Limiting Employment Claims – Protection Where It’s Needed
What does "Limiting Employment Claims" mean? This title simply means that employment claims are to be viewed in a more holistic manner. When people consider the notion of any right, they focus mainly on the person who is at the bottom of the vertical ‘rights relationship’. Thus, when we consider the employer/ employee relationship we tend to over-emphasize the rights of the employee, this is because they are viewed to be in a more vulnerable position in comparison to the employer. It will always be an unpopular notion to have Goliath win the battle, but it is necceary to consider what is fair in any given situation.
South African Labour Law has done well in encompassing the rights of both parties in this relationship and it is viewed to be one of the most progressive in the world. This is because of the protection awarded to employees’ rights as well as the manner in which dispute resolution procedures are structured. Forums such as the CCMA and Bargaining Councils make dispute resolution between employers and employees more expedient, cost effective and less formal.
The same forums and rights which are afforded to employees, in the form of the structure of the rights, reciprocal duties and processes, apply to employers as well. This is a holistic and fair approach and indicative of the progressive legal framework in which we operate, where there should be no favour or bias.
An example of a matter in which the rights of the employee were protected from the abuse of an employer is the case of Building Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC & another (2001) 22 ILJ 120 (LC). In this case, an employee was required sign an independent contractor agreement which resulted in him having no employment rights. Here the employee’s vulnerability, as a cabinet maker, was taken into consideration and a finding was made against the employer.
However, in the case of CMS Support Services v Briggs it demonstrates the opposite approach, as taken by the Labour Appeal Court in 1997. In this matter, it was found that an employee who elected to become a consultant (for tax purposes) had made an informed decision regarding her rights and duties as an employee or a consultant and thus, had no right to claim employment protection.
The Labour Courts must always consider, amongst other factors, whether an employee is of a sufficiently executive, senior or professional status and adjudicate on a matter having regard to those factors, as was the case in the aforementioned Briggs matter. This ensures that labour procedures are not abused or manipulated by those who understand the system, thus placing the employer in an unfavourable position.
The transverse naturally applies to employees who are viewed to be in a vulnerable position based on their lack of seniority, professional status or experience. This does note mean that there is favour on either of the parties in the employment relationship, but it indicates that the scales are balanced in such circumstance as a result of the safeguards which are put in place by South African Labour Laws.
Should you have any labour related enquiry or require assistance in this regard, please feel free to contact our offices.