The process of managing employee performance is often problematic for small and medium-sized companies that cannot afford to recruit em-ployees with specialised labour and employment law knowledge, says law firm Eversheds partner Felicia van Rooi.

Such companies run the risk of carrying out dismissals without complying with the required procedures.

She adds that bigger com- panies more easily comply with these procedures, which are stringently regulated by the Labour Relations Act (LRA), because they can afford to recruit staff that have specialised labour law knowledge.

Van Rooi says that a possible solution to this problem is for small to medium-sised enter- prises to join an employer organisation.

“Most sectors have employer organisations that can assist small to medium-sized enterprises with advice when dealing with disciplinary issues. It would be wise for these companies to join these employer organisations and seek assistance from them when needed, as this will save them money in the long run,” she says.

“We have noticed a trend in certain sectors, where especially unskilled employees in small- and medium-sized companies are unfairly dismissed and, subsequently, find it difficult to enforce arbitration against their employers. Among the reasons for this is that some of these companies, when faced with a costly arbitration, close down without being properly liquidated and then set up another company that operates with the same machinery, employees and services of the old company,” Van Rooi explains.

“Although labour legislation makes it possible to hold these types of employers liable, it often involves lengthy and expensive court action, something which indigent employees cannot afford,” she says.

Van Rooi adds that a lack of labour law knowledge is a major problem faced by employees and employers when dealing with labour disputes.

“This results in employees referring cases to the Com-mission for Conciliation, Mediation and Arbitration (CCMA) and the labour court that do not have any prospects of success. This is particularly frustrating for employers because they have to spend a lot of time and financial resources on cases that do not have any merit. “This is often not the em- ployee’s fault but rather due to the employee’s lack of knowledge of our labour laws and the fact that employees can approach the CCMA and the labour court on an unrepre- sented basis,” she adds.

To tackle the lack of specialised labour services available to indigent employees, Labour Court Judge President Dunstan Mlambo has joined forces with the South African Society of Labour Lawyers to set up a pro bono advice centre to assist and advise such employees in cases that have been referred to the labour court.

Van Rooi notes that all labour law departments of major law firms in South Africa, as well as specialist labour law firms, are involved in the project, which was launched at the labour court in February 2011.

Further, Van Rooi says that trade unions and university law clinics also provide labour relations advice to indigent employees but that not all employees make use of these services.

Backlog
Meanwhile, the Labour Court’s ongoing case backlog is causing frustration for the labour and employment sector, she says, noting that some cases can take up to three years to be finalised.

However, in attempting to address the backlog, Mlambo is introducing measures such as the Legal Aid Board’s exten- sion of its services to offer inde- pendent legal advice to indigent South Africans through the opening of about 60 justice centres throughout the country.

Poor service delivery in remote areas in South Africa is also being tackled through a pilot project aimed at creating better integration and coordination between advice offices and the board’s justice centres.

A joint venture by the Legal Aid Board and grant assistance organisation the Charles Stewart Mott Foundation aims to improve contact with civil society organisations, particu-larly at advice offices that have often acted as critical frontline sites for access to justice for the public.

“Positive results will hopefully be visible within the next year or two,” Van Rooi adds.

In other news, government recently published four draft bills for public comment, namely the proposed Labour Relations Amendment Bill, the Basic Conditions of Employment Amendment Bill, the Employment Equity Amendment Bill and a new Employment Services Bill. Employers had until February 17 to submit comments on these proposed changes to labour legislation.

The aims of the proposed bills are to avoid exploitation of workers and to protect the employment relationship, subcontractors and outsourcing, as well as to introduce laws to regulate contract work, address the problem of labour brokering and prohibit certain abusive practices.

The Department of Labour has announced that provisions will be introduced to facilitate the unionisation of workers and the conclusion of sectoral collective agreements to cover vulnerable workers in these different legal relationships, and to ensure the right to permanent employment for affected workers.

Van Rooi notes that the rights of fixed-term workers and labour brokers are sparking the most controversy around the bills.

The Basic Conditions of Employment Bill and the Labour Relations Amendment Bill propose more benefits to employees employed on fixed term contracts, while the Basic Conditions of Employment Bill proposes that fixed term em- ployees should receive the same, or similar, benefits as permanent employees.

Further, she says that the Labour Relations Amendment Bill proposes that employees be employed permanently unless justification can be established for their employment on a fixed-term basis.

“There are certain categories of employers currently abusing fixed-term contracts and, in some instances, fixed-term contracts are being issued to employees for several years without employees being employed on a permanent basis. If a position is available on an indefinite basis, there is no reason why an employee should not be made permanent in that position,” she says.

Van Rooi believes that this positive change will provide more certainty regarding employment for employees, as the proposed section does not seem to seek to abolish fixed-term contracts, and employers that have genuine reasons for employing employees on fixed-term contracts will not have a problem doing so in future.

Moreover, the Basic Con-ditions of Employment Bill effectively allows the Minister of Labour to ban labour brokers in certain sectors. Section 198 of the current Labour Relations Act, which deems employees to be employees of labour brokers, is to be repealed, but existing labour brokers will continue to exist for three years and must register in terms of the Employment Services Act.

“A major problem with the proposed bills is that they do not clearly spell out whether there will be a complete ban of labour brokers,” Van Rooi adds.

“There is no doubt that labour brokers and employers in certain sectors have exploited this provision and there is a need to address current labour broker- ing practices. It is, therefore, necessary to regulate labour brokers, but a complete ban on labour brokering would be undesirable because there are a large number of employees who currently rely on labour brokers for employment,” she explains.

She also notes that the highly administrative nature of the Employment Services Bill has the potential to create an administrative nightmare for both State institutions and companies.

However, Van Rooi admits that certain aspects of the Employment Services Bill are laudable, such as government’s proposed assistance with retrenchments in recessionary markets.