It’s disconcerting how many business owners neglect to spend time thinking about their vision, how they plan to achieve it and the risks they are likely to face along the way. Worse still, many also fail to invest time in thinking about the people who will take them to their ultimate destination.
The fact is that cosmetic appointments can result in catastrophic consequences, especially when a business fills key positions without any clear purpose or intention. This has often been the case in some B-BBEE appointments, commonly known as fronting or window dressing; or when an employer hires an employee as an independent contractor simply to dodge the relevant employment laws.
These practices may be extreme, but their impact can be highly damaging. That’s because one of the core principles of South African law is that the intention of the parties involved dictates the legal ramifications. Without getting too technical about this, our courts apply a number of tests to measure true intentions. It’s unlikely that the fronting approach to team selection would pass any of these tests.
Another mistake that employers make when it comes to selecting the right people boils down to reaction rather than prevention. In other words, a business will only fill a position when its need is so urgent that there is no time to give proper consideration to the appointment.
Desperate moves like this can be as damaging as our other two approaches mentioned above. What’s more, reactive decisions can also apply to selecting shareholders and other stakeholders, not just team members.
Long-term, poorly considered appointments can even result in litigation and business failure. With prevention in mind, this article focuses on some of the questions to weigh up when selecting a winning team.
Independent contractor or joint venture?
It’s not unusual for two parties that are independent from each other to join forces on a specific project. When this happens, the parties can opt to enter a joint venture agreement that clearly sets out their respective obligations. In many cases, however, a joint venture agreement constitutes a partnership which, in turn, raises the inherent risk of unlimited liability.
The alternative would be a contract/subcontractor arrangement. Here, the party that is awarded the main contract would appoint the other party as a subcontractor. In many cases, this option would address the risk of unlimited liability.
Another case where the independent contractor agreement may be the most feasible option is when suppliers are engaged. Such an agreement could be defined as a supplier agreement, a service level agreement or an independent contractor agreement. This option applies when an organisation has a specific project or specific requirement and needs periodic assistance from a suitable service provider to deliver.
It’s crucial to understand the risks associated with all these options, weigh the risks against the potential gains and purpose of the engagement – then formulate the most appropriate contractual arrangement.
Employment contracts: fixed-term or indefinite?
With the recent amendments to our labour legislation, it is even more important than ever to give proper consideration to engaging employees. That said, South African employment practices have never been defined by a golden thread of proper consideration. Unfortunately, the new amendments will not address this weakness.
One might think that employers would be motivated to select the right people for the right positions by the threat of a possible penalty from the Commission for Conciliation, Mediation and Arbitration (CCMA) totalling up to 12 months’ salary. Not so, in many cases.
Often, businesses going through growth spurts only focus on reacting to their current needs rather than planning and implementing their recruitment activities strategically. This often results in appointing the wrong person, who is simply incapable of doing the job.
Square pegs in round holes are not the only cause of disputes at work, but they are certainly a significant contributor.
So, it’s imperative that employers consider their human resource needs carefully and scrutinise the applications they receive with equal rigour. Beside the risk of incurring a CCMA penalty, failure to exercise care and attention could result in retrenchments that expose you to a whole new set of regulations and challenges. Put bluntly: getting rid of a few employees will no longer be the quick financial fix that it used to be.
In future, employers will be compelled to consider the exact causes of any financial problems they are facing. They will only be permitted to retrench people if they can show that their financial problems are directly linked to employing those people in the first place.
As far as the fixed-term versus indefinite contract argument is concerned: rather than invoking provisions related to an employee’s probation period, when their performance is closely monitored after first starting work with a new employer, there is a trend towards appointing people as independent contractors or as fixed-term employees. In many cases, employers do this solely to circumvent the process and procedure laid down for dismissal in our employment laws.
For this reason, the CCMA now follows guidelines to determine the true intention of the contracting parties. If the authorities find that an employer is evading an employment law provision by circumventing it, it may be deemed that they engaged an employee on a permanent contract of employment with an indefinite term.
This is yet another compelling reason to have a clear understanding of purpose and strategy when appointing a new employee. It is equally important to put the relevant human resources paperwork in place.
This should cover policies relating to the use of facilities such as email, internet and phone; remuneration and leave; sexual harassment; grievance procedures; and disciplinary procedures. In addition, job descriptions must be properly defined and employment contracts should be drawn up in line with the latest provisions.
These documents are fundamentally important when it comes to setting boundaries and guidelines for how your employees should behave in the workplace. And the way your employees behave is vital to achieving your long-term strategic vision.
What about shareholders and other stakeholders?
Electing the right stakeholders and shareholders is just as vital to minimising business risks as appointing the right team members. Here, it is important to observe the Companies Act 71 of 2008, among other laws, as well as the current B-BBEE legislation, which is especially relevant if you are bidding for large contracts, corporate or government. In both cases, you need to build your B-BBEE scores.
Defining a B-BBEE strategy that makes business and moral sense is a unique process that your business should only undertake with utmost care and attention. There is no such thing as an off-the-shelf B-BBEE strategy and you should never seek to implement one.
Shareholder agreements have always been very important tools in negotiating stakeholder involvement or attracting additional investment. Usually, these agreements also included provisions regulating governance, which is of particular significance when investing in any company.
With the emphasis on maximum transparency and proper governance structures, the law has not changed, which means your shareholder agreements must align with the new Act.
Further, in terms of the provisions relating to shareholder agreements under section 15(7) of the Companies Act, shareholders may still enter into any agreement with one another provided it is consistent with the provisions of the Act and the Memorandum of Incorporation (MOI). Your MOI is defined as a document that:
“sets out rights, duties and responsibilities of shareholders, directors and others within and in relation to a company, and other matters as contemplated in section 15; and by which:
i) the company was incorporated in terms of this Act, as contemplated in section 13; or
ii) a pre-existing company was structured and governed before the later of:
aa) the effective date; or
bb) the date it was converted to a company in terms of Schedule 2.”
Therefore, in the case of a conflict between the agreement and the MOI, the MOI will now prevail. If a clause in the agreement conflicts with the stipulations of the MOI, then only that clause will be voidable and it can only be voided by a court application.
Each document introduced by the new Act has its own specific purpose that must be acknowledged and applied in the best interests of the company. Ideally, these documents should be living documents rather than dead paperwork that ends up in someone’s desk drawer, never understood nor implemented.
Accordingly, shareholder agreements that incorporate your B-BBEE strategy on ownership and your MOI’s content on governance and voting must reflect what management is actually doing to implement your long-term vision.
Your team members are not only those people on the frontline or shop-floor of your business. They also include your managers as well as your stakeholders and shareholders. The support service providers you engage are equally import to your team’s success.
To achieve your long-term vision, you need to regulate the relationships between all these parties judiciously using the most practical, feasible and business-friendly legal solutions. We strongly advise you to work with us to develop and implement the most appropriate approach for your business.
Youth Employment An Opportunity
South Africa has a high youth unemployment rate – it is vital for business to consider alternatives for youth employment.
A young female graduate with hands-on experience in setting up and running community projects, had resourcefully turned a hobby into an income-generating small business to support herself, while seeking employment… a skilled person, wouldn’t you say? It took her five long months to find employment – and in that time she received 50 rejections – 50 rejections with no useful feedback as to why she was being turned down. We employed her – and within the first few days she’d surpassed our expectations, had added ‘value’, so much so, that two weeks later we assigned her to a project.
It’s this kind of potential that company recruitment approaches seem to overlook!
There are 6-million unemployed young people in South Africa – and the social and economic transformation economy that is crucial for the country, is an economy that has been growing at less than the minimum 5-6 percent required to shrink unemployment, largely due to the under-performance of main institutions.
Business accustomed to turning problems into opportunities of value-creation regards the South African Education and Training system as one that does not deliver in equipping young people with the requisite work and readiness skills. There are government tax breaks and grants which provide opportunities for short term employment, but unfortunately these do not create value, nor are they sustainable as they are not used strategically.
Last year I had the good fortune to attend the Youth Employment Enterprise Skills Solutions (YEESS) summit in Nelson Mandela Metro – engaging with the young attendees I found that they were determined to change the view held by business that they are considered a risk, to one which recognises that they can, and do, add value and assist in realising opportunities, particularly because of their age -related attributes that give them the edge.
- are a cost advantage – they cost less (South African staff is paid on the basis of the years of work rather than the value)
- have a higher level of energy – they work faster and for longer hours
- have flexibility – they learn new tasks /systems quickly, and are often more innovative
- can increase revenue – they enjoy engaging with customers, and being ‘entrepreneurial’ (eager to promote products and services in the market)
Business should consider these opportunities – the model that many businesses currently use pays young people a stipend which usually just covers their living costs and employs them for a short period; and then the norm is to “find” something for them to do to keep them busy… a soul-destroying experience that in no way creates value and is certainly not one on which to build a career.
Alternatives to the existing model are to:
- clearly pinpoint the opportunities and define the value (that the potential employee is required to add)
- provide training – measuring potential is a challenge – a short training programme for job-seekers can clearly identify the ones who benefit most, and are thus likely to be the most valuable – and there is the plus of 4 BBBEE Skills development points for the training of unemployed people
- provide a ‘proving’ period (3 to 12 months) where goals, expectations and support are clearly laid out -this provides an important business foundation experience in a productive environment considerably improving the chances of the young person’s absorption into the business culture.
By changing the way one views youth unemployment – to see youth employment rather as an chance to reduce costs, increase revenue and contribute to the building of skills and training future entrepreneurs – presents the perfect opportunity for business to contribute to the country’s future stability and gain economic returns.
Temporary Employment Providers — Friend or Foe?
Contrary to the fact that legislation states that temporary employees work under a dual relationship between a TES provider and their client, the relationship has been questioned, confusing the situation and muddying the waters.
Currently, under a dual employment relationship, employees are given the protection of employment benefits under the TES provider and, after a three-month employment period, attain extra protection by being considered under the employment of both the TES provider and their client.
Yet various unions have pushed back against TES providers, citing that ‘labour brokers’ don’t have the best interests of the workers at heart. So, are TES providers truly the enemy — or could they be the solution?
What is a TES provider?
The term ‘labour broker’ is being bandied about with startling regularity. Surprising, because ‘labour brokering’ is actually a concept that no longer exists in legal terms, according to Joanette Nagel, Labour Specialist at Hunts Attorneys.
“It’s a term associated with ‘bakkie brigades’, those once comfortable picking up ‘piece workers’ and exploiting them with little to no consideration for labour laws,” Joanette explains. “Today’s TES providers are reputable organisations that, with the backing of the law and strict policies, provide a valuable service while ensuring that the rights and wages of temporary employees are in line with permanently employed staff.”
Sean Momberg, MD at Workforce Staffing Solutions, agrees: “A dual relationship where the employee is employed by both the TES and the client after three months means that the employee is actually afforded more protection. If, for example, the client falls into circumstances in which they can no longer honour the contract, such as if they go insolvent or a project is cancelled, the TES provider is still bound by contract to the employee and their rights to compensation, among others, are protected.”
The role of a TES in business
According to the Global Employment Trends for Youth 2017 study, conducted by the International Labour Organisation, the rapidly changing labour landscape has made the expectation of traditional or permanent employment less realistic than ever before.
“There is a global trend towards temporary employment that is supported by a new trend of flexibility in career choices as well as employment environments. The demand for TES providers to play a more active role in the labour market is higher than we have ever known,” affirms Sean.
Organisations will also benefit from this trend, especially as businesses can outsource all non-core related labour requirements, allowing them to focus on their core purpose and not concern themselves with the labour function, or the overheads associated with human resources. “A TES takes on the responsibility of employment, remuneration, legal disputes, strike mitigation, employee wellness, interactions with unions, and many other HR concerns that are extremely resource intensive,” says Sean.
A TES ensures economic continuation
“President Cyril Ramaphosa said in his recent YES initiative launch, that even those with further education often struggle to bridge the gap between learning and earning. TES providers help with bridging this gap, offering skills development that guarantees jobs,” notes Sean.
“TES providers are here to stay and offer the best of both worlds to organisations and employment seekers alike. Dual relationships continue to protect workers, underpinning and promoting their rights, while helping businesses to cover any skills and employment gaps within their organisations without having to invest in huge HR departments and legal representation to do so.”
Spotting a reputable TES provider
- Registered and compliant with the Labour Relations Act (LRA)
- Likewise with the Unemployment Insurance Fund (UIF) and relevant bargaining councils
- Has the necessary insurance and off-balance sheet financial protection in place
- Able to provide proof of regular auditing
- Able to show full legal compliance and holds a letter of good standing.
Million Rand Questions Answered By Founders Of Multi-Million Rand Businesses
Don’t waste your time asking job candidates to name their greatest weaknesses (yes, everyone will say they’re a perfectionist). Instead, try these four tips from seven entrepreneurs who offer up their best strategies.
1. Interview for growth
Building and maintaining a sustainable business is having the right infrastructure to do so, and that takes people — great people. The problem is that while you’re on your growth path, you can’t necessarily afford the best and most experienced in the market, so the trick becomes hiring people who you can see will grow with the position — you’re not hiring for now, you’re hiring for where you want to be. When we interview, we look for hungry people.
We want to know where they see themselves five years from now. — Steven Kark, Paycorp
2. Look for accountability
One of our favourite interview questions is ‘Tell me about when you missed a deadline.’ It’s an immediate red flag if they say they never have; either they’re lying or they’re not accountable. We’re looking for an answer that says they had an issue, what that issue was, that they recognised it, and how they found a solution — solution and accountability are key. We also believe technology makes the whole process easier, particularly if you are stretched for time. Spend time designing questions and then get someone else to ask them. Video each interview, watch the interviews in your own time, and then select the top candidates for face-to-face interviews. — Elvira Riccardi and Donna Silver, Afrizan
3. Dig into their current environment
We can’t compete with corporates on benefits, so we offer something even more valuable: Time and flexibility. There is a caveat though: Don’t employ someone whose benefits were better than you can offer. We interviewed someone who was a perfect candidate, except she was coming from a large corporate that offered an on-site masseuse for free, amongst other things. As much as we loved her, we knew we wouldn’t hold on to her. She was used to an office environment that we could never offer.
You need to be hiring people who are stepping up; not the other way around. We always dig into what their current office environment is like. — Renay and Russell Tandy, Ngage
4. Make them sweat
For years we had issues around high staff turnover. We realised that the problem started in the interview process. We were hiring the wrong people who didn’t suit our culture, and they would quickly burn out, or challenge our expectations. We realised that 80% of the success of a hire is culture. Natie Kirsh used to recommend going for a drive. He said that if you sit in the passenger seat and just chat, asking any questions that come to mind, the candidate will soon reveal themselves in the simplest ways. You’ll see the person, and you can make a judgement call on whether they suit the requirements of the position and the company.
We also love the questioning method of four-year olds. Whatever the answer to a specific question is, follow it with a ‘why’.
At the beginning it’s not even about the answer. Candidates will always arrive at an interview with certain rehearsed answers. If you keep asking why, eventually they have to start giving you completely unrehearsed, unplanned answers, and that’s when you’ll get a real sense of who they are. — Ran Neu-Ner and Gil Oved, The Creative Counsel
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