Labour laws form part of the regulatory framework that all businesses have to comply with. Some still perceive labour laws to be restrictive.
Interestingly, a close look at the SAICA 2015 SME survey is hugely instructive. In a break with tradition SMEs did not site labour laws as being particularly burdensome.
Though this might raise some eyebrows, I don’t consider it surprising that SMEs have bigger proverbial fish to fry when it comes to staying in business and ensuring healthy growth.
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South African labour laws are not as restrictive as they are often perceived to be. While I sympathise with employers, and understand why some laws may seem restrictive, it’s the case that these laws protect the most vulnerable individuals in our society.
Moreover, the effects of these laws are felt more keenly by SMEs. Larger employers are in a position to employ human resource practitioners whose sole focus is to understand the labour laws and to advise the employer on implementing such laws.
The same cannot be said for SMEs where the business is run by a small handful of individuals whose role is to focus on the success of the business while at the same time ensuring compliance with applicable laws.
Given that labour laws apply equally to larger and smaller organisations, SMEs feel the brunt of these laws more because of their size.
To mitigate any perceived restrictions that may be imposed, employers are advised to seek advice on employment issues as soon as they arise.
Employers often ignore problems in the workplace, for example poor work performance, or try to deal with these issues informally for too long.
By the time the employer seeks advice, the employment issues may have escalated to a point where the employer is no longer willing, or able, to tolerate the situation.
At the time of seeking advice the employer may be told that he/she has not done enough to justify a dismissal with immediate effect.
The employer is then left with no option but to follow the prescribed procedure (which will delay any termination of employment) or immediately dismiss the employee and run the risk of an unfair dismissal claim.
Therefore, my first recommendation is to seek advice timeously from a range of experts, including attorneys with experience in employment law matters as well as employer organisations.
In the event of a dispute
In terms of our law, disputes can arise during the employment relationship and following the termination of employment.
These disputes can be referred to one of the tribunals and/or the courts established by our employment legislation (such as the CCMA, the Labour Court and Labour Appeal Court) by either the individual employee or by a trade union on behalf of employees who are members of the union.
The steps SMEs should take in the event of a dispute would be dependent on the nature of the dispute and the forum to which the dispute has been referred.
In almost every dispute, the first step would be for the employee to lodge a dispute with the CCMA or bargaining council with jurisdiction over the employer. The employer must receive a copy of the referral documentation completed by the employee.
Once the employer is made aware of the dispute the next step in the process would be for the CCMA/bargaining council to convene a meeting of the parties.
This meeting will take the form of either conciliation or a conciliation/arbitration. The employer must ensure that it attends this meeting failing which, the CCMA/bargaining council could proceed with the meeting in its absence.
The purpose of the conciliation is to establish whether the employer and the aggrieved employee can resolve the dispute amicably and by agreement.
If the dispute cannot be resolved by agreement the CCMA will either issue a certificate of non-resolution (in the case where the parties are only conciliating the dispute) or will proceed to arbitrate the dispute (in the case where the meeting convened is a conciliation/arbitration and where no objections has been lodged).
The high cost of inexpert advice
All employment disputes are ultimately determined either through arbitration (at the CCMA/bargaining council level) or by the Labour Court. Whether a dispute is determined by arbitration or by the Labour Court will be determined with reference to the legislation.
In the case of employees alleging that they have been unfairly dismissed, the CCMA/bargaining council and the Labour Court ultimately have the authority to reinstate an employee found to have been unfairly dismissed, alternatively to award that employee compensation up to a maximum of either twelve months or twenty-four months remuneration, depending on the circumstances giving rise to the dismissal.
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Given the financially onerous consequences which may arise for an SME in circumstances where an employee has been dismissed, SMEs are advised to take advice from an expert on employment law if they lack the necessary experience to deal with employment related issues.
Here are some links to help business owners gain a better understanding of the laws, and the nature of labour disputes:
- The National Employers’ Association of South Africa’s (NEASA) website contains a list of resources aimed at assisting employers. For more information, or to become a member visit www.neasa.co.za.
- To see what the law says in terms of labour policies and procedures, visit: www.ccma.org.za/.
In a nutshell, my advice would be for employers to familiarise themselves with our laws as much as possible.
They also need to act promptly, make sure that they get the correct paperwork in the event of a dispute and be active during the conciliation process in order to find a mutually amicable solution that will allow the SMEs to focus their attention on the success of their business rather than on long protracted and costly employment disputes.