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Prepared by Rael Solomon and
The Labour Consultancy.
THIS week, Rael Solomon examines the new labour dispensation's tough new rules and explains the pitfalls of part-time employment.
The rigidities of new labour legislation is causing many employers to restructure their hiring practices they are now thinking twice before employing new workers. It can be argued that the leg-
islation the Labour Relations Act and the proposed Basic Conditions of Employment Act has had a negative effect on job creation. It is often those employers with reasonably good labour relations in the past who are being made to pay the price of not rigidly following the procedures required by the LRA.
The government’s stated aim of its new labour relations framework was to level the playing field between employers and employees. It has achieved more than that and the pendulum has swung firmly in employees favour. It is especially in the field of non-standard (contract or part-time) workers and domestic servants where employers are thinking twice about employing new staff.
The Labour Consultancy regularly receives correspondence via the Labour Guides section of the Business Times web site from employers who are making do without live-in domestics as there are too many problems in disciplining or dismissing unsuitable employees. Here are some of the details
of the new LRA as it affects contract and domestic workers.
Probationary periods
Probation still offers the best opportunity to ascertain an employee’s potential, but all relevant legislation must be studied and carefully applied. Such is the minefield created by the LRA that most large companies have human resources departments or employ labour consultants on a retainer basis. Before the LRA became law, an employer and an employee could enter into a contract where it was agreed that either party could terminate the arrangement with 24 hours’ notice. The LRA overrides all contracts where conditions are imposed which are less favourable than those specified by the LRA.
During the probationary period the employer should give an employee such guidance and counselling as the Act deems appropriate. The employee may be dismissed for misconduct or incapacity, but the same procedures as required by the Act for dismissing a permanent employee should be followed. Many em-
ployers who dismiss employees during probation are being taken to the Commission for Conciliation, Mediation and Arbitration for unfair dismissal and being made to pay thousands of rands in compensation, usually for not following correct procedures.
Maternity leave
Any suggestion that an employee has been dismissed for reasons pertaining to her pregnancy could result in a claim for up to 24 months’ remuneration in compensation. With Cosatu asking for up to six months’ paid maternity leave with full job protection, many employers are thinking twice about employing females.
Domestic workers
For the first time domestic workers are protected by labour legislation and may be dismissed only for the same reasons and with the same procedures required for any other sector of the economy.
Many employers are reluctant to employ live-in domestics for fear of not being able to get rid of an employee who is spoiling the home atmosphere. These employers often resort to part-time or casual workers without realising that it could be just as difficult to get rid of them if the proper procedures are not followed correctly.
Discrimination
An employer who unfairly discriminates against a worker on racial, sexual orientation, age, disability or similar grounds may face an unfair dismissal case. Protection has been extended to cover job applications and an employer who is found to have arbitrarily discriminated against an applicant may find compensation has to be paid or could even be required to employ the applicant.
The only exception is if the job requires specific gender employment, such as for a female nurse in the women’s ward of a hospital. It should be noted that newspapers will not accept advertisements which are discriminatory. For example, "a white male chauffeur," or "a black female receptionist".
Temporary employment and contract workers
A temporary worker whose services are provided to a client by a temporary employment service is the employee of the service and not the client. Should a company employ a worker for a temporary position other than through a service, the temp should be advised clearly in writing of the temporary nature of the position. For the employer, without written contracts this could result in a dispute for unfair dismissal. A person who is employed as an independent contractor is not an employee. If the status is not clearly established, in writing, however, this can also lead to problems.
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