Labour Law

 

“The concept of Labour Law mediates the relationship between employees, employers, employing entities, trade unions and the government.” It deals with the rights of employees and stipulates the minimum and at times, maximum conditions which employers may impose upon their employees. South African Labour Law is founded on democratic principles entrenched in the Constitution of South Africa which enforce the building blocks of a democratic society based on equality and freedom.

The most fundamental principle of Labour Law is founded in Section 23 of the Constitution which states that “Everyone has the right to fair labour practice.” The essence of labour law is to coordinate and facilitate fair labour practice, fair working conditions, fair treatment and fair working relationships within the work place.  

Labour Practices

Disputes Within The Work Place

The most common disputes within the workplace are unfair discrimination, unfair working conditions, unfair labour procedure and late or short paying of wages and salaries.

Discrimination based on an inherent requirement of a job means that a requirement is so essential that it forms part of the position advertised thereby disqualifying a candidate because he or she does not possess that essential requirement; which without they are simply unable to perform the task at hand, does not constitute unfair discrimination. Unfair discrimination is the differentiation of a person based on race, gender, religion, age, culture, sexual orientation, marital status, political opinion, social origin, pregnancy, disability, status or language of an individual.

Unfair labour procedure relates largely to the aspect of dismissal. In terms of the Labour Relations Act, a dismissal means that an employer has terminated the contract of employment with his/her employee, with or without notice. It further deals with the probation, promotion, demotion and training of an employee. Whether or not any of the aforementioned procedures and practices are unfair depends on the circumstances and varies on a case-by-case basis. The most common reasons for dismissal are misconduct, poor work performance and ill-health.

The Following is a Brief Guideline of What Constitutes a Fair Dismissal:

 

Warnings

 A verbal warning is given to an employee, followed by a first and second written warning. Upon the third written warning, the employer may then institute a formal disciplinary hearing. It must be noted that there is no stipulation for how many written warnings should be received before a disciplinary hearing is instituted as same is regulated by the contract between employer and employee. A verbal warning may also be waived based on the offence committed by the employee.

Disciplinary Hearing

 

1) An employer must inform the employee of the allegations against him or her in a manner and language which they understand

2) The Employee must be given reasonable time to prepare a response and be allowed the opportunity to state his or her side of the dispute during the proceedings.

3) The Employee must be advised that he or she is allowed to be represented by an official person in their capacity of an employee’s organization or union or a fellow employee.

4) The Employer must provide clear and concise reasons for the dismissal of the employee.

5) The Employer must give the employee the outcome of the disciplinary hearing and keep records of the disciplinary action taken against the employee.

 

Notice Periods

 

In terms of Section 37 of the Act, Notice may be given as follows:

-1 week for an employee that has worked less than 6 months

-2 weeks for an employee that has worked for 6 months or more

-4 weeks for an employee that has worked for 1 year or more

 

 

During the period of initiating and holding a disciplinary hearing, an employee may or may not be suspended. Employers are liable to pay their suspended employee at the normal rate. However, it is often the case where delays during the disciplinary process are at the instance of the employee and not the employer. The employer would not be liable to pay for extended suspension periods at the fault of the employee. (SAEWA obo Members and Aberdare Cables [2007] 2 BALR 106 (MEIBC).

Retrenchment is the dismissal of an employee due to no fault of the employee. An employer must always provide fair reasons for retrenchment of staff. Should an employee believe that he or she has been unfairly retrenched, they may refer the matter to CCMA.

Dispute Resolution

There are numerous dispute resolution forums which are available to both employees and their employers to address conflict within the work place. Choosing the right forum depends on the reason for the dispute.

There are internal remedies within each company, the Commission for Conciliation, Mediation and Arbitration (CCMA), The Department of Labour, The Labour Court and The Labour Appeal Court.

CCMA

A matter can be referred to CCMA if it deals with unfair discrimination, unfair dismissal, unfair labour procedure and practice, wages and/or working conditions and changes within the work place.

An action that is referred to CCMA can be initiated by the individual involved, by a trade union or employees’ organization. There is no consent required from the other party involved in order to initiate an action at CCMA. An employer may be represented by an employee or the director of their company, an office bearer or a representative of an employers’ organization. A legal practitioner may represent either party when the Commissioner deems it necessary for a legal practitioner to be present and with the all parties consenting to same.

A matter is dealt with by way of conciliation. Should the parties fail to settle the matter during the conciliation, it may be referred to an Arbitration tribunal or the Labour Court. A matter will be referred to the labour court in serious disputes such as multiple retrenchment, strike dismissals or automatically unfair dismissals. If either party is dissatisfied with the decision of the Labour Court, it may refer the matter to the Labour Appeal Court.

It is Important to Note the Following Time Periods Within Which to Institute Your Action with CCMA:

Notice period for both parties before a hearing:

(note: When a matter is referred to conciliation and one party is not present on the date of hearing, the hearing will proceed on the scheduled date. If both parties cannot come to an agreement, the matter shall be referred to arbitration)

 14 days

An employer may object to the process by giving written notice to CCMA before the hearing within:

 

 7 days

In the case of an unfair dismissal dispute:

 

 30 days from the date of incident

In the case of unfair labour practice:

 

 90 days from the date of incident
The Department of Labour

The Department of Labour deals with the issues of job creation, unemployment, industrial relations and occupational health and safety as well as the issue of late salary payment or no salary payment disputes.

An employee who has not been paid their salary timeously or at all may approach the Department of Labour and lodge a complaint against their employer. An inspector will be allocated to their matter and an investigation will be conducted. Should the results be favourable to the employee, the employer will be instructed to comply with the terms of their agreement and remunerate their employee. Should the employer not comply with same, the employee may employ the services of a legal representative and institute a civil claim against their employer for the recovery of payment of their salary.