BE CONSISTENT IN THE WORKPLACE by Christo Bester

(The Dairy Mail September 2020 issue)

The employer-employee relationship begins with employment. This relationship is based on mutual benefits and respect and labour legislation imposes strict requirements that employers must comply with. These requirements are non-negotiable and involve a serious business risk for employers if the employment relationship is not managed in line with them.

The employment agreement

The employee is employed from the moment he/she accepts employment, irrespective of whether the relationship is recorded in the form of an oral or a written agreement. A written agreement (employment contract) does create clarity by confirming the terms and conditions of employment agreed upon and protects the employer for the duration of the employment relationship. Take note that labour legislation applies to all employers and employees, irrespective of how the employment relationship is recorded, or the terms thereof.

There is a myth that the same legislation, discipline, policies, and procedures in the workplace do not apply in the same way to fixed-term employees as to permanent employees. The Basic Conditions of Employment Act (75 van 1997) defines an employee as any person, excluding an independent contractor, who works for another person and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer.

The employment term

The only difference between a fixed-term employee and a permanent employee is the term of employment. Therefore, if the employer employs permanent employees, but also makes use of fixed-term employees according to operational requirements, it is critically important that the employer treats all employees consistently at all times, with specific reference to:

• opportunities;
• procedures;
• rules and discipline;
• working conditions and conditions of employment; and
• remuneration and benefits.

The Labour Relations Act (66 van 1995) stipulates, among other things, that a Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) must always determine whether a rule/standard in the workplace has been consistently applied. If an employer fails to apply legislation discipline, policies and procedures in the workplace consistently, his or her conduct will be classified as an unfair labour practice.