Back Micma



So What Protection Is There For Employees

Employer Protection: Is there any?                                                                   Page 1 of 2


The Constitution, 1 states "Everyone is equal before the law and has the right to equal
protection and benefit of the law" and "Equality includes the full and equal enjoyment of
all rights and freedoms" 2 and further, "everyone has the right to fair labour practices". 3

The constitution further states, "A juristic person is entitled to the rights in the Bill of
Rights to the extent required by the nature of the rights and the nature of that juristic

Does this mean, that as long as the nature of the right makes it possible for the juristic
person to benefit from the right, the juristic person is entitled to it. If so, it would mean
employers should have the right to fair labour practices by employees and should be
able to sue employees in the CCMA for breaching such rights.

The Labour Appeal Court, however, disagrees.

In National Entitled Workers Union v Commission for Conciliation, Mediation &
Arbitration & others [2007J 28 ILJ 1223 (LAC) considered whether, by failing to
provide employers' with a remedy for unfair labour practices perpetrated against
them by employees while providing such a remedy for employees, the
provisions of the Labour Relations Act 1995 and the Employment Equity Act
1998 offended against the employer's constitutional right to equity before the
law. The court concluded that they did not. In the court's view the need for such
legislation had not arisen because employers have greater social and economic
power than individual workers, and do not require greater protection than that
already available to them in terms of the BCEA 1997 and at common law.

The Court concluded, that legislation that would give employers protection
" .... would be step backwards in the field of labour relations and employment law
in our country."

If employers can not depend on the law, 5 how, then must employers protect
themselves in a way that conforms with the law on the one hand, but is effective
on the other hand?

Employers will have to implement systems, strategies and mechanisms for
protecting themselves. These systems and mechanism must themselves
comply with labour laws in order to avoid infringing the myriad of employee
rights contained in eight labour acts, countless labour regulations, codes and a
multitude of court decisions.

1 S 9(1) Bill of Rights
2 S 9(2) Bill of Rights
3 S 23(1) Constitution
4 S 8(4) Constitution
5 Labour Relations Act & other Labour legislation

MICMA & Associates              Information Sheet 4 of 2008


Employer Protection: Is there any?                                                                  Page 2 of 2

Such protection systems, strategies and mechanisms might include:

  • Developing a through, comprehensive and in-depth understanding of
    all aspects of labour law;

  • Ensuring that all managers and supervisors who hire, manage and
    fire employees have a clear understanding of what they may and may
    not do in carrying out their duties;

  • Ensuring that all managers and supervisors are trained in the
    knowledge and skill required to manage employees in line with the
    law but, at the same time, in line with the principles of effective

  • Developing human resources policies, procedures and rules that
    guide management in controlling employees both effectively and in
    accordance with the law;

  • Ensuring they have, within easy reach, reputable experts in employee
    relations and labour law who are able to guide employers in
    developing the above systems and to advise the employer in cases of
    employee misconduct, discipline, retrenchment, takeovers, mergers,
    trade union recognition, wage negotiations and possible CCMA


MICMA & Associates               Information Sheet 4 of 2008

©Micma and Associates 2008 - Website designed and maintained by TDJ