Eviction Law

How To Lawfully Evict An Unlawful Tenant

In the South African Law, eviction of a residential Tenant is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (the PIE Act), subject to the Constitution. 

Before considering disciplining a staff member due to poor work performance, the first question the employer should ask themselves is if the employee had a proper understanding of what is expected of him/her. Depending on the seniority of the employee, this understanding might not always be implied and should therefore be thoroughly communicated and discussed. Regards may also be given to the contract of employment and the company’s disciplinary code which should contain a disciplinary policy outlining fair, firm and clear rules and standards. These documents are essential to the proper working structure when it comes to all disciplinary action. The disciplinary policy should always be given to all employees or publicly displayed in a general workspace.

The employer or HR manager should have a general understanding of the applicable labour law regulations when it comes to disciplining to avoid ending up at the CCMA or Court. The South African labour law prides itself on the principle of fairness. All disciplinary action should therefore be procedural and substantially fair. The objective of any disciplinary action in the workplace should be to correct rather than to punish. For this reason, it has become common practice that an employer should always offer its employees guidance, assistance and training throughout their employment. The requirement for proper training before any disciplinary action may be taken, has been highlighted in our Courts.    

Guidance training and assistance should be at the forefront of any employer – employee relationship and it is especially important since, it should be your first check when asking yourself, can I take disciplinary action? If the employer has offered the employee assistance, the employer should monitor the employee’s performance thereafter and throughout. Counselling should be given by the employer if the employee fails to meet set standards or targets despite training being offered. During the counselling, the employee should be made aware of the issues, and practical solutions should be discussed. During these sessions it is always a good idea to again discuss expectations and the employee should be encouraged to recommend solutions on how to meet expectations. Again, the employer should monitor whether these solutions are being applied and whether they are working.  

The reasons for the employee’s poor work performance should always be investigated as it may be due to a medical condition or poor workplace conditions, which would then require specific corrective measures like medical treatment for example.

The employer should keep proper record of the employee’s training as well as any counselling steps. The employer’s life should be regularly updated with detailed reports. These records may later be used to prove the fairness of any disciplinary action. The extent of training necessary before discipline may be instituted depends inter-alia on the nature of the work, the qualifications of the employee and the seniority of the employee. A senior manager with the necessary qualifications should not require as extensive training as a junior employer who had just been promoted to a manager.

When training and counselling fails to reach its goal; which should always be to correct the issue and assist the employee to reach performance targets and standards/ the employer’s next step would be determined by the specific circumstances of each case. The employer’s next step may, for example, include issuing of warnings, demoting or transferring the employee or other specific corrective measures. However, the employer must be sure that the employee has genuinely and purposefully failed to meet standards due to wilful disregard.

Depending on the circumstances and the policy, warnings may be verbal or written. Warnings should always be clear, and the employee should be made aware of the consequences of a further repeat of the misconduct. The employee should always be given an opportunity to respond to the allegations and the explanation should be recorded. The explanations given by the employee will also be useful to the employer when considering corrective measures. Warnings accumulated on a progressive basis, could culminate in a disciplinary hearing and possible dismissal. Only warnings for a similar type of infringement can be accumulated in a particular line of progression. Depending on your disciplinary code, a warning does not last indefinitely. It is therefore very important that the employee must act consistently in any disciplinary measure.

Should the employer deem a transfer or demotion more appropriate in specific circumstances, or, should the disciplinary policy prescribe a transfer or a demotion, the employer should satisfy itself that:

  • The employee’s environment is unsuitable to optimal performance and there is a direct link between the work environment and the poor work performance; OR,
  • When the employee delivered satisfying results at a previous position or at another workplace OR,
  • The employee is willing to accept the change.

 

Roua Pienaar

Candidate Attorney