Some of us have career goals and some of us have business aspirations; for those with the latter, it cannot be more emphasized that proper research and obtaining legal advice, when hiring employees, can save you a lot of money in the long run when coordinating the labour side of business.

Working as a sole proprietor without having to manage employee relations are less difficult, but when employing, it becomes more complicated. This article is not meant to discourage the starting of a business, but it’s meant to be informative, empower and give direction. 

Two main pieces of legislation are applicable when employing employees in the workplace; they are the Basic Conditions of Employment Act 75 of 1997(“The BCEA”) and the Labour Relations Act 55 of 1995(“The LRA”). 

The BCEA 

This BCEA prescribes the minimum conditions of employment and generally speaking, an employer and employee may not contract out of the BCEA. The BCEA forms the basis of every employment contract except where: 

1. Any other law prescribes more favourable in terms of employment; 

2. Where the employment contract contains more favourable terms; or 

3. The basic condition has been replaced, varied or excluded in terms of the BCEA. 

There are certain category of employees that do not fall within the ambit of the Act but which employment relationship may be governed by a contract or other legislation. The BCEA applies to most employment relationships but not the following employees: 

1. Members of the National Intelligence Agency; 

2. The South African Secret Service; 

3. The South African National Academy of Intelligence; 

4. Unpaid volunteers working for a charitable organization of any other law; 

5. The Directors and staff of Comsec; 

6. People undergoing vocational training except to the extent that the provisions regulate any term of their employment; 

7. People employed on vessels at sea; and 

8. Independent contractors. 

Before employing it’s important to consider the five core rights as envisaged by the BCEA, these forms the core basis, or spine of every employment contract and may not be varied. There are certain rights in terms of the BCEA which can be varied in a particular circumstance. Still, the core rights in terms of the BCEA includes maximum working hours of an employee, provisions relating to night work, not less than two weeks annual leave, four months maternity leave and the provision relating to sick leave.

Although the employee and employer can contract out of the provision by agreeing to more favourable terms, the opposite will not be possible. When starting a business in a specific sector, it’s important to ascertain whether there is a bargaining counsel and whether there is a collective agreement regulating the terms and conditions of employment in that sector. Normally collective agreements can contain provisions which are more favourable than the BCEA, in which event the employer and employee relationship must be in line with the collective agreement and not the BCEA - only in as far as the collective agreement makes provision for particular sections in the BCEA. 

The LRA 

The labour relations act prescribes the rules and procedures applicable to the employer and employee relationship. Firstly, the Act makes provision for unfair dismissals and affords an employee the right to not be unfairly dismissed. Secondly, the provision relating to unfair labour practices. In terms of section 185 (b) an employee has the right not to be subjected to unfair labour practice. There are various categories of unfair labour practices defined in section 186(2); any of which may amount to unfair conduct of the side of the employer. Importantly the provisions relating to unfair labour practice does not constitute a dismissal but any unfair conduct by the employer short of dismissal may constitute an unfair labour practice. Thirdly, the provisions relating to no-fault dismissals or retrenchment. These provisions prescribe the processes relevant when an employer is suffering from financial problems and need to cut on specific resources and employees to accommodate such short-coming. 

Conclusion 

When starting a business, it is important to consider the above factors and obtain legal advice to ensure that your employment code of conduct and employment contracts are in line with the prevailing legislation in order to avoid costly disputes. 

Written by Hamlet Heneke, Professional Assistant, Attorney, Schoeman Law

Contact us at Schoemanlaw Inc for all your employment needs.