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Resolving Employee Problems: Expert Solutions for Workplace Disputes

Resolving Employee Problems Expert Solutions for Workplace Disputes

What is a workplace dispute?

A workplace dispute refers to a conflict or disagreement that arises between employers and employees or between co-workers within a workplace setting. These disputes can involve a wide range of issues, such as employment contracts, workplace policies, wages and benefits, discrimination, harassment, wrongful termination, breach of employment agreements, or violations of labour laws.

Workplace disputes can occur in various forms, including verbal disagreements, written complaints, disciplinary actions, or formal legal proceedings. They may be resolved through internal mechanisms such as negotiations, mediation, or grievance procedures, or they may escalate to external processes like arbitration or litigation.

It is important to note that the specific laws and regulations governing workplace disputes can vary depending on the jurisdiction and the nature of the dispute. 

Laws Governing Labour Relations in South Africa

The Labour Relations Act, 1995 (LRA) provides for the resolution of labour disputes through the establishment of the Commission for Conciliation, Mediation and Arbitration (CCMA), industry bargaining councils, the Labour Courts and the Labour Appeal Court (LAC). The LAC is generally the final court of appeal, although when an employment dispute involves a constitutional issue, appeals to the Constitutional Court are possible.  The LRA also provides protection for employees against unfair dismissal and unfair labour practices, with further guidelines provided for in several codes of good practice.

The Basic Conditions of Employment Act, 1997 (BCEA) prescribes the minimum conditions of employment which employers must grant to their employees. This is to give effect to the right to fair labour practices referred to in section 23 of the Constitution, 1996. The BCEA regulates matters such as working time, leave, notice periods, particulars of employment (the minimum details that must be communicated to employees, usually in an employment contract) and the keeping of records regarding remuneration. Employers are prohibited from employing employees on terms and conditions which are less favourable than those prescribed by the BCEA, even if an employee agrees to them. This means that employers and employees cannot contract out of the provisions of the BCEA. However, employers may provide for conditions of employment which are more favourable than those prescribed by the BCEA. 

The National Minimum Wage Act (NMW Act) came into force in South Africa in January 2019.  The introduction of the NMW Act is a significant labour market intervention which has raised wages for millions of workers. According to the NMW Act, the national minimum supersedes any minimum wages set by Bargaining Councils or via the Sectoral Determination system – where these wages are lower than the prescribed national minimum wage.

What are some strategies for resolving labour disputes?

A key objective of effective in-house systems and procedures is to ensure that wherever possible, the parties resolve the dispute through a consensus-based process such as conciliation and mediation, before resorting to arbitration or litigation.

Here are some commonly employed strategies for resolving employment disputes:

  1. Negotiation: This entails encouraging open dialogue and negotiations between the parties involved to reach a mutually acceptable agreement. This can involve discussing concerns, proposing solutions, and finding compromises.
  2. Mediation: Involves a neutral third party to facilitate discussions and assist in finding common ground. A mediator helps the parties explore options and work towards a resolution without making decisions for them.
  3. Arbitration: Arbitration is a more formal process where an impartial arbitrator hears both sides of the dispute and makes a binding decision. This is commonly used when negotiation or mediation fails to reach a resolution.
  4. Collective Bargaining: This process is used for disputes involving unions engaging in collective bargaining sessions where representatives from the union and the employer negotiate terms and conditions of employment. This process helps establish mutually agreed-upon terms and resolve conflicts.
  5. Employee Assistance Programs (EAPs): Offering confidential counselling and support services to employees to address personal or work-related issues that may contribute to the dispute. EAPs can help employees manage stress, improve communication, and find solutions.
  6. Grievance Procedures: Establishing formal procedures within the organisation to handle employee complaints and grievances. These procedures outline steps for filing complaints, investigating issues, and finding resolutions.
  7. Legal Remedies: In situations where employment disputes involve legal violations, parties may resort to legal actions such as filing complaints with labour authorities, pursuing litigation, or engaging in alternative dispute resolution processes prescribed by law.
  8. Training and Education: Providing training programs and workshops on conflict resolution, communication skills, and workplace policies to improve understanding, prevent disputes, and equip individuals with tools to address conflicts effectively.

The choice of strategy depends on the nature and severity of the dispute, the parties involved, and the applicable laws and regulations in a given jurisdiction. Litigation should always be a last resort, particularly given the high costs of legal fees and the inherent risks associated with litigation. When the monetary value of the issue litigated on is a relatively low amount, there is even more reason not to litigate. This is why Caveat’s litigation support service is so important, as our clients are assisted as far as possible to avoid litigation, and where litigation is unavoidable, to strengthen their position to mitigate the risks associated with the litigation.

Some FAQs regarding employment law

While section 29 of the BCEA requires an employer to provide an employee with written particulars of employment, this does not always happen.  The establishment of an employment relationship is however not dependent on the existence of a written employment contract. An employment relationship comes into existence when an offer of employment, made by a prospective employer, is accepted by a prospective employee.  The essential terms of the offer must include (a) what the employee will be doing, (b) when the employee will start work and (c) what the employee will be paid.   If there is a meeting of the minds on these aspects an employment relationship will exist.

This is a form of dismissal where an employee terminates the employment relationship, with or without notice, due to the employer making the continued working relationship intolerable. In other words, the employee is left with no alternative but to resign due to the employer’s conduct. There must be a clear link between the employer’s conduct and the circumstances that induced the employee to resign.  

In cases of constructive dismissal, the employee bears the onus to prove the existence of the constructive dismissal, and it will be determined on an objective basis. 

Examples of instances that could give rise to a successful claim of constructive dismissal include persistent late or non-payment of remuneration and failure to address serious internal grievances such as workplace bullying or sexual harassment.

While an employee is afforded rights, benefits and protection under South Africa’s employment legislation (BCEA, LRA, EEA and UIF), independent contractors are not protected by this legislation and must instead rely on the terms of the commercial contracts with their clients and the civil courts. 

Distinguishing between the two types of relationships is not only important to ensure the parties know their respective rights and obligations, but also to manage business risk. To assist herewith, section 83A of the BCEA and section 200A of the LRA contain deeming provisions which apply to individuals earning below the BCEA earnings threshold.  

Factors that distinguish an employee from an independent contractor are:

  •  the degree of supervision and control to which they are subject;  
  • the basis for payment i.e. are they paid on the production of a result or for making their productive capacity available; 
  • whether the individual is provided with tools of the trade or whether they need their own tools to render the service; and 
  • whether the individual derives income from a single source or from multiple sources.  

It is important to bear in mind that SARS and our labour courts apply slightly different criteria for determining whether someone is an employee and whether their income is subject to PAYE deductions. 

For these and other employment and labour law-related questions, please read more on our website or contact one of our panel experts to assist.

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