Welcome to Labour Crew
Your trusted resource for Labour Law / IR and HR related matters.
We offer online as well as personalised on site services.
Online services do not attract any traveling fees and are budget friendly.
Labour Law
Labour Law in South Africa, is one of the most complex and time consuming issues an Employer can be exposed to. It is fraught with danger, and very often, the penalties for getting a procedural step wrong during procedures such as disciplinary hearings, can be extremely costly. Not only can a substantial monetary award be made against the Employer, but the Employee could also be retrospectively reinstated. Over and above this, it could lead to Industrial action by Unions which can have a dramatic effect on the productivity of a Company.
Labour Law in South Africa rests on 2 legs. These are substantive fairness and procedural fairness.
An Employer MUST comply with both substantive and procedural aspects when dealing with Employees being disciplined.
Substantive fairness
In short, substantive fairness boils down to the punishment having to be fitting to the applicable crime. Employees transgressing a minor infringement in terms of the Employers code of conduct, cannot be summarily dismissed as a result. The action resulting in a dismissal must be serious enough, to impose what is considered the ultimate sanction. Bear in mind that sanctions such as dismissal being imposed may look great for the manager performing the deed on the day, but the true test comes when the matter is referred to a relevant authority such as a Bargaining council or the CCMA. Commissioners at these institutions frown on the practice of dismissing Employees, for reasons that are not substantive in law, and can impose very heavy sanctions on Employers that make themselves guilty of this practice. Remember that the Employee only needs to prove that a dismissal has taken place, but there is a considerable burden of proof on the Employer to provide a burden of proof.
Procedural fairness
In the majority of serious disciplinary enquiries, the most common errors being made, resulting in Employers losing cases, fall in the procedural fairness category.
In South African Labour law, various rights are afforded to an Employee. Should any of these rights be infringed upon, a dismissal will be deemed unfair, and the case will be lost if referred to the regulating authority by the Employee.
Labour Law Consultants
This is where a Labour Law consultant become a valuable tool to the Employer, as they will ensure that all substantive and procedural aspects have been adhered to, and in so doing, significantly decrease the potential financial risk to the Employer. They can provide services such as acting as chairperson for Disciplinary Enquiries, and provide guidance to the Employer to avoid the several pitfalls of Employment.
Conciliation and Arbitration processes.
Once an Employee refers a case to the relevant authority, the authority will notify the Employer by email that a referral has been made, and will summon both parties to attend what is commonly referred to as a Con/Arb process. The Commissioner acts as an impartial body during Conciliation, and attempts for the parties to resolve the dispute by means of a settlement. During Conciliation the process is treated as without prejudice, and no documentary evidence is submitted. This process can result in reinstatement, a monetary settlement, or the issuing of a certificate for the dispute to proceed to arbitration.
Once the process moves to Arbitration, the parties submit their document bundles, which need to be properly indexed, and presented to each of the parties present. During Arbitration, the decision making process reverts to the Commissioner, who will listen to the evidence and provide a ruling. Their rulings are binding. This ruling is not to be ignored, as it is enforceable by the Sheriff of the court if required. The only way to appeal the ruling, is to refer the matter to the Labour court, which is in itself a very expensive exercise.
An Employer who simply ignores the instruction to appear at the CCMA or Bargaining Council, make things dramatically worse for themselves. The commissioner will then base his ruling on the uncontested evidence of the party that is present, which can be very problematic in terms of an outcome, as it is much more difficult to contest after the Arbitration has taken place, and as mentioned may incur significant costs to have the matter reviewed in the Labour Court.
Contracts of Employment
Contracts of Employment are not just a formality. They are important documents, not only for the Employee, but also for the Employer. They stipulate if the Employment contract is a permanent or fixed term contract, which may be dispute at a later stage. It can also set more favourable conditions for the Employer in terms of the Employment relationship without breaching the Basic Conditions of Employment Act. An example of this is defining the procedure to follow when reporting sick, agreements regarding working conditions, cellphone use, private internet use, restraints of trade as well as items such as the Employers disciplinary code of conduct. These become very important when the relationship possibly deteriorates between the parties. The employer needs to prove rules exists, of which the Employee is aware. It can, as a result of the inclusion of the Employers code of conduct, easily be corroborated that rules being breached firstly exist, and secondly that the Employee is aware of such rules.