How to avoid labour disputes
The number of disputes referred to the CCMA in South Africa per year is approaching the 200 000 mark. This excludes disputes referred to bargaining councils in major industries. While many disputes are settled in the process (59%), there can be no doubt about the time, cost and potential risk involved for employers facing such disputes. As we know, it is relatively simple and cost-free for an employee to complete a LRA 7.11 form to the CCMA. While disputes can not be avoided totally or settled in all instances, in most cases the adage “prevention is better than cure” should apply. Three major factors could assist employers to proactively avoid disputes: 1. Fairness (or equity) This concept is the cornerstone of SA labour law. Fairness is the foundation of all the mechanisms in SA labour legislation, e.g. the unfair labour practice provisions in Section 186 of the Labour Relations Act (LRA), the unfair-dismissal protection in chapter VIII of the LRA and the guarantee of fair labour practices provided in section 23 of the Bill of Rights in the Constitution (which, by the way, also creates the right to fair labour practices for employers, not only employees). But what exactly is “fairness” in labour law? The following is a broad definition:
“Fairness is a value judgement based upon the moral norms of society, taking into account the specific circumstances of each particular situation, comprising procedural as well as substantive elements and requiring consistent action in similar matters.”
So, if an employer wants to act proactively to avoid disputes, meeting these requirements should be the point of departure.
2. Employee engagement
Over the past 10 years, much research has been done about the positive impact of highly engaged employees on an organisation. It is now commonly accepted that employee engagement will benefit your organisation, if implemented effectively. Hundreds of studies have shown that engaged employees are more productive; deliver better customer service; are more innovative; are more likely to remain in your organisation; and are less prone to conflict and disputes. For engagement to be improved sustainably over the long term, it has to be approached strategically, creating an organisational culture and collaborative work environment where employees are genuinely involved, looked after, and cared for. For more on how to drive sustainable engagement, click on this link: www.mindsetmanage.com/engage/ analytics.
3. Keeping your house in order Adhering to fair labour practices, the principles of fairness and engaging employees may well be of academic value if the employer’s own house is not in order or if there is a “toxic” working environment. Employers should ensure employment contracts, policies and procedures are constantly kept up to standard, are well-balanced and protect your rights as employer.
SA labour legislation tends to be “worker friendly”, so employers should make double sure their rights are sufficiently protected in the formulation of in-house employment contracts, policies and procedures. SA labour laws are also amended regularly. Employers should undertake an annual audit of these documents to ensure their rights are protected as best possible. In conclusion, employers should, where possible, try to settle disputes through a process of facilitation and compromise before they escalate.
Dr Lukas du Preez and advocate Jacques du Preez provide an all-inclusive labour law service to all organisations who need this, focusing on the Southern Cape.
Contact details
Lukas du Preez: 083 700 3134 / dpa@lantic.net
Jacques du Preez: 083 777 0515 / jdupreezlaw@gmail.co.za
BIOGRAPHY:
Dr Lukas du Preez is an advocate of the High Court, specialising in labour and constitutional law, with more than 30 years’ experience. He holds a doctorate in labour law, completed in 2010. The title of his thesis was “The development of the fairness concept in SA labour law”. Before practising as advocate, Lukas was employed by the Afrikaanse
Handelsinstituut as labour adviser for some years. He was also earlier appointed group IR manager to Sasol. Lukas has been involved in the facilitation and mediation of many major disputes across industry, acting only for employers.
Advocate Jacques du Preez holds LLB and LLM (advanced labour law) degrees and practised as a member of the Cape Bar before joining the FW de Klerk Foundation, promoting constitutional rights. Subsequently, Jacques focused on labour law and also completed numerous international legal consultancies (inter alia for the United Nations) in countries such as Pakistan, Nepal and Tanzania.
Jacques was appointed as international legal training director (Geneva) for International Bridges to Justice, undertaking projects in Rwanda, DRC, Sri Lanka and China providing legalskills training to jurists. He recently returned from Switzerland and now resides in George where he and his father Lukas have joined hands in practising labour law, focusing on employers.
Apart from day-to-day advice regarding labour law and industrial relations, Lukas and Jacques can assist with audits of existing procedures, contracts and policies relating to employment and/ or compiling “management-friendly” procedures/documents. Assistance can also be provided regarding discipline, grievance handling, disputes, arbitration/ mediation and all training requirements. They make it their business, rather than merely providing advice and information, to focus on avoiding costly and timeconsuming disputes.