Labour legislation in South Africa is heavily weighted in favour employees. The heavy protection of employees against being dismissed make it very difficult for employers to run efficient workplaces.

At first glance, fixed-term employment contracts may appear to offer a convenient solution for managing workforce needs and circumventing the complexities associated with permanent employment. However, a closer examination reveals that fixed-term employment contracts are far from the straightforward answer they seem to be.

In the South African context unfair discrimination could include, but is not limited to, discrimination on arbitrary or subjective grounds such as race, gender, family responsibility, religion, age, disability, opinion, and trade union affiliation.

Employee absenteeism is one of the biggest financial threats faced by employers. This is firstly because, where employees are absent, the work can either not get done or must be done by other employees who all have their own jobs to do.

The law only allows misconduct if the employee’s misconduct is so serious that it makes continued employment intolerable. One factor that could constitute such intolerability is the employee’s destruction of the trust relationship.

There are several unfair methods that might be used at disciplinary hearings, appeal hearings and arbitration hearings. These unsavoury tactics include the falsification of documents, the influencing of witnesses, illegal entrapment, coercing employees to make admissions or confessions and tampering with audio and video tapes. 

South African law does not allow employers to sue employees at the CCMA or Labour courts. In fact, it is clear that labour legislation and its enforcement structures are there to protect employees, often at the cost of employers.

Section 6 of the EEA coupled with case law findings prohibits unfair discrimination against employees on arbitrary grounds where such discrimination affects the employee’s dignity.

South Africa’s labour legislation changes periodically and case law decisions often have the effect of changing the law. As management at all levels make daily decisions affecting the myriad of employee rights, all managers need to be able to take the complex, increasing and constantly changing labour laws in to account when making their decisions.

The Rustenburg Platinum finding and the Shoprite Checkers finding that I discussed in previous articles show that arbitrators and judges are ready to overturn dismissals of employees who have committed serious offences.

A default award is one made by an arbitrator where the employer fails to attend the arbitration hearing. The arbitrator is entitled to do this unless he/she has received an acceptable reason for the employer’s non-attendance. In the employer’s absence the arbitrator has little or no way of checking as to whether the employee’s version is true.

The law does allow employers to dismiss employees for dishonesty. This is because dishonesty can destroy the ability of the employer to trust the employee. However, this does not mean that all decisions to dismiss dishonest employees will automatically be upheld by the CCMA and the courts.

The Labour Relations Act (LRA) makes it obligatory for employers that are contemplating retrenchments to first consult about this prospect before making any decision to retrench. Where the relevant employees belong to a trade union the employer is required to consult with that union on a number of issues, the most important of which is any means of avoiding job losses.

The purpose of a disciplinary hearing is to give the parties the opportunity to present all their evidence. The chairperson of the hearing is required to hear and understand all evidence presented so that he/she can properly take it into account on completion of its presentation.

Schedule 8 of the Labour Relations Act allows the dismissal of guilty employees only as the last resort. The Act, together with its Code of Good Practice: Dismissal, effectively places the duty on the employer to justify the imposition of dismissal by showing that the employee’s misconduct is so serious that it makes continued employment intolerable.

The practice of disciplining an employee twice for the very same infraction is called “double jeopardy”. In most cases, such practice would be found to be unfair because it both excessive and punitive instead of corrective. 
 

It is a major challenge for employers to distinguish between employees who are genuinely sick from those who are malingering. The Labour Relations Act (LRA) requires that employer’s may consider dismissing employees incapacitated by illness or injury only as a last resort. 

Important labour legislation applies to circumstances where a business or part thereof is transferred by one employer to another as a going concern. That is, section 197 of the Labour Relations Act (LRA) forces the new entity to take over all the employees of the old undertaking. 

The Cape Town taxi strike created severe harm to employers, employees and the taxi industry alike. The fact that people so frequently choose to use such destructive means of getting their way demonstrates just how discordant our societal and economic relationships are.

If an employer fails to attend an arbitration hearing, the CCMA has the power to issue a default award in favour of the employee.