One has a good deal of sympathy with those who find the South African labour laws difficult to understand, and even more difficult to observe. Larger companies are able to employ specialists who have studied for diplomas or degrees, but small business operators, for the most part, have to battle through without the advantage of such training. Consequently, they often make mistakes that have serious financial results when their ignorance of the laws is exposed in the CCMA.

On the other hand, my experience tells me that it is precisely for these business people that a fair labour regimen is required. I’m not sure whether my own children have been singularly unlucky, but they have suffered under a succession of employers who have not shown the slightest compliance to fair labour practice. It is not difficult, even for an artisan boss who has neither the time nor the inclination to study the laws, to provide a written letter of appointment setting out what the conditions of employment are to be. This should included details of what leave is available, the hours of work and what duties are assigned to the position.

In the short term, it should not be held against the employee if it transpires that he or she does not have the capacity to perform the assigned duties. Such failing should have been identified before appointment, unless, of course, the applicant has misled the employer as to what he or she is able to do. It is fraudulent for an applicant to claim qualifications or experiential abilities that he or she does not possess. It is also important for the employer to understand that some jobs require specific knowledge – of procedures, for example – that the new employee may be expected to know only if adequate training is offered. My son was employed by a car hire firm. After a bare thirty minutes of training he was left to run the office over a weekend when there was no senior to help him with his queries. He floundered and his services were terminated. Like many employees, who fear reprisal and some sort of prejudice against them in the future, he declined to take this matter to the department of labour or the CCMA.

There are many instances where young employees are treated in similar fashion. Even if such a job-finder is au fait with the labour legislation and his or her rights in terms of it, it is not easy to challenge one’s employer. Thus, too many employers conduct their labour relations on the basis of whim without observance of correct, and fair, procedures.

Contrary to popular belief, it is possible to fire an employee and there are quite a number of perfectly legitimate grounds for doing so. The law strikes a better balance between the rights of employer and employee than many are inclined to think. Where unions become involved on the side of the employee, there often appears to be a bias in favour of the worker, but, generally, the letter of the law is better known to the union representative than the employer and it is this that might lead to a judgement against the latter. It doesn’t always make sense to everyone that correct procedure is an important aspect of law. We know how frequently people escape a guilty judgement in court because there have been procedural flaws. We call them ‘technicalities’, but they remind us that the building of a case, whether in a criminal or a labour context, requires absolute rectitude in the execution of procedure.

Andrew Layman: PCB CEO

This article appeared in the Public Eye on the 19 June 2008