Employers must protect themselves

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Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |


South African statutory and case law provides heavy protections for employees.

For example, employees are entitled:

  • to refuse to do the work of colleagues who are on strike
  • to have their fixed-term employment contracts renewed if they have a reasonable expectation of such renewal
  • to require the employer to prove at CCMA that a dismissal was fair
  • to complex and stringent procedures before a dismissal can be implemented
  • to a minimum wage threshold.

In addition, 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.

Ntoyake vs Open Arms Home for Children (2007, 10 BALR 946)

In this case 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 decisions 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.

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