HR 101 - Are Employees Protected

ARTICLE 54

Are Employers Protected

By Nikki Viljoen of Viljoen Consulting CC March 2010

To say that several of my clients have been seriously challenged by some of their employees over the last couple of months would be nothing short of a huge lie!  It’s almost like all the employee misfits of society got together and decided to cause as much chaos in the workplace as they could.  Great business for me, but seriously challenging for my clients.  One of the questions raised by most of the clients affected is “Are Employees protected or is it all for the employee?”

Well here are some facts:

• Section 9 (1) of the Bill of Rights contained in the constitution of South Africa says “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
• Section 9 (2) of the Bill of Rights contained in the constitution of South Africa says “Equality includes the full and equal enjoyment of all rights and freedoms.”
• Section 23 (1) of the constitution says “everyone has the right to fair labour practice.”

Here’s the thing though – what does the constitution mean by “everybody” and how “equal” is everyone?  Our perception is that there are some that are more ‘equal’ than others.

Well in my opinion (and remember I am not a legal person) this should mean that employers should have the same rights to fair labour practices as employees and that they should also be entitled to take their employees to CCMA, and sue them for breaching their rights.

Unfortunately, it appears that my opinion does not count as there was a case where the Labour Court said that the CMMA did not have to hear a case where an employer brought charges against an employee for ‘unfair treatment’.  In fact 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 un-unionised and remain extremely vulnerable.” And “in my view the employer remains very economically strong compared to an individual worker and the fact that this protection is afforded the employee but no similar protection is afforded the employer does not come anywhere near to diminishing the power that the employer has.”

Clearly the courts are not prepared to uphold the constitution for all – it only applies to some and furthermore clearly, not everyone is equal!

Sadly there are small companies all over this country, that are closing down due to the economic challenges they face and these are made worse by problem employees who are out to make a quick buck and who have no scruples about who their actions affect.

So how do employees protect themselves, well for me, as usual, it is about implementing systems.  Policies and procedures are a basic requirement of any business and even as a ‘one person show’, I have them implemented in my business.  I have checklists on the ‘when things must be done’ type of issues as well as checklists on the ‘how things must be done’ type issues.  In the chaos and speed that we currently run around in, it is easy to ‘miss’ a step in whatever it is that I am doing and believe me, that ‘missed’ step is going to have a consequence (and one that usually hits me in the pocket/wallet area).

The majority of my clients who were ‘challenged’ by their employees over the last couple of months, did not have the relevant policies and procedures in place and the consequences cost them and those that did have policies and procedures had not implemented them or enforced them and therein lay their greatest problem.

As I’ve said before, and will no doubt say many times again – policies and procedures should be implemented in every business – they protect us from our own stupidity!  Having those policies and procedures on hand and not implementing them  . . . .  well enough said on that!

Understand though, that any ‘self protection’ mechanism that you indulge yourself in, will have to comply with the Labour Laws as ‘equal’ or not, ‘fair’ or not – the workers rights cannot be tampered with. That said however, at least if the policies and procedures are in place, there can and should be consequences!

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za