, the respondent was reinstated on 2 March 2009.

The relevant parts of the writ read as follows:

“and to cause to be realised of such movable goods by public auction the sum of:
(1) R33 507.10 (thirty-three thousand five hundred and seven rand ten cents) awarded as compensation to the Applicant in terms of the arbitration award dated 5 August 2004 confirmed under labour court case no: JR2166/04 on 16 November 2007 attached to this writ marked Annexure ‘A’.
(2) R164 489.34 (one hundred and sixty-four thousand four hundred and eighty-nine rand thirty-four cents) (outstanding salary calculated at R703.00 per week x 4.333 x 54 months since 1 September 2004) plus interest. See Equity Aviation Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others (CCT88/07) 2008 ZCAA 16.
(3) Interest on R33 507.10 at the rate of 15.5% per annum (monthly compounded) calculated from 5 August 2004 to date of final payment, obtained and recovered by judgment of the Labour Court dated 11 March 2008 in the case mentioned in the preceding paragraph, plus R387.60 for the taxed costs and charges incurred in issuing this writ. Attached to the writ is the court order dated 11 March 2008 under labour court case no JR2166/04 marked Annexure ‘B’.”

Approach to Labour Court to set aside writ of execution, paragraph 2

The appellant approached the Labour Court with an application to set aside the writ of execution. Paragraphs 1 and 3 of the writ were not contested in the court a quo. The appellant only took issue with paragraph 2 thereof.

Remuneration in respect of preceding 11 months

The court a quo carefully analysed the award of the commissioner and correctly concluded that:

“Despite the inelegant and possibly ambiguous terms of his award, it had the effect of reinstating the first respondent with retrospective effect, on conditions not less favourable than those that pertained prior to dismissal, save that in regard to his salary, and in the exercise of the commissioner’s discretion, the applicant was obliged only to pay the third respondent the amount that he would have earned in the preceding 11 months, i.e. R33 507.10. This is not an award of compensation, whatever labels the first respondent may have affixed to it in paragraph 1 of the writ.”

Remuneration post reinstatement: months 12 – 54

The court a quo, however, went further and held that:

“an employer’s liability for remuneration post reinstatement falls within the scope of the award of reinstatement and being a judgment ad pecuniam solvendam it can be enforced by way of a writ of execution”.

The court a quo then offered a practical solution to the problem and said the following:

“Where a judgment for payment of monies that are not quantified in the judgment itself but are capable of being quantified without difficulty, it is incumbent on a judgment creditor to prove the nature and extent of the judgment debtor’s liability, for example, by way of affidavit.”

Quantification not properly done

The court a quo concluded that paragraph 2 of the writ of execution was not properly proved. According to the court a quo, the quantification of paragraph 2 should have been done before the registrar by way of affidavit.

Order of the Labour Court

The court a quo issued the following order:

“1. The writ of execution issued on 19 February 2009 is varied by the deletion of paragraph 2 thereof.
2. The first respondent is given leave to apply for the issuing of a fresh writ, on affidavit, in which the first respondent quantifies the applicant’s liability to the first respondent for wages payable consequent on the order of reinstatement.
3. There is no order as to costs.”

Grounds of appeal

This appeal is directed against paragraph 2 of the court a quo’s order. The appellant argued that the court a quo erred in finding that an award for reinstatement “required the payment for the full period up to and including the date of compliance”. It submitted that awards for reinstatement could not extend to a date beyond the date of the award. It further submitted that awards for reinstatement could not serve as a basis for a common law contractual entitlement to automatic payment of remuneration that would have been payable had the employee not been unfairly dismissed.

Findings of the labour appeal court

The issues which the Labour Appeal Court was called upon to decide were, firstly, whether an award of reinstatement automatically entitled an employee, in whose favour such award was made, to amounts post the date of the award until the implementation date or whether the claim in respect of the amounts subsequent to the date of the award should be claimed separately and, secondly, whether such amounts could be claimed by way of issuing a writ of execution accompanied by an affidavit setting out the amount of the claim.

Effect of reinstatement order

In Equity Aviation Services (Pty) Ltd v CCMA and Others 2009 (1) SA 390 (CC), the effect of a reinstatement order was explained as follows:

“[36] The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal. The ordinary meaning of the word “reinstate” means that the reinstatement will not run a date from after the arbitration award. Ordinarily then, if a Commissioner of the CCMA order the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the Commissioner decides to render the reinstatement retrospective. The fact that the dismissed employee has been without income during the period since his or her dismissal must, among other things, be taken into account in the exercise of the discretion, given that the employee’s having been without income for that period was a direct result of the employer’s conduct in dismissing him or her unfairly.”

The effect of a reinstatement order, therefore, was to revive the contract of employment which was terminated by a dismissal.

Date of reinstatement: choices

On the date on which the reinstatement order was made, the commissioner could order that the reinstatement be effective from the date of the order or retrospectively from any date not earlier than the date of dismissal.

Reinstatement cannot run from a date after the issuing of the arbitration award

Importantly, for purposes of this matter, the commissioner could not order that the reinstatement would start from a date after the issuing of the arbitration award.

Remedy available to employee to cover period between date of award and actual implementation

This begged the question: what remedy, if any, did the employee have to claim the money due to him/her for the period between the date of the award and the actual implementation thereof.

Compensation and back-pay

The money paid to an unfairly dismissed employee, consequent to a retrospective reinstatement order, was not compensation.

Mutually exclusive

Compensation and back-pay could only be granted in the alternative and were mutually exclusive.

Back-pay does not cover the period between the date of the award and actual implementation

The back-pay ordered by the Commissioner could, therefore, only refer to the period between the date of dismissal and the date of the order and did not entitle an employee, without more, to remuneration between the date of the award and the actual date of implementation.

LRA does not provide a cause of action

The Labour Relations Act 66 of 1995 (“the LRA”) did not cater for such relief. Ordinarily an employer, who complied with an order of retrospective reinstatement and back pay, would not only pay the back pay but also the remuneration that the employee was entitled to between the date of the order and the implementation date, if the employee tendered his services during that period.

Since the LRA did not cater for relief between the date of the award and the date of implementation, how then should a reinstated employee recover that money if he tendered his services, during that period?

Labour Court’s viewpoint

According to the court a quo, such money could be recovered by simply quantifying it and filing an affidavit with the registrar.

In National Union of Metal Workers of South Africa and Others v Hendor Mining Suppliers, a Division of Marchalk Beleggings Pty Ltd [2014] JOL 32068 (LC), the learned acting judge was also of the view that the reinstatement order was the cause of action on which the judgment debt was claimed.

She further said the following:

“[20] It is apparent, in citing the dicta in the Equity Aviation matter, that the Constitutional Court in the Billiton matter reinforce the notion that the reinstatement order arises from the confines of the Labour Relations Act and is reinforced in terms of an order of court. To the extent that the employer or company appeals that decision, it does so with the risk that the order of reinstatement continues pending a reversal, if any, of that order by a higher court … [23] In other words, the possibility of paying additional back pay, pursuant to an appeal process to one or more of the higher courts, is a risk inherent in the process. The company’s argument in this court – that the prospective part of the labour court order commencing from the period after 16 April 2007 and terminating on 28 September 2009 is subject to a properly pleaded contractual claim … is not only odd but perverse.”

Labour Court’s viewpoint not correct: it is a contractual claim

It seems to the Labour Appeal Court that the court a quo and the learned acting judge in Hendor Mining Suppliers conflated the reinstatement order and the contractual duty to pay an employee for work done. The reinstatement order – as stated above – only served to revive the contract of employment. The rights and obligations of the parties would, therefore, as in the beginning, again be governed by the contract of employment.

In Johannesburg Municipality v O’ Sullivan 1923 AD 201, it was said that:

“In other words, so long as the employee is bound to devote his whole time and attention to the council’s service and is consequently not free, when there is no work for him to do, to dispose of his labour elsewhere, so long is the council bound to pay him his weekly wage.”

Therefore, if the employee, after the reinstatement order and during the time that the employer exercised its review and appeal remedies to exhaustion, tendered their labour they did so in terms of the employment contract. They were, accordingly, entitled to payment in terms of the contract of employment.

The claim was, therefore, a contractual one wherein the employee would have to set out sufficient facts to justify the right or entitlement to judicial redress.

What the employee is required to prove

The employee would, inter alia, have had to prove that the contract of employment was extant; that they tendered their labour in terms thereof and that the employer refused or was unwilling to pay them in terms of that contract. The employer, on the other hand, would have all the contractual defences at its disposal.

The court a quo was, in the view of the Labour Appeal Court, incorrect in its conclusion that “awards of reinstatement, by their very nature, required the payment for the full period up to and including the date of compliance”. All that an award for reinstatement did was to revive the contract of employment. A reinstatement award/order could not extend to a date beyond the date of the order nor could it serve to form the basis of a common law contractual entitlement.

Route to be followed by employee

It was only after a contractual claim in the civil courts or under section 77 of the Basic Conditions of Employment Act (“the BCEA”) had been instituted and pronounced upon that it could be said that the employer was a judgment debtor against whom a writ could be issued.

Section 77 of the BCEA read as follows:

“77 Jurisdiction of Labour Court

(1) Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the labour court has exclusive jurisdiction in respect of all matters in terms of this Act, except in respect of an offence specified in sections 43, 44, 46, 48, 90 and 92. …

(3) The labour court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract …”

The order of reinstatement was not a judgment dealing with the consequent damages for the breach of the contract.

The risk that an employer took, relating to the accumulated financial burden caused by delays in the review and appeal process, had nothing to do with the cause of action. The risk to the employer remained and the rewards to the employee would also be intact if the claim was prosecuted properly and timeously.

In summary, a reinstatement award did not cover the period between the award and its implementation. Should an employer refuse to pay an employee for the said period, then the employee had a contractual claim – which was a totally different cause of action – against the employer.

The Labour Appeal Court, therefore, made the following order:

• the appeal was upheld;
• paragraph 2 of the court a quo’s judgment was deleted; and
• there was no order as to costs.

Dr Brian van Zyl is a Director of labour law firm Van Zyl Rudd and Associates, www.vanzylrudd.co.za.

This article appeared in the June 2017 issue of HR Future magazine.

HR is in the Cloud

Cloud-based solutions give HR a shot in the arm. The advent of Cloud-based software solutions has placed many organisations in a conundrum as, over the past number of years, huge investments have been made in order to get on-premise style solutions in place. This entailed huge costs associated with the purchase of the software, the purchase of the required hardware and, of course, all those costs associated with the implementation and training for optimal use of the selected solution.

Once all these once-off costs were absorbed or capitalised, an additional budget had to be set aside for the annual maintenance fees of the system. In essence, companies have spent loads of money on their current installed systems, and are not too excited about spending more money to change. When we then add to the fact that the Human Resources team is a cost centre within the organisation, the challenges they have faced and will face to receive additional budget for moving systems will be difficult to say the least.

But, thankfully, the advent of Cloud-based solutions has changed the whole landscape, through the introduction of subscription-based software, where you only pay for what you use, when you use it and how you use it, with the added advantage of removing all the costs associated with hardware and the relevant third party software.

So it’s a major mind set change that needs to happen in order to firstly accept that Cloud-based solutions are the way all solutions are moving. The day is coming when there will be no other choice, and organisations can take advantage of the benefits that Cloud-based solutions have to offer.

Having said this, it’s easy to see that it is inevitable that the HR team will need to move to a Cloudbased solution sooner rather than later. Many other functional areas in the organisation have already found that the Cloud has lived up to its promises, and there is no reason to believe that this will be any different for the HR team. Cloud-based solutions will not only change the face of HR by empowering them to becoming more strategic players, but will also assist and empower employees in being more productive.

I guess one of the biggest challenges is that not everybody in the organisation, especially the decision-makers, truly understands the benefits that a Cloud-based solution can offer the HR team so, in summary, here are the top four.

1. One of the biggest benefits that an organisation experiences in using Cloud software is its very nature. The software author is able to provide its entire client base with regular software releases and updates in a seamless manner, as they are only required to update the single version that is running in the Cloud, as opposed to having to perform one-on-one updates at each and every client site. This results in the user receiving updates on a regular basis throughout the year, as opposed to the normal annual update which can play havoc with system usage during the update period.

2. The second benefit is that, by receiving these regular updates to the system, the HR team can stay relevant with current technology and functionality. The need for year long waits for new innovations or functionality to be built into the software is pretty much negated.

3. The third benefit that users experience is an intuitive web-based interface to the system, much like if they were accessing Facebook or other social platforms. Cloud-based technology is developed utilising the latest technological advancements, and is designed to explicitly move away from the clunky and laborious menu driven processes that are inherent in legacy solutions.

4. The fourth benefit solves the challenge many organisations are experiencing today, dealing with workforce mobility. Today’s workforce is seldom centrally located. Even the HR team, with the advent of the Business Partner concept, has moved to be in closer proximity to the various lines of business. Cloud solutions ensure that not only will the HR team always have access to their entire HR solution but so too will managers and employees have access to their relevant components. This makes the HR function available anywhere and at any time. Long gone are the days where an employee or manager could only interact with HR during prescribed office hours.

The whole transition to a Cloud-based solution is really one of streamlining processes and moving ownership of the various functional areas to where they belong. HR is moving to more of a custodial role, and line management and employees are now being provided with the relevant tools to enable them to carry out HR functions with ease, moving ownership to where it belongs. A good example is the Performance Management process. HR is the custodian through the creation and setting up of all the relevant parameters, that is, how it should happen, and what employees and managers need take ownership by driving the process, as this is where it all happens, at the coal face!

If the above benefits are not enough to convince the executive that now is the time for HR to move into the Cloud, nothing will.

In summary, when considering the use of a Cloud-based HR solution, you should look beyond just cost savings, and rather focus on the broader day-to-day benefits the organisation will achieve. In addition, Cloud-based solutions will force the organisation to focus on their employees by ensuring that they have all the right tools and information at their disposal to perform optimally in their jobs.

Rob Bothma is an HR Systems Industry Specialist at NGA HR, a Fellow of the Institute of People Management and past non-executive director and Vice President of the IPM, co-author of the 4th Edition of Contemporary Issues in HRM and member of the Executive Board for HR Pulse.

This article appeared in the June 2017 issue of HR Future magazine.

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Overpaying is as bad as underpaying

Moderation is the name of the remuneration game.

Employee retention, employee engagement and employee motivation … these are all terms we associate with the ability to compete in the 21st century. And, of course, money. How else would we get those ever so valuable employees to remain at our organisations, performing at their peak? However, the appropriate remuneration for these employees is vital. A stingy package will of course lose these employees but, believe it or not, contrary to popular belief, over-compensation could have the very same effect! Overpayment can even occur by mistake when employees stay in entry to mid-level positions for too long, when they reach a dead end but are not developed or promoted, or when they fail to meet the expectations of the organisation but continue to receive raises. These are red flags to look out for.

We all know that underpaying an employee will leave them slacking, uncommitted and peeved, but overpaying them can lead to the following problems:

1. The wrong type of turnover

Over-paying can have two different types of negative turnover. The first of such may be linked to the case of Google where recent headlines read, “Google’s self-driving car researchers quit after firm gave ‘supersized’ bonuses to try and keep them”. What had happened is that early-staffers in the car division at Google received pay cheques and bonuses based on the performance of the project. The fatal mistake that Google made was that the employees no longer needed job security anymore. The multimillion dollar pay cheques gave them enough capital to move on.

Another type of turnover you want to avoid is retaining the employees that aren’t doing your organisation justice. It seems obvious that, if an employee is slacking, the simple solution would be to fire them. However, it generally is a simple solution filled with hassles, headaches and lawsuits. The employee that is slacking (probably due to over-security in their job) will be reluctant to leave because, in all essence, why should they leave their current job for a job that will most likely be paying less? Other than feeling overly secure, some overpaid employees will become complacent. They won’t pursue alternative opportunities for advancement within the organisation or more challenging work ethics that would help them grow. Retaining the wrong employees and lack of retention is reason enough to not over-remunerate. But the list continues … Overpaying employees can also lead to:

2. Increased expectations

Have you ever watched a TV competition like MasterChef and noticed that each season is even bigger and better than the last? The competition becomes more outrageous and more difficult so that it develops into a more adrenaline pumping affair in order to upstage the previous season. Perhaps the overall value of the prize was half a million dollars but to “out-do” the previous season, they announced that the prize would be ONE MILLION DOLLARS. But now they are stuck, because if they had to go back to the normal prize amount in the next season, it would be a bit of a let-down, to say the least. The moral of the story, is that once you have upped the name of the game, it has to remain the same, or increase. An employee that receives an extra-large bonus will definitely display disappointment when the next bonus is not the amount they were hoping for as per the previous expectation you unintentionally created.

3. Binding yourself to a high salary

Similar to the previous point, a high salary for one employee may lead to expectations from another employee. The concept of “fairness” in the 21st century has led to all types of workplace and life disputes, court cases, newly formed legislation (the list goes on), and carries a lot of weight in the workplace. Employees compare themselves to one another and expect to be treated fairly in the workplace. Thus, if one employee believes that s/he is “similarly situated” (alike in all relevant ways for purposes of a particular decision or issue) to another employee, they will expect the same remuneration. If one of the employees in the “similarly situated” duo receives higher compensation than the other, you are quite likely to run into a bit of unwanted drama. In essence, you can expect to pay each of the duo, the higher salary.

4. Profit cycles

Cash is limited and profits have the tendency to come in cycles. When overspending occurs in one region of the organisation, it often means that the effects will be felt elsewhere. Overpaying one employee for one month will be compounded for each month s/he is overpaid. Overpaying this employee’s compounded monthly salary for years could affect the company. Overpaying several employees compounded monthly, compounded yearly salary could be disastrous. This expenditure could be distributed equally in your firm to balance all categories. Paying each employee the right amount would ensure that each department functions appropriately.

These issues dictate why it is important to get the remuneration numbers just right. But how do you know what the right remuneration amount is?

The solution

Determining salaries can be an extremely complex job, especially if you are running a small business. It is unlikely that you will call up a competitor to enquire what they are paying their staff and even more unlikely that they will respond considerately if you did ask the question. Additionally, when you are hiring, common etiquette is to ask the prospective new employee how much they were previously paid. If this isn’t an obstacle for you, however, it may prove to be an obstacle of the truth. The prospective employee may inflate the number in pursuit of a higher salary.

The best way to determine pay is via a salary survey. By referencing, say, the median salary for a specific position whilst taking the region, industry, company size (and so forth) into consideration, you can determine a competitive and fair salary for each of your company’s employees. Small firms have the tendency to believe this is an expensive exercise but surprisingly it is extremely reasonable. It may otherwise be that you may have the belief that the positions at your company are too complex in nature to be categorised according to a salary survey, but most surveys are able to accommodate all types of clients.

Conclusion

Despite common belief that excessive pay may be the solution for retention and motivation, it may just well prove to do the opposite. Remuneration reinforces the saying, “Everything in moderation”.

Dr Mark Bussin is the Executive Chairperson at 21st Century Pay Solutions Group, a Professor at University of Johannesburg, Professor Extraordinaire at North West University, Chairperson and member of various boards and remuneration committees, immediate past President and EXCO member of SARA, and a former Commissioner in the Office of the Presidency. Daniela Christos is a Candidate Human Resources Practitioner at 21st Century Pay Solutions Group.

This article appeared in the June 2017 issue of HR Future magazine.

Manage your break ups in a professional way

The exit interview is an invaluable source of why people leave your company.

Breaking up is never easy to do – especially when it’s a professional relationship. Yet understanding the reasons why employees resign is one of the most valuable tools in an organisation’s arsenal. Here are three reasons why a good Exit Interview is worth its weight in gold.

Local and international headlines have seen their share of high-profile resignations recently. Kenya Airlines’ head of marketing resigned, while the finance sector was hit by four Skye Bank executive directors resigning. In Nigeria, the banking sector has faced a high staff turnover for some time, with researchers questioning managerial styles.

Breaking up can be hard to do – which is why the vast majority of Top Employers take the time to understand resignations. Employee exits can be an important strategic tool that many organisations overlook.

The Top Employers Institute, which recognises excellence in the conditions employers create for their people globally, helps organisations stay on top of current HR Best Practices. Its research has revealed that, in Africa, 88% of certified Top Employers have a formally defined channel in place whereby HR officers conduct exit interviews with all employees and an additional 12% have a formal channel in place using a specialist external party to conduct a more in-depth qualitative exit interview.

As the saying by Michelle Ventor goes, ‘People come into your life for a reason, a season or a lifetime. When you figure out which it is, you’ll know what to do.’ This may be hard to do because it can be difficult to face uncomfortable truths. But, if a company loses good talent, it can be costly not to understand the reasons.

With this in mind, here are three key reasons why an exit interview is worth its weight in gold.

1. A rare opportunity for free and honest feedback

“In today’s knowledge economy, skilled employees are the asset that drives organisational success. Thus companies must learn from them — why they stay, why they leave, and how the organisation needs to change. A thoughtful exit interview process can create a constant flow of feedback on all three fronts,” argue Everett Spain and Boris Groysberg in the Harvard Business Review.

Exit management should be seen as an area for growth and learning – a rare opportunity for a company to get free and honest insight. If there is a pattern in the reasons for employees leaving, it can be time for something to give.

DHL Vice-President of Human Resources for Sub-Saharan Africa, Paul Clegg, concurs. A certified Top Employer in 12 African countries, DHL prides itself on having a culture of appreciation and openness that contributes to a generally low staff turnover – and this extends to the exit interview process. We analyse feedback from our exit interviews to determine trends and perform root-cause analysis. We have a culture of continuous improvement at DHL and we use exit interviews as an additional channel to gain feedback on what we’re doing as well as to further identify areas which require improvement. The single most important aspect of the exit interview, believes Clegg, “is seeing if we can prevent similar terminations from occurring again”.

Seventy-three per cent of Top Employers on the continent report on exit management KPIs. Of these KPIs, the most frequently used are 1) tracking the number of years the employee worked for the organisation and 2) obtaining specific reasons why the employee is leaving. These reasons are then compared to previous years so that trends can be analysed.

2. A good exit interview can give you a competitive advantage

An exit interview should be aimed at establishing the reasons for the employee leaving the organisation. These insights should be fed into retention strategies. Knowing why an employee is leaving can also generate useful insights into the market and competitor offerings.

According to Spain and Groysberg, using the exit interview as an opportunity to learn about HR benchmarks (salary, benefits) at competing organisations and to see how your organisation stacks up against other employers in terms of time off, ability to advance, different benefits, pay packages and so forth, is one of six key outcomes that a good exit interview should strive for.

Top Employer British American Tobacco South Africa (BATSA) ensures that data from their exit interviews is fed directly into the business strategy, explains Talent Manager Riana Ohlson. “At BAT we aim to conduct exit interviews with all employees who resign. The exit interview is conducted by an HR officer in order to determine what the reason for leaving is, as well as to provide us with meaningful insights into retention opportunities for the future. These exit interviews also shed light on our competitive landscape”.

In order to gain these insights, however, it’s crucial to follow a few golden rules. To improve the quality and veracity of the exit interview process, the Top Employers Institute recommends that the interview not be carried out by the employee’s immediate superior and, where possible, is anonymous. The Top Employers Institute reports that 63% of Top Employers in Africa have a formally defined channel in place to use anonymous questionnaires for exit interviews.

An anonymous exit interview can provide deeper insights, as it gives the employee the freedom to express their true concerns without feeling that he or she will burn their bridges when leaving. It can take place in the form of a questionnaire or be conducted by a third party.

3. A good exit interview is the first step in recruiting future staff

An exit interview is not always the end of the road with an employee. In fact, it can be an opportunity to learn to do better. HR expert Susan M Heathfield writes in The Balance that it’s crucial to commit to taking the employee’s feedback on board and end the interview graciously. In that way they leave the organisation more likely to be an ambassador than a critic.

Andre Muller, Head of HR at Top Employer Pernod-Ricard, says, “We believe that we create ambassadors for life when people join our business and place enormous importance on the exit process being treated as professionally as the on-boarding process. As a result, people often want to come back after they have left”.

In a rapidly changing HR environment, employers need all the understanding they can get. Exit interviews open a valuable door to that insight. And a good employer will take care to ensure that the quality of the exit interview is high. It is no coincidence that 98% of Top Employers on the continent ask HR to evaluate the quality of the exit management process.

Billy Elliott is the Country Manager: Africa for the Top Employers Institute.

This article appeared in the June 2017 issue of HR Future magazine.

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