I paused in the public loo at TheZone for a moment of reflection and couldn’t help but notice this really unusual design.
What really got my attention were the reflector panels … are they supposed to help guys stay on course in the event of a power failure or emergency situation or something?
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toilet, loo, reflector strips, rosebank, the zone
I was invited to the office warming party for Howes Incorporated, a labour firm started by Deanne Howes about 2 years ago. I first visited Deanne’s new offices a couple months ago and this evening she had a shindig for her clients and colleagues. It was a fun evening and the catering was handled by a company called By Word of Mouth which prepared some really tasty and interesting finger snacks.
I managed to get this funky photo of Deanne during her speech. It came out quite nicely. Anyway, congrats Dee on 2 years. May you have many many more good years to come.
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attorneys, deanne howes, howes inc, labour, law, law firm, lawyers, legal profession, legal services
Here is a thought. Instead of a blogging policy, why not make sure you have a really good external communications policy that covers blogging, email and any other form of communication with the world outside the four walls of your business?
While you’re at it, take a good look at your internal policies as well. There is quite a bit of potential for liability due to misguided or just plain bad internal communications too.
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blogging policy, external communications, policy, internal communications, company policies, policies and procedures
I heard about an accounting firm in Johannesburg that has published a new dress code for its employees that goes a little beyond requiring male employees to wear ties. This policy prohibits employees from wearing head coverings (this includes observant Jews and Muslims) on the basis that this practice apparently offends the firm’s clients. Women who have coloured their hair and who are starting to show their real hair colour as their hair grows out are required to have their hair re-coloured. Women who wear sandals are required to have their feet pedicured and no one may wear a fleecy jacket or windbreaker to the office which lacks reliable and effective heating.
I am going to see if I can get my hands on a copy of this policy so I can publish it in all its glory. When I heard about this I was completely taken aback at the audacity of the firm to attempt to impose such a restrictive, unreasonable and downright unconstitutional policy on its employees.
It seems to me that employers sometimes get a little too carried away in their own perceived importance and power and make more and more demands on their employees in the name of better competition and completely disregard that document we like to call the Bill of Rights!
While I find some of the requirements in the dress code absurd, the prohibition on head coverings is an outright violation of the Freedom of religion, belief and opinion. The right provides as follows:
Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
Prohibiting employees from wearing head coverings where their religious practice requires it is a blatant violation of this right. If I were an employee I would report this new policy to the Human Rights Commission, organise protest action and if action is taken by the company to quash protests, refer this matter to the CCMA. Employers generally focus on their bottom line and own ideas about how best to conduct their businesses. Sadly this often conflicts with their duty to respect their employees and cultivate a healthy working environment. Sometimes they go too far. This is one of those times.
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bill of rights, religion, belief, contravention, infringement of right, company policy, clothing policy
The Sunday Times reported on a recent Labour Appeal Court judgment involving fixed-term employment contracts. Fixed-term employment contracts operate for a fixed period of time, as their name suggests, and then terminate. This is a departure from the default position with an employment contract in that the usual employment contract can only be terminated by the employee resigning and by the employer on the recognised grounds of misconduct, incapacity and operational requirements. According to the Sunday Times:
IN TERMS of the law of contract and common law, when two parties enter into a fixed contract of employment, it is binding on both parties for the duration.
In other words, if an employer and employee enter into a fixed, five-year contract it is expected to run for five years except where one of the parties is in breach of the contract, which may lead to its cancellation.
But what happens when an employer enters into a fixed-term contract with an employee only to realise that he or she has to terminate it before it expires due to the operational requirements of the business?
This question faced the Labour Appeal Court (LAC) in the case of Buthelezi versus the Municipal Demarcation Board last year.
In this case the fixed-term contract of employment was five years, but it only ran for a year before the employee was retrenched.
After the matter had been heard by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court, it came before the LAC.
After a careful and thorough review of the common law principles of contract, the court ruled that the employer was not entitled to terminate the fixed-term contract prematurely on the basis of operational requirements.
What this means is that employers should give due consideration to the feasibility of a fixed-term contract in the context of their businesses and where it is appropriate to use a fixed-term contract, it should operate for a time period that is realistic. Fixed-term contracts do offer a useful alternative to conventional employment on one hand and appointing staff as independent contractors on the other. It is really a matter of using these contracts appropriately.
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Do you find yourself in an intolerable position at work? Is it so bad that you feel you have no choice but to resign? Chances are you may be looking at the basis for a constructive dismissal claim. To prove that you have been constructively dismissed you must establish that you, as the employee, terminated the employment contract; that the reason for terminating your employment contract was that the employer “rendered the prospect of continued employment ‘intolerable’” (Dismissal, Discrimination and Unfair Labour Practices by John Grogan) and that the employee had no reasonable alternative but to terminate the contract. Ultimately the employee must prove that there was a constructive dismissal.
The difficult part can be establishing that the prospect of continued employment was “intolerable”. The arbiter of the dispute will look at the circumstances at the time of termination of employment and will also consider the reasonableness of the allegation. The last requirement can also prove challenging. If the company has an internal grievance procedure, for example, then the arbiter may ask whether the employee invoked this procedure in an effort to address the cause for complaint. Has the employee exhausted every reasonable option available before arriving at the decision to terminate his/her employment?
Some of these difficulties as well as other difficulties were discussed in a Sunday Times article reproduced on Bregman Mitchley’s website:
Employees would be well advised to exercise caution before electing to resign in the face of seemingly “intolerable??? working conditions.
An employee’s point of view that he has been unfairly treated and made to endure intolerable working conditions is not in itself sufficient to shift the onus.
It is even more difficult when an employee could reasonably have lodged a grievance about the cause of the unhappiness and failed to do so.
A person adjudicating in such a case is required to look at the conduct of the employer as a whole, and to ask whether its conduct, judged reasonably and sensibly, was such that the employee could not be expected to put up with it.
But even if a disgruntled litigant establishes that a constructive dismissal took place, this does not automatically guarantee a successful claim. The courts have determined that a constructive dismissal is not inherently unfair.
Even though employers are then obliged to demonstrate that their conduct was fair, they are usually given considerable scope to show that their actions were justifiable.
Pursuing a constructive dismissal claim can be difficult and it is a good idea to take legal advice before handing in notice. While compensation can be awarded for a constructive dismissal, it is hardly a case of submitting the claim and waiting for the cheque. There may be better alternatives which shift the burden on to the employer to prove why certain conduct is not unfair or there may be other avenues available which can be far more effective than a constructive dismissal claim.
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I have seen debates about the enforceability of restraints of trade provisions a number of times in business fora. More often than not the people giving advise (generally not lawyers) believe that an employer is not permitted to prevent an employee from earning a living, particularly in the area he/she works in. Another factor which I have seen come up is the “right to earn a living”. The bottom line is usually that employers have their hands tied and can’t do much to prevent unscrupulous employees from setting up shop in competition across the road.
In a nutshell, restraint of trade provisions are enforceable against employees. The courts look at two competing considerations; freedom of contract and the “right to earn a living” and use reasonableness to strike the balance between the two. If restraint of trade provisions are not reasonable (for example, they cover a geographical area that is too wide given the employee’s activities on behalf of the employer, the duration of the restraint is too long or the scope of the restraint is too wide) then the court will not enforce the provisions. There must also be a valid interest worthy of protection (known as a “protectable interest”). Examples of a protectable interest include goodwill and client relationships. Employers are not permitted to stifle competition just for the sake of blocking competition.
Restraint of trade provisions can be vital for the protection of your business. Imagine you spend years building up relationships with your clients and establishing your business and brand in the marketplace and one of your key employees sets up a competing business on the back of your business and, virtually overnight, solicits your clients across to his/her competing business. The impact could be devastating. To help protect against this employers are well-served incorporating properly drafted restraint of trade provisions into their employment contracts. This gives employers the option of enforcing those restraint of trade provisions should employees leave and set up competing businesses. The big deterrent to enforcing restraint of trade provisions, aside from the uncertainties that are a part of legal proceedings (the so-called “vagaries of litigation”) is the bill at the end of the day. Typically restraint of trade provisions are enforced by applying for a court order forcing the employee to refrain from his/her wrongful conduct and to comply with the provisions of the restraint for so long as it is in force. This can be costly (depending on what is involved, the costs could reach R100 000, or even higher). In the context of these costs it is important to bear in mind what the potential downside is. If this employee could cost you hundreds of thousands of rands then it is worth litigating. Another important consideration is whether other employees will be encouraged by your failure to enforce restraint of trade provisions against an errant employee and take a similar path and set up their competing businesses. The end result of this could be even more devastating.
There are different approaches to the enforcement of restraint of trade provisions. Some companies will enforce a restraint, regardless of the possible threat by the employee because it is more important to deter similar conduct by other employees (I have seen this tactic work so well that the initial flurry of instructions to enforce restraints dried up in short order once the message was received by the client’s employees). Sometimes a well worded letter of demand will do the trick and show the ex-employee that you mean business. I always advise my clients to be prepared to follow through if they send a letter of demand, though. If you send a letter of demand, your ex-employee calls your bluff and you do nothing then future threats will be regarded as being empty and you may have irreparably damaged your credibility.
As I mentioned above, the bottom line is that restraint of trade provisions are enforceable in principle. They must be properly drawn up and you should prepare yourself to get serious about them if you are threatened with the end of your business by an unscrupulous employee. It pays to think ahead.
Technorati Tags: unlawful competition, restraint of trade
