All the single ladies

Dismissal for misconduct CCMA arbitration guidelines from 1 January 2012

The Commission for Concillation, Mediation and Arbitration (CCMA) is an independent dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). The Sowetan and Mail & Guardian [Download New CCMA arbitration guidelines for 2012] respectively reported in November 2011 about the September 2011 gazetted [Download CCMA_Guidelines_Misconduct_Arbitrations] introduction of new arbitration guidelines effective from 1 January 2012.

The purpose of the guidelines is to guide arbitrators on how to uniformly deal with arbitrations about misconduct. The guidelines are viewed as of big help to users in preparing for CCMA cases. Download CCMA_addresses_34577_rg9580_gon705

Employee entitled to full pay during suspension period

The South African Labour Relations Act, No 66 of 1995, secion 186(i) includes among unfair labour practices, unfair suspension. An "employee must be on full pay during the suspension period" states Ivan Israelstam. When may an employee be suspended without pay? Meserumule Consulting answers this question:

• Before this type of suspension can be enforced, the employee has to be found guilty of a serious transgression for which he may be dismissed.
• There should be enough mitigating circumstances that warrant offering the employee suspension without pay as a sanction, as an alternative to dismissing the employee.
• The employee should be informed that he has been found guilty of a serious transgression and that his dismissal would be appropriate, but that the company, due to the mitigating circumstances, would offer him suspension without pay as an alternative to dismissal.
• The period of suspension without pay should be specified and should not be unreasonably long. 
• Before this type of suspension can be enforced, the employee has to be found guilty of a serious transgression for which he may be dismissed.
• There should be enough mitigating circumstances that warrant offering the employee suspension without pay as a sanction, as an alternative to dismissing the employee.
• The employee should be informed that he has been found guilty of a serious transgression and that his dismissal would be appropriate, but that the company, due to the mitigating circumstances, would offer him suspension without pay as an alternative to dismissal.
• The period of suspension without pay should be specified and should not be unreasonably long.

I am strongly of opinion that many of South African politicians and leaders forgot what the purpose of the struggle has been and greedly feather their own pockets at the cost of the poor. However, I find newspaper headers like this one troublesome:

 
Download Roodepoort Record 1 July 2011 p2-Suspended An article similar in nature appeared in the City Press. I disagree with this author. The rights of employees must be maintained, it is the efficiency of line managers with regard to disciplinary procedures that needs questioning, as well as the investigative efficiency of labour relations officers that should be in question.

Unexpectedly received an erroneous CCMA arbitration award?

You thought you followed due process and amicably parted ways with a former domestic worker only to receive out of the blue a Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award notification to reinstate the domestic worker and pay to pay the worker a sum of money for the period the domestic worker has not been in your employment.

What do you do? In a post on my blog on sectional title matters I answer the question in detail. Important: don't wait, you only have 14 days to submit an application, unless a good reason exists for having being withheld - CCMA Rule 9(3)(b) in particular.

It is further important to note that the CCMA Award should not have been a surprise in that CCMA Rule 18(3) specify that the CCMA must refuse to accept a referral document without evidence of service. Furthermore you should have received notice of hearing and the Commissioner must make sure that you had been properly notified: CCMA Rules 6 & 30(2).

Revised: 21 September 2010

What to do if death do us part

Losing a loved one can be devastating—this post is intended to give basic guidance about what to do if someone dies.

Different circumstances:

Nature and place of death:		Deceased's body	Post mortem	Death Notice1.
In hospital	Natural causes	To arrange with funeral director for collection	No need	The doctor issues
	Unnatural	Must be transferred to a state mortuary	Compulsory autopsy	State mortuary issues
At home (or at a Home for the Elderly or Nursing)	Natural causes	Contact the doctor first—if seen deceased within 24 hours/reasonable time and is assured of cause of death & if doctor is willing to issue?
		May arrange collection with funeral director	No need, but2.	The doctor issues
		If the doctor is unwilling to sign the death notice:
		Funeral service arrange private autopsy	Ascertain the cause of death	Pathologist issues
		2. If the body is to be cremated, a second doctor must examine to confirm that there is no reason why the body cannot be cremated.
	Unnatural	SA Police Services must informed:
		SAPS will move to state mortuary	Compulsory autopsy	State mortuary issues
In a vehicle accident or by suicide or murder	Unnatural death	SA Police Services take custody	Compulsory autopsy	State mortuary issues

1. The Death Notice referred to here is the 'Notification of Death' (cause of death) form, also known in South Africa as a BI-1663 Medical Certificate, which is needed to obtain a death certificate. The Births and Deaths Registration Act of 1992 requires every death must be reported to the Department of Home Affairs. The death certificate is vital in order to administer a deceased estate— every instruction given and transaction done on behalf of the deceased, e.g. closing accounts, etc, will need to be accompanied by a original or certified copy of the death certificate. Several originally printed copies of the death certificate can be obtained from Home Affairs at a fee each, or several photo copies can be made of the death certificate and certified as true copies at any SA Police Services station.

In all the cases listed above the body of the deceased must be identified by a relative or friend— anyone who knew the deceased—before the death notice can be issued. The identifier must take both own and the deceased's identity books (or passports) to the mortuary when identifying. The mortuary/body number needs to be obtained from the mortuary staff.

What if the deceased had been an organ donor?

It should not delay funeral plans, as organs need to be removed as soon as possible after brain death to ensure a successful transplantation. Support systems are maintained until organs have been removed. The Organ Donor Foundation must be contacted as soon as possible: Toll Free on 0800 22 66 11

Funeral arrangements:

A funeral is customary, but not an obligation. Sometimes a public memorial service is held in addition to a personal funeral or in the event of a cremation. A cremation service is often less expensive than burial, primarily due to the cost of the burial site

The first step in organising a funeral is to choose an undertaker/funeral home that you feel comfortable with, one who is reliable and gives you confidence in their ability that would guide you with regard to all of the important decisions.

Most funeral parlours require payment upfront. If the deceased had a funeral policy, the policy is to be handed over to the funeral director for verification. Payment of funeral expenses can be claimed from the estate of the deceased.

The immediate financial needs of the dependants:

Advise the person/s with signing powers of the deceased bank account/s to withdraw sufficient cash prior to announcing the deceased's death and closure of the account—this is especially important in the event of a joint account, the remaining partner must open her/his own account and transfer sufficient funds.

Initiate the application processes for all life policies payable to beneficiaries, especially if it is people that were dependant on the deceased, because such finances are required to tide the individual/s over until the estate is wrapped up.

Do keep in mind that spouses or life partners can claim UIF benefits when a worker dies. Dependants must claim within 6 months of the worker’s death. Dependent children can claim only if there is no spouse or life partner; or if the spouse or life partner does not claim within 6 months of the worker’s death. Download Form UI2.5 - Application for dependant2019s benefits by surviving spouse or life partner

Report the individual's death and initiate the administration of the estate:

In my experience, this is the hardest and most challenging aspect of another's death. Winding up an estate comprise four stages, namely:

Stage 1—Establish who, preparation of all the relevant documentation and appointment of the Executor

• Deceased's Death Certificate
• Identity Document of deceased
• Marriage Certificate (if applicable) / Divorce Order
• Surviving spouse's Identity Document & Antenuptial Contract (if applicable)
• Names of deceased's parents
• Names and addresses of beneficiaries
• Name of predeceased spouse or divorced spouse - date and place of death and Master's reference number

 Assets

• Deed of Transfer / Mortgage Bond
• Registration papers for motor vehicle/s
• Firearm Licences
• Share & Investment Certificates
• Bank account details and the name of the branch
• Name of Brokers / Insurance policy documents Short term insurance policy document
• Employer's name
• Pension/Provident Fund
• Particulars of Business interests
• Inter Vivos Trusts / Loan Account / Letters of Authority
• Details of foreign assets
• Usufructuary or fiduciary interests

Liabilities

• Bond Account details
• Hire purchase agreements
• Funeral Expenses / Funeral Cover
• List of outstanding Accounts

General

• Pension details
• Medical Aid details / address
• SARS Income Tax/Vat reference number
• Name of Accountants
• Deeds / Security Box held with Banking Institution

Stage 2—Collection of assets and payments of debts

Stage 3—Liquidation and distribution account

Stage 4—Final distribution and closure

Procedures and information relevant to other countries:

United Kingdom

Australia—a handy booklet by Kristine A Rodgers

United States of America

Northern Ireland

Revised 25 May 2010

Decision-making incapacity

How will you protect yourself from abuse, neglect and exploitation when you cannot make decisions for yourself because of diminished capacity as a result of mental illness, intellectual disability, physical disability or an incapacity related to ageing in general?

A power of attorney is a document that authorises an appointed party to act on another person's behalf in business and legal matters. The person authorised to act (on your behalf) is commonly known as the agent or simply the attorney, while the authorising party (you) is commonly known as the principal or donor. Often a close friend, partner or member of the family is appointed as agent.

There are three kinds of powers of attorney:

• General power of attorney—authorises the agent in general.
• Limited power of attorney—limits the authority of the agent to specified matters/issues/circumstances.
• Health care power of attorney—applies specifically to appoint someone to make health care decisions for you (but should not be confused with a living will) when you are unable to do so.

It is important to keep in mind that a power of attorney terminates on the incapacity of the person who granted the power (the principal or donor).

Consideration is being given to the introduction into South African law of an enduring power of attorney and a conditional power of attorney. The first (enduring power of attorney) endures the subsequent incapacity of the person who granted it, while the second (conditional power of attorney) will come into effect only on incapacity.

At present, the South African law deals with decision-making incapacity by way of curatorship—a difficult, cumbersome and costly process involving medical and legal expertise presented in the high court.

My rights and my landlord’s rights when renting

[Why not landlady or landperson? Male dominated language is ingrained in so many aspects of life.]

You see an advert for a place to live that fit your needs exactly. You get there and the agent or owner turns you down because you are a single women. Assert yourself, the RENTAL HOUSING ACT 50 OF 1999 (South Africa) is explicit about advertising a dwelling (flat, house or apartment) for purposes of leasing it—you may not be unfairly discriminated against with regard to any one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth. The same applies to negotiating a lease with you as prospective tenant and during the term of a lease, as well as members of your household or your bona fide visitors.

In addition, during the lease period you, members of your household and your bona fide visitors, have the right to privacy. The owner or agent may only exercise his or her right of inspection in a reasonable manner after reasonable notice to the tenant. You further have the right not to have your person or your home searched; your property searched; your possessions seized or your communications infringed.

In turn, the owner (or agent) has the right to prompt and regular payment of a rental or any charges that may be payable in terms of a lease; and to recover (subject to conditions) unpaid rental or any other amount that is due and payable. The owner (or agent) may terminate the lease, but only on grounds that do not constitute an unfair practice and that are specified in the lease. Upon termination of the lease, the owner (or agent) has the right to receive the rental housing property in a good state of repair, save for fair wear and tear; and to claim compensation for damage if caused by the tenant.

The lease need not necessary be in writing, but if you request a written lease, the owner (or agent) must oblige. The owner (or agent) may ask for a deposit before you may move in, but such deposit may not exceed an amount equivalent to an amount specified in the agreement or otherwise agreed to. This deposit must be invested in an interest-bearing account with a financial institution and you may request proof thereof. Should no amounts be due and owing to the owner (or agent) at expiration of the lease then you are entitled to be refunded in full, plus the accrued interest in respect thereof, not later than 21 days after expiration of the lease.

You have the right to inspect the property jointly before moving in to ascertain the existence or not of any defects or damage therein. The same applies to expiration of the lease, at a mutually convenient time, within a period of three days prior to such expiration.

You are entitled to a written receipt for all payments made—such a receipt must be dated and clearly indicate the address detail of the rented property and if payment has been made for rental, arrears, deposit or otherwise, and specify the period for which payment is made.

So what do you do if any of your rights outlined above are violated?

The Housing Rental Tribunal (established in terms of the mentioned act) handles the following matters:

• non-refund of deposits
• problems that arise due to leases that are not in full compliance with the law
• non-payment of rent
• harassment and intimidation
• eviction without a court order and lock outs
• lack of maintenance to the dwelling
• overcrowding
• exploitative rent and service charges
• house rules
• the issuing of receipts for rent payments
• service cuts-offs without a court order.

Should you have a query regarding any of the following visit http://www.capegateway.gov.za/eng/pubs/public_info/F/116621

1. Must I Sign a Lease with my Landlord?
2. What Information must be on a Written Lease?
3. Must I Pay a Deposit?
4. What happens to my Deposit while I'm Living on the Property?
5. What Maintenance must the Landlord Do?
6. What can I do if the Landlord Refuses to Maintain things he said he would?
7. Can my Landlord Enter the Property Without my Permission?
8. Can my Landlord Increase my Rent when he Wants to?
9. By how much can my landlord increase my rent when I renew the lease?
10. What can I do if my landlord says I haven't paid the rent when I have?
11. Can my Landlord take my possessions if I fall behind on rent?
12. How can I end my lease early?
13. My lease expired a few months ago. How much notice must I give before I can move out?
14. Can my landlord lock me out?
15. Can my landlord refuse to return my deposit?
16. Which laws govern rental agreements?
17. Who can help me if I have problems with my landlord?
18. How do I go about lodging a complaint with the Rental Housing Tribunal?
19. How can I contact the Western Cape Rental Housing Tribunal?

Come and go as you please?

You want to be on your own, renting a dwelling or buy your first property. Before you buy a sectional title unit, make sure you understand what you buy. It is not just a matter of coming and going as you please. You will be an owner of a unit and an undivided share of common property. You will be a member of the body corporate. You will have duties and responsibilities. Most important, you will be paying levies, did you made sure the scheme is financially well, or is it perhaps burdened with arrears of other owners? The scheme has both a set of management rules and a set of conduct rules. You need to respect these rules either as tenant renting or as owner.