HR Pulse

Major legal changes alarm human resources practitioners

Human resources and Industrial Relations (IR) practitioners are aware of several new and highly important developments in the labour law arena that are expected to be finalised soon. These include:

• New legislation restricting the use of labour brokers and contract employees. This will have far-reaching significance for employers. These major amendments are expected to increase the already-powerful stranglehold that legislation has on productive business management and employment creation.
  
  
• The CCMA has issued a comprehensive set of guidelines detailing how misconduct arbitrations are to be conducted. The guidelines clarify the factors that constitute procedurally and substantively fair dismissals. It is expected that these guidelines will assist employers in implementing legally compliant discipline and misconduct dismissals.
  
  
• The new Labour Relations Act (LRA) of 1996, and numerous subsequent amendments, has hugely increased the legal obligations of employers, increased the rights of employees, given nightmares to HR/IR practitioners and severely hampered business flexibility. These include, among others:
  
  
• It is now much easier for unions to achieve recognition by employers;
  
  
• Employees, even if not unionised, are entitled, in certain circumstances, to go on strike in protest against retrenchments and insist that a CCMA facilitator participate in retrenchment processes;
  
  
• The delay period between the date that retrenchment becomes necessary and the date when the employer is allowed to implement retrenchment has been extended in certain circumstances;
  
  
• It is an automatically unfair dismissal for an employer to terminate the employment of any employee for any reason related to the transfer of a business (or any part/service of a business) as a going concern;
  
  
• Where the employee has a reasonable expectation that a fixed-terms contract will be renewed, the employer’s failure to renew it can be seen as an unfair dismissal;
  
  
• Where the employee alleges unfair dismissal the employer has the legal onus of proving that the dismissal was fair. That is, once the employee has proved that the dismissal occurred, the employers are considered guilty of unfair dismissal until they prove themselves innocent;
  
  
• Even where the employer is not aware about what the employee is alleging is unfair about the dismissal, the employer is required to present his case first at arbitration and in the Labour Court; and,
  
  
• It is the company and not the actual perpetrator of sexual harassment who gets sued in the Labour Court.

 
HR/IR practitioners are reminded that, in addition to this draconian legislation, changes in case law have drastically tightened the noose around the necks of employers. That is, the courts and arbitrators are continually making decisions that have the effect of moving the goalposts. This is more often than not to the detriment of the employer. These case law decisions further the lives of HR/IR practitioners because too many of these decisions conflict with one another, which causes major confusion. Such case law includes, for example:

• Findings that employees are not always restricted to being represented at disciplinary hearings by fellow employees and are entitled to bring external representatives such as trade union officials and lawyers into internal disciplinary hearings;
  
  
• The Constitutional Court has given the CCMA licence to reinstate employees with long service who have committed gross misconduct;
  
  
• A person attains the legal status of an employee even before the scheduled start date of his/her employment where the conclusion of the employment agreement pre-dates the appointment date.

 As if the above is not enough to scare potential employers off from starting up businesses or expanding their workforces, the Department of Labour has also advanced plans to tighten the legislation further allowing the use of labour brokers, fixed-term contracts and the use of external contractors.

Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .