One of the most important relationships one may find oneself in is the employer-employee relationship. Due to the nature of the relationship, it is essential to ensure that the relationship is regulated by a thorough employment contract which provides for the rights of an employee and the employee’s duties. A written employment contract is not a pre-requisite in law but should be recommended. If a written contract is not concluded, the employment relationship is governed by statutory provisions and, more specifically, by the Basic Conditions of Employment Act, Act no 75 of 1997 and the Labour Relations Act, Act no 66 of 1995.
The Basic Conditions of Employment Act:
The Basic Conditions of Employment Act regulates the specific relationship between employers and employees, such as working hours, leave, sick leave, overtime etc. As already stated, if a written employment contract is not concluded, the employer-employee relationship is regulated by this act. Some of the provisions of this act may be changed by agreement between the parties on certain terms and conditions, and some may not be altered.
The Labour Relations Act
The Labour Relations Act primarily regulates relationships between employers, employees, trade unions and employer organisations. A written employment contract cannot change or exclude
provisions of the act aimed at protecting employees. More specifically, employees are covered in the Labour Relations Act against unfair labour practices committed in the workplace and inequitable dismissals, regulating proper procedures for employees in categories such as misconduct, incapacity and retrenchments. The Labour Relations Act also established the CCMA and Bargaining Councils to assist with labour-related disputes.
The Other Acts Regulating Employment Relationships
Other acts regulate other related issues of employment, such as the Employment Equity Act, Act no 55 of 1998, Occupational Health and Safety Act, Act no 85 of 1993 and the Compensation for Occupational Injuries and Diseases Act, Act no 130 of 1993 and the Skills Development Act, Act no 97 of 1998.
The Employment Equity Act promotes employment equity in the workplace and aims to advance employment equity, equal opportunities and equality in the workplace.
The Occupational Health and Safety Act aims to ensure the safety of employees in the industrial environment where employees are exposed to industrial plants and machinery.
The Compensation for Occupational Injuries and Diseases Act is statutory insurance for employees under circumstances where an occupational injury or disease is contracted in the workplace. Employers are obliged to, under certain circumstances, deduct from an employee’s remuneration and pay over to the Compensation Commissioner monthly contributions. If an employee is diagnosed with an occupational injury or disease, the act makes provision for statutory compensation to be paid by the Compensation Commissioner under appropriate circumstances.
General
Unfair labour practices (ULP) or unfair dismissals
Unfair Labour Practices and Unfair Dismissals occur daily in the South African workspace. Whether a dismissal follows an incident of misconduct, the employee becomes incapacitated, or the employer wishes to dismiss based on its own operational requirements (generally referred to as “retrenchment”), the Labour Relations Act concisely sets out the procedures to be followed.
When an employee is dismissed, the question often arises whether the dismissal was procedurally and substantively fair. If an employee is aggrieved about unfair dismissal, they may refer a dispute to the CCMA or a Bargaining Council (see hereunder), which institution may resolve the dispute.
Substantive fairness relates to whether there were substantive reasons for dismissal. Procedural unfairness relates to the question of whether a fair procedure in accordance with the Labour Relations Act and other rules has been followed by the employer. When a dismissal is found to be procedurally and substantively unfair, it renders the dismissal unfair, and the employee may seek compensation or even reinstatement under the appropriate circumstances.
Some disputes are reserved solely for the jurisdiction of the Labour Court, such as automatic unfair dismissals. Automatic unfair dismissals are deemed to be, amongst others, dismissals where an element of discrimination is present. The Labour Relations Act sets out which disputes should be referred to the Labour Court and which to the CCMA or a Bargaining Council.
The CCMA/Bargaining Council
As already mentioned, the CCMA or a specific Bargaining Council may have jurisdiction to determine a labour dispute. The CCMA determines labour disputes not reserved for certain Bargaining Councils. Certain Bargaining Councils perform the same duties as the CCMA regarding unfair labour practices or dismissals. Specific industries may have a Bargaining Council established to determine such disputes, such as the motor-, metal and engineering-, nursing- and even the hairdresser industries.
An employee must refer a dispute to the CCMA or the relevant Bargaining Council within 30 calendar days after the dispute arose. Should the dispute be guided by an employee beyond the 30 calendar days period, condonation for the late referral must be sought from the dismissed employee from the CCMA. Depending on the reasons for lateness, condonation may be granted.
Once the dispute has been referred to the CCMA, the CCMA must set the dispute down for conciliation before a Commissioner. The purpose of the conciliation process is to attempt to resolve the dispute through conciliation – which constitutes an informal process. In the absence of the dispute being resolved at the conciliation level, a certificate of non-outcome is issued, and an employee may then proceed to refer the dispute to the next level of dispute resolution, namely arbitration. Arbitration is a more formal process and involves recording the proceedings, evidence under oath etc. and the issue of an award which may be final and binding on the parties.
Depending on the nature of the dispute, more particularly a dismissal or incapacity dispute, legal representation is not automatically permitted, and an application for legal representation must be made by the party seeking to be legally represented. Legal representation may be granted under circumstances where the matter appears factually and legally complex and where the employee cannot represent themselves properly in such proceedings.
At the conclusion of the arbitration and upon the Commissioner making their award, one of the parties is often dissatisfied with the outcome of the award. Under such circumstances, the dissatisfied party has the right to issue a review application to the Labour Court seeking a review of the award by the Commissioner. A review application to the Labour Court is not “simply for the taking” as the Labour Court will not interfere with a well-reasoned award made by the Commissioner. The Court will only interfere if the Court is of the view that the award is irrational, taking the facts into account.
An award is not a Court order, but if an employer refuses to comply with an award, the employee may have the award certified. In this event, it becomes a Court order for execution against the employer.
Remedies
As already stated, the CCMA or Bargaining Council has the powers to either reinstate, re-employ and award compensation under appropriate circumstances. Reinstatement is the most effective remedy and will only be granted under exceptional circumstances, where an employee’s dismissal was grossly procedurally and substantively unfair. “Reinstatement” means that an employee is reinstated in their position before their dismissal as of the date of dismissal. Re-employment may be awarded under circumstances where a Commissioner is of the view that the dismissal was unfair to such an extent that re-employment in the same position from a date stated (usually the first day of the month following the month of the award) is made. The dismissal may be found to be grossly unfair, but not to the extent that reinstatement is appropriate.
An award for compensation is normally made where reinstatement/re-employment is not practicable or under circumstances where the dismissal may be found to be unfair but not so unfair to justify a reinstatement or re-employment. Compensation may also be awarded where the employee may have, in the meantime, secured alternative employment.
Unfair Labour Practices (as the term indicates) relate to unfair conduct of the employer towards the employee in the workplace – short of dismissal. The Labour Relations Act also defines certain categories of unfair labour practices. Before the enactment of the new Labour Relations Act, the concept of an unfair labour practice was almost “open-ended”, but the new definition in the Labour Relations Act of an unfair Labour Practice is more confined. The CCMA/Bargaining Councils/the Labour Court, however, prefers to interpret an unfair labour practice-wide and not narrowly.
Labour disputes may appear at face value to be simple. Most persons, even quasi-legally skilled persons or even some lawyers, dare to view labour disputes as simple. They are often met with complex issues that cannot be appropriately managed without the necessary labour skills. It is to be recommended that an employee seeks proper advice from an appropriate legally-skilled person, such as an attorney who is qualified with a specific qualification in the labour field and practices in such area, before commencing with a dispute. At the end of the day, the old saying is “prevention is better than cure”.