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If you have any ambitions to grow your small or medium-size business into a bigger enterprise, you might need to grow your team. People are the lifeblood of your business. Your staff are often the face of the business and what will keep you motivated, but your human resources can also be a source of risk and worries. As much as they all have to be respected and treated as individuals, they are also each a legal entity entitled to rights according to the constitution and labour laws. It is important to understand the regulatory framework that comes with each new appointment.

Here are some basics:

Dismissals: Worker’s rights in South Africa

The high level of unemployment in our country and the recent economic depression has put worker’s rights under a spotlight. We as a concerned society, and our judiciary system as an executive wing of governance, are sensitised to the plight of workers who lose their jobs and its consequences. It means that employers should be extra cautious when it comes to dismissals and retrenchments. These can be a regulatory minefield, not only in terms of procedure, but also in principle.
For instance, the LRA (Labour Relations Act) specifically Section 189 focuses on finding ways of avoiding retrenchment and ensuring that the adverse effects of a dismissal are mitigated as far as possible.
The procedures one has to follow when dismissing someone are rigorous and specific. Failure to comply with even a simple written warning, for instance, might make the dismal ‘unfair’ or unlawful.
While the thought of getting rid of a troublesome employee who disrupts production and team dynamics might be attractive in theory, it could be a regulatory minefield that costs you more in litigation than it saves you in wages.
Do it properly; calmly, compassionately and with legal assistance.

An employment contract is essential, but not sufficient

Before you agree to pay someone a regular fee for regular work of any kind in the service of your business, you would be well advised to set the terms out clearly on paper. Formal employment contracts will stipulate the hours a person has to work, give an outline of the type of duties expected and what the remuneration structure is.
This contract can be drawn up by yourself using templates from the internet or drawn up by professional legal services, but it will go a long way in protecting both parties from unnecessary disputes and confusion.
Think it through thoroughly and clearly before you sign anything. That will be your first step to starting out your human resources journey properly.
Next, do some legwork. Read the Labour Relations Act and the Basic Conditions of employment Act. It affords both parties rights and conditions that might override the actual contract that you signed.
Outside of the employment contract (or despite it) employees have rights arising out of common law, case law and the constitution. These include:

• Not to be unfairly dismissed;
• To be treated with dignity and respect;
• To have safe working conditions;
• To non-victimisation in claiming rights and procedures.

These type of rights are not as easy to pin down in a basic employment contract and are open to interpretation – and litigation.

The Basic Condition of Employment Act (BCEA) also affords workers the right to join a trade union and makes provision for employees to refuse to comply with an instruction contrary to the BCEA

They are also allowed to discuss their conditions of employment and benefits with fellow employees, their family or anyone else.

Do your homework. Get professional legal help.

 

Permanent staff or contractors?

Just because you consider someone a permanent staff, or alternatively a contractor, does not mean the law will agree with you. Outside of an employment contract, the LRA might consider a part-time worker an ‘employee’ entitled to all the rights ascribed to ‘full-time’ employees. Conditions under which that might occur include:

• The person has worked for at least 40 hours per month over the last three months;
• The person is economically dependent on the other party for whom they render services;
• The person forms part of the organisation.
• A good rule of thumb is to treat every single person you interact with on a human resources level as an employee, with all the necessary cautions and precautions.
• Ask your lawyer to guide you in this regard.

 

Vicarious Liability

This is an aspect of common law that smaller business owners should be aware of. It means that the employer is held responsible for the actions and omissions of the employee committed during the course and scope of their employment.
An example of this could be that a construction worker damages the property of a homeowner while doing renovations, you as the employer will be held to the client vicariously reliable for any loss or damages suffered.

 

Keep your head in the clouds but your feet in the Legal department

Growing your team as a smaller business will be one of the most rewarding aspects of your success, as well as one of the most challenging. Spend as much time developing your knowledge and preparation for this legal reality as you would spending on solving supply problems, billings or coming up with better product solutions or performance incentives.
Important: Don’t be discouraged by potential pitfalls. Enjoy your people, enjoy the trip. Remember, Bill Gates, Elon Musk had to go through a similar journey.
Make hope part of your strategy. But make professional legal services part of the action plan.

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