I have been actively involved with HR matters for more than 12 years +, have been active in the various Unions, even did work for CCMA and I know that Employers will claim this but in the end it is not true. The Labour Laws within South Africa does not hampers employment at all, it rather stimulate job creation. I believe, have written reports on this that the current Labour Laws within South Africa creates an environment of fairness. Were Substantial and Procedurial Fairness creates an equal field for the protection of both parties.
The Skills Development Act has given opportunities to Employers to actually "make money" to train the employee. The Act has given opportunities to uprising and current establish Training Providers to florish within the Employment Environment. Through the Skills Development Levy Act training has become a commodity.
It is easy : Fairness within the Workplace will produce results, a fair and just system does deliver the goods on the table. Unfairness creates an environment of poor perfomances, where the Employer wants to "divide and rule" obviously he will sit with a labour force acting out as during Apartheid. The LRA and the BCEA is enhancing employment opportunities. It is fair and just to both parties.
With Retrenchment procedures needs to be follow, either a smme or a corporate and when procedures is correct and the reasons behind, no extra costs will be wasted.
I believe in our Labour Acts and only feel that when it is applied in the correctness of the written word, then you will create a friendly, productive environment - I believe that strongly and therefore my motto of "Team work and working togther" for better lives for all.
Our labour law probably hampers small businesses more than medium to large. But even there, labour lawyers tend to complicate matters by advising more complex procedures for disciplinary matters than are required by law.
I agree with your assessment of 189A.
But you are asking about job creation. The only problem is with the use of flexible labour, which is under the spotlight still. It could be used more freely to allow at least some measure of job creation. But as long as unions insist on meaningful (by which they seem to mean permanent) work or none at all we will be nervous of employing new staff in a start up; rather use existing employees as much as possible. Of course, flexible labour has been abused so much, unfortunately, that we have brought the reaction upon ourselves.
The problem I have found is not with the law, but with Managers' unwillingness to do the necessary work. They would prefer to fire at will, rather than investigate, discuss and counsel or discipline. The problem with that is that we would end up firing anyone who is different (creative) and only hire people we get on with (in other words, who are the same us we are).
I tend to agree with you particularly in terms of Section 189A. If companies would learn to adhere to their own policies and procedures they would have no problem in complying with the laws. This however is where so many fail and they are then surprised when the law is enforced and they lose. After 33 years in South Africa, like you I have hired and fired many and am proud to say I have never set foot in the CCMA nor do I intend to. Companies must make sure their policies and procedures comply with the law and most importantly that their managers comply with and enforce them equitably.
When we talk about firing employees, Des, we don't mean you shoot them!
Is that how you have kept out of the CCMA? :)
Most fired employees (unless shot) will take you to the CCMA because it's free and (for the employee) relatively painless. And who knows? I might get compensation.
So staying out of the CCMA isn't too important; it's making sure you win what cases do end up there. For that, you're right, adhere to your own policies (and use common sense) and you should have few problems.
Hi Des & Ian, I have been to the CCMA a number of times and had one person re-instated in the 90's. I remember it well, I had followed the new legislation and code of good practice on dismissal. But the Commissioner wanted to see my "code", which was no longer required. It seems that the CCMA now do accept the code of good practice as the requirement, not the unnecessarily complex procedures and old "criminal" terminology of "charges", "guilty", etc., which are not required by the code of good practice. One creating jobs, surely small business are not unionised, and they can make use of the probationary period, and fixed term contracts for specific projects/orders/workload. Are companies using those options?
CCMA is not considering mostly the expirience of the companies in their field and that is pulling down a lot of freshly established companies. My friend had a small business in my home town and he had about 5 employees,During the time when the business was not doing well he decided to ask two employees to stay home for a while until things get well.Only to find out that after that those people went to CCMA and sad they were fired for no reason.Proper planning is so vital especially in Business but some of the things get off hand,he didn't think the business was gonna go down during that period yet he tried.The decision from CCMA was that he had to put back those people to their positions and backpay they for all the days they didn't work.Now the company is nomore there. Yes;my friend could have been wrong but only had less than two years experience,now I believe that CCMA should have considered that.