A grievance is any dispute, disagreement or conflict between an employee and employer relating to a violation of the employer-employee agreement, either as per legislation, collective bargaining agreement, employment offer, job description or policies and procedures. Grievances include issues such as management of employees, wages, and other issues employees may have concerning their working conditions. This article answers some questions that arise concerning grievances in contracts of employment. It focuses on the grievance handling procedure, misconduct, terminating employment contracts, disciplinary proceedings and registering codes of conduct.

 

What is the grievance handling procedure?

Although the Labour Act [Chapter 28:01] (The Act) is the primary legislation governing Labour matters, the Act does not lay down a standard grievance handling procedure neither does it stipulate what ought to be included or omitted in grievance handling procedures. Consequently, grievance handling mechanisms are industry-specific as they are normally contained in several Collective bargaining Agreements for different industries, but in no uniform format. 

 

The basic structure of most grievance handling mechanisms within CBAs can be summarised as follows: –

Step 1- An aggrieved employee or a group of employees must first put verbally or in writing the grievance to the immediate supervisor within two days which supervisor will attempt to resolve the grievance by holding a hearing of the grievance. Employee(s) may be represented by a member of the workers’ committee or another employee of his or her or their choice during the hearing. If necessary, the supervisor will offer counselling, with a view to arriving at an equitable settlement of the grievance. Upon hearing the grievance, the supervisor will evaluate the grievance and communicate the decision to the aggrieved employee or group of employees.

 

Step 2- Any employee dissatisfied with the supervisor’s decision will submit a written grievance in the prescribed form to the Department Head. The department head shall do his or her best to resolve the grievance and communicate his or her decision in writing to the aggrieved employee or group of employees within two days.

 

Step 3- In a case where the decision of the department head or equivalent is not acceptable, the matter shall be referred to the works council in writing within a period of five days by the aggrieved employee or group of employees. The works council may hear the aggrieved employees and any representative of his, her or their choice and shall make its ruling which shall be communicated in writing to the aggrieved employee or group of employees within a period of five days from the date of receipt of the appeal. If the grievance is not resolved, the matter shall be referred within five days to the Grievance and Disciplinary Committee by the chairman of the works council, together with all documentation.

 

Step 4- The Grievance and Disciplinary Committee shall make a decision within 14 days of receipt and communicate it in writing to the aggrieved party, management and the chairman of the works council.

 

Step 5- If a grievance remains unresolved after the expiry of 30 days from the date of its reference to an immediate supervisor, the aggrieved employee may refer the grievance to a designated agent, who may then deal with it in terms of the Act.

 

Step 6 – Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated. Where the designated agent redresses a dispute, he/she makes a final decision as to the rights of the parties.[1] An attempt to redress the dispute is done through conciliation in terms of s 93 of the Act.

 

What constitutes serious misconduct?

The National Code of Conduct provides a list of acts that constitute serious misconduct.[2]

• Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.
• Wilful disobedience to a lawful order.
• Wilful and unlawful destruction of the employer’s property.
• Theft or fraud.
• Absence from work for a period of five or more working days without leave or reasonable cause in a year.
• Gross incompetency or inefficiency in the performance of his or her work.
• Habitual and substantial neglect of his or her duties.
• Lack of a skill which the employee expressly or implied held himself or herself out to possess.[3]

What are the grounds for terminating a contract of employment?

A contract of employment can be terminated at the employer or employee`s instance. An employee can terminate his/ her contract of employment upon death, through resignation or by carrying him/herself in a manner that is inconsistent with the express or implied terms of his/ her employment contract.

• An employer can terminate a contract of employment by sanctioning a penalty of dismissal after conducting a disciplinary hearing.

• The employer can also terminate a contract of employment by giving notice of termination in terms of provisions of section 12(4)(b) of the Act, namely that;

• The termination on notice is made in terms of an employment code which is registered in terms of section 101(1) of the Labour Act.[4]
• The employer and employee mutually agree in writing to the termination of the contract on notice.
• The employee was engaged for a period of fixed duration or for the performance of a specific task and the contract of employment is terminated on the expiry of such period or on the performance of such task.
• The termination is pursuant to retrenchment.

How are disciplinary proceedings conducted?

Where an employment Industry does not have a registered employment code of conduct, disciplinary hearings will be conducted in terms of the National/ model code of conduct Statutory Instrument 15 of 2006 (SI 15/06).

Where an employer has good cause to believe that an employee has committed a serious misconduct, the employer may suspend such employee with or without pay and benefits and must forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.[5] Upon serving the employee with the suspension letter, the employer must, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee.

 

At the hearing, an employee has the right: –

• To at least three working days’ notice of the proceedings against them and to be informed of the charge their facing.
• To appear in person before the employer or the employer’s representative or disciplinary authority and be represented by either a fellow employee, worker’s committee member, trade union official/officer or a legal practitioner.
• To call witnesses and have them cross-examined.
• To be informed of the reasons for a decision.
• To address in mitigation before the ultimate penalty is imposed.

Once the hearing has been conducted the employer must serve a notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved. The determination or order served on an employee must provide for back pay and benefits from the time of the summary suspension.

 

What is the procedure for Appeals?

 

If an employee is aggrieved by the determination made by their employer they may in writing, note an appeal within seven working days with the Appeals officer or Appeals Committee.[6] The Appeals Officer or Appeals Committee, as the case may be, may call for a formal hearing to hear the appeal or decide from the record submitted within 14 working days.

An employee who is aggrieved by a decision or manner in which an appeal is handled by his or her employer may refer the case to a Labour Officer or an Employment Council Agent, within 7 working days from the day of receipt of such decision.

 

What are the powers of a labour officer?

 

Once a dispute has been referred to a labour officer they will attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration. If the dispute is settled by conciliation, the labour officer shall record the settlement in writing.  If the dispute is not settled within thirty days the labour officer will issue a certificate of no settlement to the parties to the dispute. After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute may either: –

• refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or
• may, with the agreement of the parties, refer the dispute to compulsory arbitration; or
• may refer the dispute to compulsory arbitration if the dispute is a dispute of right.

What is the difference between a dispute of right and a dispute of interest?

 

Section 2 of the Labour Act defines dispute of right as any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made under this Act, or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment. A dispute of interest is one in which the claimant party seeks a benefit or advantage to which he has no legal entitlement; a dispute of right is one concerning the alleged infringement of a legal right, or the conferment of a benefit to which the claimant is legally entitled.[7]

How to register a code of conduct?

Section 101 of the Labour Act provides that an employment council or a works council may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of the industry, undertaking or workplace to which it relates. 

 

Where an employment council has registered a code governing employers and employees represented by it, no works council may apply for the registration of a code in respect of any industry, undertaking or workplace represented by the employment council unless it first refers the code to the employment council for its approval. 

 

Where a code is registered by a works council in respect of any industry, undertaking or workplace represented by an employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supersede that of the works council, unless the works council refers it to the employment council for approval. 

 

Where an employment council refuses to approve a code made by a works council, the works council may refer the matter to a labour officer, and the determination of the labour officer on the matter shall be final unless the parties agree to refer it to voluntary arbitration.

 

Conclusion

 

It is important that parties to an employment contract abide by the Act, Collective Bargaining Agreements and codes of conduct whenever resolving employment grievances. Failure by the employer to show that he dismissed the employee in terms of an employment code amounts to unfair dismissal.  

 

Are you in any dispute, disagreement or conflict with your employee or employer? At JPLP we pride ourselves in resolving Labour disputes. Contact us today!

---

1. Isoquant Invetsments (Private) Limited t/a Zimoco v Darikwa (CCZ 6-20, Constitutional Application No. CCZ 68/17) [2020]
2. Labour (National Employment Code of Conduct) Regulations, 2006
3. Statutory Instrument 15 of 2006
4. Section 5 Statutory Instrument 15 of 2006.
5. Section 6 Statutory Instrument 15 of 2006.
6. Section 8 Statutory Instrument 15 of 2006
7. John Grogan (1998) Workplace Law Edition: 3, illustrated: Publisher: Juta & Company, page 344.