Hiring new staff – An employer’s survival guide
It should be noted that in South Africa today hiring staff can be a dangerous exercise. Our Constitution does recognise the fact that all citizens qualify for a fair labour practise. It is also necessary to have reference to the Employment Equity Legislation, the Labour Relations Act and the Basic Conditions of Employment Act.
The Employment Equity Legislation does prohibit any unfair discrimination of any nature. It must be noted at this point that there is such a concept as fair discrimination and when one peruses the Employment Equity Legislation, the concept of fair discrimination is outlined very clearly. In other words Companies may advertise for Black Employees without any fear that they would have a right of recourse by White Applicants. The Employment Equity Legislation is specifically designed to encourage the employment of designated groups. Designated groups meaning women, disabled people and Blacks. Future employers are running an enormous risk in “regretting” any person on the basis of their gender or disability. Furthermore it doesn’t help to say that premises are not accessible by wheelchair (as an example) as this would be a breach of the Employment Equity Legislation and possibly even a breach of an individuals Constitutional rights.
The argument has arisen as to whether an applicant for a position qualifies as an employee. This debate is long and complicated and up until May 2003 the law was that as described in the Woolworths case. In that case Woolworths had regretted a junior employee for a more senior position. This applicant was deemed to be merely that of an applicant and not of an employee. However, in the case Wyeth SA (Pty) Limited vs. Manqele and Others (Acting Judge van Niekerk – 26th May 2003) this Woolworths decision was for all intents and purposes overturned. The Court went ahead to define the situation as follows:
“The interpretation of the definition of employee adopted in Whitehead vs Woolworths (Pty) Limited necessarily consigns a person such as the first Respondent, who is an employee party to a valid contract of employment to become effective on a later date, to a jurisprudential limbo unless and until the party physically renders services in terms of the contract. Persons in these circumstances may well have resigned from their existing employment and put themselves to considerable risk in the expectation of commencing work in terms of an agreement that is binding on both parties at common law. To deny the statutory protection of the security of employment confirmed by the LRA interregnum between the conclusion of a valid contract of employment and the physical commencement of work seems to me to be contrary to a purposive interpretation of the definition of employee.”
In essence this means that an applicant for a job becomes an employee upon the conclusion of a letter of appointment or a contract of employment. The person need not have commenced employment. This creates a whole new area of risk for employers and in fact puts employers to a much greater test when actually interviewing and appointing future employees. It is specifically important for employers to undergo very strict testing of future employees including undergoing a very strict and finite process of questioning. The advertising process should be specific in its detail and should be careful not to discriminate against any individuals. The various tests that can be undergone beforehand are important and tests such as medical tests can be requested with consent only. At this point it should be noted that HIV testing is specifically outlawed unless done with knowledgeable consent or has been declared justifiable by the Labour Court. There are very few instances when the Labour Court will justify testing.
There are many ways of engaging future employees and it is suggested that employees make use of short term contracts, outside agencies, probationary periods and the like. These areas need to be explored and it is suggested that the reader contacts their attorneys in order to have specific advice for engaging employees. It should be noted that the contract of employment must be proffered before the employee enters the workplace and before the employee commences employment. It is incredibly difficult to force an employee to sign a contract of employment once they have commenced employment/work. This is notorious when it comes to restraints of trade agreements.
It is a necessity of the Basic Conditions of Employment to have a written contract of employment once and employee has been engaged. This contract of employment must contain certain information which is outlined in terms of Section 29 of the BCEA. The information to be contained there in must outline the full name of the employer and the employee, the wage rate, overtime rate, frequency of the remuneration and the deductions to be made (this list is not by any means finite.)
In terms of Section 33 of the BCEA it is imperative for the employer to give the employee information with regard to the remuneration. Carefully outlined terms of the legislation must be adhered to and deductions can be made in terms of the contract but must be legal and must be with written consent.
There are certain benefits in using Employment Agencies as the Employment Agencies, by definition, will not be the future employers and for all intents and purposes have a lot more leeway in the interviewing process.
It is important to note that the job description should be clear and carefully outlined, including the specific inherent requirements of that position. It is much easier to regret a future employee if they do not match the inherent requirements contained in the job description.
To sum up, recruitment and selection is a minefield and the less said when regretting an employee the better. There is no need to go into details as to why an employee has been regretted, other than to say that the candidate does not suitably fit the criteria, or has not indicated a compatibility with the rest of the staff.
MICHAEL BAGRAIM BA. LLB.
BAGRAIMS ATTORNEYS (LABOUR LAWYERS)