Why should employers protect themselves?

In 1995 the old Labour Relations Act promulgated in 1956 was scrapped by the new ANC government.

The old act was considered by the new government and the trade unions as failing to provide sufficient protection for employees. By 1995 South Africa’s new constitution had entrenched labour law rights very strongly. Also, the ANC and COSATU (the then largest trade union grouping) had formed an alliance. As a result of these developments the trade unions were easily able to force provisions into the new Labour Relations Act of 1995 (LRA) that suited the labour movement’s agenda.

As time has passed the trade unions have been able to add further and stronger protections into the LRA. In addition, CCMA awards and Labour Court judgements have, over time, become more and more employee friendly. Examples of these burgeoning legal protections for employees include:

• Employees are entitled to join and participate in legitimate trade union activity without fear of being fired for this;

• Employees are entitled to refuse to do the work of colleagues who are on strike;

• Employees are entitled to a disciplinary hearing even where they are accused of being on an unprotected (illegal) strike;

• Employees appear to have the right to motivate for permission to bring an external representative (e.g. a lawyer or trade union representative) to disciplinary hearings;

• Employers may not terminate the employment of employees for reasons related to a takeover of a business as a going concern. This is irrespective of whether the termination takes place before or after the takeover;

• Employers are obliged to renew fixed-term employment contracts if the employees concerned have a reasonable expectation of such renewal;

• Where the employer considers an employee to have absconded (left the employment without resigning) it cannot replace the employee without following a set of onerous procedures;

• Where an employee accuses an employer in court or at the CCMA of having dismissed him unfairly and the existence of the dismissal is established the employer is assumed guilty of unfair dismissal until it proves itself innocent;

• The CCMA is entitled to overturn the sanction of dismissal imposed by an employer even if the dismissal sanction could be seen by reasonable people to be fair; and

• Where an employer contemplates terminating the employment of an employee it is required to follow complex and stringent procedures before it can do so. Many employers find these procedural requirements so onerous that they either try to bypass them or are afraid to ever dismiss employees.

In the case of Ntoyake vs Open Arms Home for Children (2007, 10 BALR 946) the accused, the resident manager of the children’s home, was dismissed for appearing in front of the children in an intoxicated state. The CCMA agreed that Ntoyake was in fact guilty of this charge and that dismissal was an appropriate sanction. However, the arbitrator still found the dismissal to be unfair because the employee had not, at the disciplinary hearing, been given the chance to cross examine those who had raised the complaint. That is, the employer’s failure to facilitate the cross examination phase of the disciplinary procedure caused it to lose the case.

As a result of these statutory provisions and case law principles South African employees are amongst the best protected in the world today. It is clear that the intention of these laws is primarily to keep employees employed even if this results in difficulties for the employer. It seems that, based on recent patterns, as the new dispensation gets older the legal protection of employees is likely continue to strengthen, and the ability of employers to run their organisations effectively could be increasingly hampered.

Despite this gloomy outlook employers are strongly encouraged not to crack under the strain. Instead they are encouraged to develop the following simple strategy which can be very effective in protecting the damage to their businesses that can be done by employees who take unfair advantage of labour legislation. That is, employers should:

With the help of labour law specialists, acquire the expertise needed to ensure that errant, incapacitated or redundant employees are not approached until proper procedures are in place

Join an Employers Organisation (trade union for employers) to represent the employer in dealings with unions and at the CCMA and bargaining councils.

Ivan Israelstam is the Chief Executive of Labour Law Management Consulting, www.labourlawadvice.co.za. To view Labour Law Management Consulting’s Q & A page, please click here.

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