JACO SWART, National Supervisor and Collective Bargaining Co-ordinator of the National Employers’ Affiliation of South Africa (NEASA)
Over the years, lots has been written by a large series of commentators on the inflexibility and stringent requirements of the South African Labour Law dispensation.
This commentary normally centres eventually of the rigorous moral and administrative requirements surrounding the dismissal of workers, moreover to the influence advanced labour laws has on the potential of employers to adapt rapid to changing conditions.
These shortcomings discover, all yet again, been laid naked in the most modern incidences of unrest, looting and vandalism which caused many corporations to be unable to commerce. The straightforward query is, what are these employers to realize in appreciate of their duties towards their workers where there could be on the 2d no work for them to perform?
The employment relationship between the events attracts two aspects of the law that deserve attention in this context. The foremost is the contractual goal exact that an employee has relating to his/her contract of employment and the 2d is the employee’s constitutional goal exact to gorgeous labour practices as contained in the Labour Household Act. This signifies that an employee has two certain applications of action on which to sinister a claim in opposition to his/her employer.
By a purely contractual claim, the employee will ought to speak that the employer is in breach of its duties relating to the contract, to remunerate him/her where the employee is tendering performance and could presumably presumably claim particular performance or damages. In the recent conditions, an employer could presumably presumably also successfully be in a recount to withstand these claims by a defence of force majeure or impossibility of performance, every of which comes with its possess complexities.
Force majeure, also known as ‘an act of God’ is a belief that is not inform in the South African standard law, however is a precept that will be integrated exact into a contract. In terms thereof, the events to a contract could presumably presumably also stipulate conditions below which a celebration will be excused from performing for as prolonged as a particular contrivance of unforeseen conditions persist, or below which a celebration could presumably presumably also terminate an settlement could presumably presumably also restful the inability to perform be of a everlasting nature. An employer will not be in a recount to count on this, could presumably presumably also restful this kind of force majeure clause not had been integrated in the employment contract.
In the absence of a force majeure clause, an employer could presumably presumably also restful count on the usual law precept of ‘intervening impossibility’ to protect a contractual claim. By this precept, if some kind of match, i.e. fireplace, flood, riots etc. makes it not attainable for a celebration to perform relating to a contract, this kind of celebration will be excused from his/her obligation. Nonetheless, the burden of proof for this defence is intensely inspiring to discharge, because the employer will ought to note that it is objectively not attainable to perform and not that it will merely be inspiring or disproportionally burdensome to realize so.
Even though an employer is in a recount to efficiently protect a contractual claim, it does not absolve it from probably liability based totally on the coolest to gorgeous labour practices. The defences talked about above are not accessible to an employer where an employee claims some kind of unfair labour be conscious. That is so on memoir of a claim based totally on breach of contract depends on the lawfulness or not of such breach, whereas an unfair labour be conscious depends on the equity and not the lawfulness thereof.
The recent net web page, where the employer cannot goal as a consequence of the riots, could presumably presumably also restful be critical from the fetch web page that prevailed for the duration of the Covid-19 exhausting lockdown. The lockdown guidelines prevented both the employer and the employee to perform relating to the contract, because the employer could presumably presumably also not goal and the employee used to be not licensed to tender his/her companies. Therefore, the precept of no-work-no-pay is applied.
In the recent conditions, as prolonged because the employee tenders his/her companies, the employer is obligated to perform relating to the contract. This does not suggest that the employer ought to provide work to the employee, then again, the employer is obligated to pay the employee.
Even though there are a series of alternatives accessible to those employers, they’re wholly rotten as a consequence of the persona of the specified processes, the time intervals associated therewith and the attainable moral ramifications emanating therefrom.
An employer could presumably presumably also decide to enforce rapid-time or a lay-off for the duration that it is unable to commerce, then again, these processes require consultation and settlement with the employees in portray to enforce them fairly. The South African labour laws possess no standard provision for rapid-time or lay-offs; which capability that, the coolest to enforce these processes wants to be received by the employer by advantage of such provisions in the particular person contracts of employment, a collective settlement or in the absence of any of the former, by settlement with the employees.
In the absence of any settlement, the employer could presumably presumably also ought to resort to initiating a retrenchment course of which is technical, time-tantalizing and carries a worth implication for the employer relating to severance packages, move away balances and notice pay, all whereas the employer cannot generate any earnings and has to rebuild the commerce.
It will be attainable for the employer to unilaterally enforce adjustments to the stipulations of employment. That is, then again, also not with out possibility, as such action paves the formulation for protected strike action. It could well presumably presumably also, in any match, not be an even possibility because the specified adjustments to the stipulations of employment, in portray to tackle the recent net web page, are so excessive and most foremost in nature, that it could probably presumably presumably also successfully be considered as an unfair- or positive dismissal, if the employees could presumably presumably also restful resign, claiming that the actions of the employer made it intolerable to proceed with the employment relationship.
Another pure possibility is for the employer to merely liquidate the commerce, inserting the employees in the fetch web page of collectors of the property. Nonetheless, this is rarely always indubitably the specified possibility and never viable for employers who wish and want to rebuild their corporations for the sake of the economy, their workers and their possess livelihoods.
Even though the riots discover offered the quintessential example of the unsuitability of the South African Labour Law dispensation, there are varied other sets of conditions where the rigid and stringent laws and guidelines are combating employers from adapting to changing conditions, accessing alternatives and competing on a global scale.
It is time to let commerce attain commerce with out being hamstrung by bureaucratic red tape and guidelines that attain not assist any individual in the prolonged timeframe