January and the start of a new year find people enthusiastic, motivated and ready to hit the ground running. People are encouraged as the new year brings a feeling of a fresh start, the turning of a new page and the feeling of “new year, new me”.

It is the perfect time to discuss what happens when the excitement and the positivity of the new year wear off and the employee-employer relationship becomes strained.

When your number one performing staff member goes from excelling to “it’s not in my job description”. When your manager takes matters into his/her own hands and puts the company in a vulnerable position by failing to consider the Occupational Health and Safety Act or the Basic Conditions of Employment Act.

It is critical that both the business owner and his/her management team, as well as the staff, understand their respective rights and duties within their role. These rights are often not known or understood and can cause the relationship between the parties to become strained and tested at times of disagreement and frustration.

Employee/ Staff Duties:

• To render his/her agreed services to the Employer.
• To maintain reasonable efficiency and competencies for the duration of employment.

(This means from January to December and not just when the staff member feels motivated or positive)

• To obey lawful and reasonable instructions.

(This means that even if it is not within the staff member’s official job description, he/she can be instructed to perform other duties provided it is reasonable and lawful)

• To further the Employer’s interest and act in good faith
• To refrain from misconduct generally

(This means that the staff member should comply with company policy and procedures & the disciplinary code at all times).

The Rights of the Employee/ Staff

• To refer a matter to a trade union or labour inspector concerning any alleged failure or refusal by the Employer to comply with the Basic Conditions of Employment Act.
• To discuss their working conditions with their Employer and others

(Staff must be careful they do not breach confidentiality clauses which may appear within their employment contract when talking about their employment with others).

• To refuse to comply with an instruction which is unlawful or unreasonable.

(The staff member can say no or refuse to comply with instruction if the instruction given to him/her is illegal or is unreasonable.  For example, the manager cannot instruct a staff member to give him a foot massage).

• To inspect any record kept in terms of the Basic Conditions of Employment Act that relates to his/her employment.
• To participate in proceedings in terms of the Basic Conditions of Employment Act.
• Request a trade union or labour inspector to inspect a record in terms of the Basic Conditions of Employment Act that relates to his/her employment.

Employer Duties

• To receive an employee into service.
• To remunerate the employee.
• To provide safe & secure working conditions.

(Refer to the Occupational Health and Safety Act)

• To remain fair and just within all conduct towards the Employee.

(Under the Constitution of South Africa every employee has the right to fair labour practices and therefore employers have the duty to ensure that employees are treated in a fair manner that answers to substantial [reason] and procedural [process] fairness in all conduct.)

Employer Rights

• To manage the business and its environment
• To control the employment; recruit, promote, transfer, increase/decrease wages, approve or decline leave.

(Note: the reduction of a salary or demotion cannot happen without the Employer following the prescribed procedure(s) as laid out in the Labour Relations Act.)

• To direct access to the employee
• To maintain efficiency

(From January – December and not just as and when the workforce feels motivated and positive.)

• To further the company’s business interests
• To expect the employees to comply with all lawful, fair and reasonable instructions
• To maintain discipline
• To a lock-out

Section 9 (1) of the Final Constitution of South Africa states that “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“.

Business owners and managers if you are uncertain as to what constitutes fair and unfair labour practices read our other blogs and contact us for more information.

References:

Labour Relations Act 66 of 1995
Basic Conditions of Employment Act 75 of 1997
Employment Equity Act 55 of 1998
The Occupational Health & Safety Act 85 of 1993