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Law changes to help tighten grip on employers
By Ivan Israelstam
THE LABOUR
Department is expected to introduce legislation in 2010 with far-reaching
significance for employers.
These major amendments are expected to increase the already powerful
stranglehold that legislation has on productive business management and
employment creation.
The Labour Relations Act (LRA), effective from 1996, together with the numerous
statutory amendments and innovations that followed in the years since then, have
drastically increased the legal obligations of employers, have increased the
rights of employees and have severely hampered business flexibility.
These changes, made over the past 13 years, included the following:
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It is now very much
easier for unions to achieve recognition by employers.
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Employees, even if not
unionised, are entitled in certain circumstances to go on a legal strike in
protest against retrenchments.
They are
also entitled, according to the law, to insist that a facilitator from the
Commission for Conciliation, Mediation and Arbitration participate in
retrenchment processes.
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The delay period between
the date that retrenchment becomes necessary and is announced, and the date
when the employer is allowed to implement retrenchment in practice, has been
extended in certain circumstances.
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It is an automatically
unfair dismissal for an employer to terminate the employment of any employee
for any reason related to the transfer of a business (or any part/service of
a business) as a going concern.
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Where the employee has a
reasonable expectation of renewal of a fixed-term contract, the employer's
failure to renew it can be seen as an unfair dismissal.
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Where the employee
alleges unfair dismissal, the employer has the legal onus of proving that
the dismissal was fair.
That is,
once the employee has proved that the dismissal occurred, the employer is
considered guilty of unfair dismissal until it proves itself innocent.
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Even where the employer
is not aware as to what specifically the employee is alleging was unfair
about the dismissal, the employer is required to present its case first at
arbitration.
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It is the company and
not the actual perpetrator of sexual harassment who gets sued in the Labour
Court.
In addition
to these and other draconian legislation implemented by statute in recent years,
labour law has and is still in the process of being changed via case law.
That is, the courts and arbitrators are constantly making decisions that have
the effect of moving the goalposts and this is more often than not to the
detriment of the employer.
That is, these decisions too frequently conflict with each other, so causing
major confusion among employers who have become all the more unsure as to what
they are and are not allowed to do.
In addition, case law too often produces decisions that further erode the
already minimal rights held by employers.
Such case law includes:
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Findings that employees
are not always restricted to being represented at disciplinary hearings by
fellow employees and can be entitled to bring external representatives such
as trade union officials and lawyers into internal disciplinary hearings.
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The Constitutional Court
has given the CCMA licence to reinstate employees with long service who have
committed gross misconduct.
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Some judges/arbitrators
believe that employees are entitled to a hearing before being placed on a
precautionary suspension pending any disciplinary hearing.
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A person attains the
legal status of an employee even before the scheduled start date of his/her
employment, where the conclusion of the employment agreement pre-dates the
appointment date.
As if these
are not enough to scare potential employers off from starting up businesses or
expanding their workforces, the Department of Labour has advanced plans to
further tighten the legislation allowing the use of labour brokers, fixed-term
contracts and the use of external contractors.
Employers also need to be aware of the arrival of a new and highly significant
code of practice for commissioners who preside over misconduct hearings.
This series of articles will deal with many of these changes and dangers, with
the hope that employers who are forewarned will be forearmed.
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Ivan Israelstam is chief executive of Labour Law Management Consulting. He
can be contacted on 011 888 7944 or
labourlaw@absamail.co.za
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Our appreciation to Ivan
and The Star newspaper for permission to publish this article.
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