In the dynamic and diverse landscape of South African workplaces, having well-defined employment policies is crucial for both employers and employees. These policies not only ensure compliance with labour laws but also foster a fair, safe, and productive work environment. Let’s explore the significance of various employment policies and what South African labour law and the courts have established about their necessity.
The Legal Foundation for Employment Policies
Schedule 8: The Cornerstone Requirement
The most fundamental requirement for workplace policies comes directly from Schedule 8 of the Labour Relations Act. The Code of Good Practice: Dismissal explicitly states:
“All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood.”
This is not merely a suggestion – it is a directive that forms the basis of fair labour practice in South Africa.
Key Employment Policies
1. Disciplinary Policy
Legal Foundation: Schedule 8 of the Labour Relations Act mandates that all employers adopt disciplinary rules. The Code emphasizes that “an employer’s rules must create certainty and consistency in the application of discipline.”
Court Guidance: The Labour Courts have consistently emphasized the critical importance of following established disciplinary policies. Courts have established that disciplinary policies are not mere guidelines but binding procedures that employers must follow. When disciplinary codes are incorporated into employment contracts, employees are entitled to insist on compliance with these procedures. Employers cannot deviate from their own disciplinary codes without compelling justification.
2. Attendance and Absenteeism Policy
Legal Principle: The CCMA guidance states that “the purpose of a disciplinary code and procedure is to regulate standards of conduct of employees within a company or organisation. The aim of a workplace disciplinary code is to provide mechanisms to correct unacceptable behaviour and to create certainty and consistency in the application of discipline.”
Clear attendance policies ensure that absenteeism is managed fairly and consistently, protecting both employer and employee rights.
3. Vehicle and Cell Phone Policy
Practical Necessity: As noted in labour law guidance, “There is no law against any employer making rules and regulations to control the behaviour of his employees – rules and regulations stipulating what employees are permitted to do and what they are not permitted to do on or off the workplace… Provided that the rules are reasonable, lawful and fair, in terms of all the circumstances and the employer’s operational requirements, the employer can institute whatever rules he wishes to.”
Such policies help manage company resources and establish clear boundaries for employee conduct.
4. Discrimination and Harassment Policies
Constitutional Imperative: The Employment Equity Act prohibits unfair discrimination and harassment. Section 6(3) states that “Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination.”
Court Recognition: The Labour Courts have consistently emphasized the seriousness of workplace harassment, describing it as an utterly odious form of misconduct that offends constitutionally guaranteed rights including equality and dignity. Courts have established that employers carry a legal obligation to protect employees from any form of harassment.
5. Sexual Harassment Policy
Statutory Requirement: Section 60 of the Employment Equity Act creates vicarious liability for employers who fail to take necessary steps to eliminate sexual harassment. The Code of Good Practice requires that every employer adopt a sexual harassment policy.
Legal Consequence: As established in labour law, if the employer fails to take the necessary steps and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.
6. Health and Safety Policy
The Occupational Health and Safety Act requires employers to provide a safe working environment, making comprehensive health and safety policies both a legal requirement and a moral imperative.
Why Employment Policies Are Essential: Legal and Practical Perspectives
1. Legal Compliance
Schedule 8 of the Labour Relations Act doesn’t just suggest that employers should have disciplinary rules – it mandates them. The Code states that these rules “must create certainty and consistency in the application of discipline.”
2. Procedural Fairness Protection
The Labour Courts have repeatedly emphasized that employers cannot deviate from their own policies without compelling reason. Courts have consistently shown intolerance for employers who fail to follow their own procedures.
3. Risk Management
The CCMA notes that “disciplinary procedures need to be fair” and that proper procedures help employers manage workplace behaviour effectively while protecting against unfair dismissal claims.
4. Employee Rights Protection
Well-drafted policies ensure that employees understand their rights and obligations, creating a framework for fair treatment in the workplace.
The Critical Importance of Proper Communication
Labour law experts emphasize that “it is essential that the employer’s Disciplinary Code and Procedure be communicated to all employees in writing, in a language that the employees can clearly understand.” Schedule 8 requires that standards of conduct are “made available to employees in a manner that is easily understood.”
As one labour law commentary notes: “Obviously, an employee cannot be disciplined for breaking a rule that he or she was unaware of and therefore, it is important that the employer’s Disciplinary Code and Procedure is communicated to all employees.”
Progressive Discipline Framework
Schedule 8 establishes the principle of progressive discipline: “The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.”
Consistency in Application
The Code of Good Practice requires that “the employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.”
Conclusion
Employment policies are not administrative luxuries but legal necessities mandated by South African labour law. From the explicit requirements of Schedule 8 for disciplinary rules to the Employment Equity Act’s demands for harassment policies, the law is clear: employers must have comprehensive, well-communicated policies in place.
The courts have consistently reinforced that these policies are binding commitments that employers must follow. Deviation from established policies without compelling reason will not be tolerated by the courts.
Introducing Our Employment Handbook
To help businesses navigate these legal requirements, we have crafted a comprehensive Employment Handbook that incorporates all the legal mandates discussed above. This handbook includes:
- Disciplinary codes that meet Schedule 8 requirements
- Sexual harassment policies compliant with the Employment Equity Act
- Progressive discipline procedures endorsed by the courts
- Clear communication guidelines ensuring legal compliance
- Consistent application frameworks protecting against discrimination claims
Our policies are based on the actual statutory requirements and incorporate insights from established case law, ensuring your workplace policies are not just comprehensive but legally sound.
Contact us today to get your copy and ensure your workplace meets all legal requirements while protecting both employer and employee rights.
Legal Sources Referenced:
- Schedule 8 of the Labour Relations Act 66 of 1995: Code of Good Practice: Dismissal
- Employment Equity Act 55 of 1998, Section 60
- CCMA Disciplinary Procedures Guidelines
This article provides guidance based on South African labour law as it stands. For specific legal advice regarding your particular circumstances, please consult with qualified labour law practitioners.
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