I remember being perturbed when all the literature at the Department of Labour was changed in 1995 to exclusively inform employees of their rights. This would now be to give effect to the provisions of the Constitution of the Republic of South Africa where all the rights are enshrined.
Section 9 (1) of the Bill of Rights contained in the constitution of South Africa says: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Section 9 (2) provides that “Equality includes the full and equal enjoyment of all rights and freedoms. Section 23 (1) of the constitution provides that “everyone has the right to fair labour practices”.
One would expect employers to have a few rights as well, after all, they create work, support families, educate and train their workforce, pay various taxes, contributes to the economy, spreads wealth, takes risks and add value in terms of the capitalist model.
The Supreme Court of Appeal however believes that everyone basically means only employees. Thus protection for unfair labour practices are reserved for the use of employees only.
Regrettably this leaves the rights-scale on the employer side is pretty empty.
Here is some I managed to dredge up:
– An employer has the right to lock-out employees, provided the relevant procedure was followed.
– May protect its assets.
– May decide what to do businesswise, where to do it and how to do it.
For the rest the employer carries the onus at the CCMA to prove dismissals were fair and is duty bound to ensure the workers gets to exercise all their rights. Not a sound model for productivity and reward for effort.
Perhaps it is time for the courts to balance the vulnerability of the employees with the value the employers contribute. This whole exploitation-of-the-worker-myth needs to be squared off. For once and for all.