IVAN ISRAELSTAM: Employers must learn to walk the labour tightrope

Section 23(1) of the constitution provides that “Everyone has the right to fair labour practices.”

This would mean that both employees and employers should have the right to fair labour practices and should be able to sue each other at the Commission for Conciliation, Mediation and Arbitration (CCMA) for breaching such rights. However, the Supreme Court of Appeal appears to disagree. 

In the case of NEWU vs CCMA (2007, Vol 16 No 11 CLL page 111) both the CCMA and the labour court found that the CCMA does not have jurisdiction to hear a case brought by an employer for unfair treatment by an employee. The court said: “It is not thought that employers need any protection against unfair resignations by employees... The majority of workers in this country are still ununionised and remain extremely vulnerable.” The court concluded that legislation that would give the employer protection “... would be a step backwards in the field of labour relations and employment law in our country”.

In my view, it is a very broad generalisation to say that every employer is more powerful than its employees. Many employers are struggling to survive. And indeed, many employers are forced by economic weakness to close down.

Be that as it may, it is clear that the courts are not prepared to uphold the employer’s constitutional right to fair labour practice. It is also clear that labour legislation is there to protect employees. Whether this is fair or not is academic. The fact is that if employers cannot rely on the law for protection they must protect themselves. This involves implementing systems, strategies and mechanisms for protecting the employer’s interests. Employers are warned, however, that these self-protection mechanisms must themselves comply with the labour law to avoid infringing myriad employee rights contained in our labour legislation. 

So, how can employers protect themselves? They need to learn how to walk the labour law tightrope between legal compliance and productive workplace management. This they can do by ensuring that all managers and supervisors who hire, manage and fire employees have a thorough and clear grasp of what they may and may not do in carrying out their duties. That is, employers should train all managers and supervisors in the knowledge and skill required to manage employees in line with the law but, at the same time, in line with the requirements of productive workplace management. 

Employers should develop human resources policies, procedures and rules that guide management in controlling employees both effectively and in compliance with the law, and ensure that they have, within easy reach, reputable experts in employee relations and labour law who are able to guide employers in developing the above systems and to advise the employer on all employment issues. 

The above protection mechanisms, if they are properly implemented, can assist towards levelling the playing fields in which employers and employees operate. They can enable employers to operate profitably while treating employees fairly. 

• lsraelstam is CEO of Labour Law Management Consulting.