Employers, be consistent!
The employee is employed from the moment he/she accepts employment, irrespective of how the relationship is recorded – via an oral or written agreement. A written agreement (employment contract) however creates clarity by confirming the terms and conditions of employment agreed upon and protects the employer in terms of the employment relationship going forward. Take note that labour legislation applies to all employers and employees, irrespective of how the employment relationship is recorded, or the term thereof.
There is a myth that the same legislation, discipline, policies and procedures in the workplace does not apply in the same way to fixed term employees, as it does to permanent employees. The Basic Conditions of Employment Act defines an employee as any person, excluding an independent contractor, who works for another person and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer.
The only difference between a fixed term and a permanent employee, is the term of employment. Therefore, if the employer employs permanent employees, but also makes use of fixed term employees according to operational requirements, it is critically important for the employer to continuously act consistently with regards to ALL employees, with specific reference to:
- rules and discipline
- working conditions and conditions of employment
- remuneration and benefits
The Labour Relations Act stipulates, among other things, that a commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) must always investigate if the rule/standard in the workplace was consistently applied. If an employer fails to be consistent in applying legislation, discipline, policies and procedures in the workplace, the conduct will be classified as unfair labour practice.
Possible orders against the employer?
- CCMA: 3-12 months’ salary and/or reinstatement
- Labour court: 3-24 months’ salary and/or reinstatement
The LWO is a registered employers’ organisation with the Department of Labour and automatically has the right to represent our members in the CCMA, Bargaining Councils and Labour court. We have a proven track record at the CCMA with a success rate of 99.98%! The LWO was established in 1990 and have been assisting employers for 30 years!
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