Why it is Important to Get Expert Labour Law Advice Regarding Employment Disputes
Disputes over wages, allowable work hours, minimum notice periods, employment contracts, and more can often be resolved or even avoided without having to go to Court, the CCMA or a relevant bargaining council if the parties seek expert labour law advice on the issues at hand.
The problem is that an employee often does not want to take matters to the CCMA or a bargaining council out of fear of retaliation by the employer, such as not giving a letter of service or simply finding a way to make work life unbearable. The employee may also not know which disputes should be referred to the CCMA, which to a bargaining council and which issues must be brought to the attention of the Department of Labour.
Seeking expert labour law advice should always be the first step in trying to resolve any such issues. Though the labour attorney will not represent the employee at the CCMA or the bargaining council, the attorney is able to advise the employee about the necessary steps, rights, and the merits of a case. The attorney provides expert labour law advice regarding complex situations involving various issues. In addition, the attorney is able to litigate on behalf of the employee should court proceedings be necessary.
Below is an example of how a dispute can seem complex at first, but having an attorney review the situation and provide expert labour law advice can help the employee take the correct actions.
The employee resigned because it became apparent that the employer was not planning to pay her commission and was stealing commission from her. However, she did not state in her resignation that she resigned because of it. She did state other reasons for which she was resigning, such as not being paid overtime, 12-hour shifts six days a week, not getting lunch, not having transport late night to her home which the employer promised, being ill-treated by the employer, not being allowed to see her sales figures to determine whether commission will be correctly calculated, not receiving minimum wage for the particular sector, and more.
She submitted a valid resignation, but she only gave a 24-hour notice instead of a minimum of one week as required by the Basic Conditions of Employment Act. She believed she had the right to do so since she had worked at the employer for less than a month and the employer failed to give her an employment contract or any written particulars of employment.
The employer did not pay out her commission and promised to do so at the end of the month. However, on the due date he still failed and then stated that he had rights too. She had not worked a week notice and as such, he believed that he did not have to pay her the commission and did not have to give her a letter of service.”
Had the employee sought expert labour law advice before she resigned she would have given the week notice period required and the employer would not have reason to withhold her money.
However, her resignation was valid, and the employer could not withhold her letter of service and commissions. The employer must have taken legal steps to sue her for damages for breach of contract. Before the employer could do so, he had to pay the commission. He must also have paid the minimum wage since the law provides that if the commission is less than the minimum wage then minimum wage applies. He could not, for any reason, withhold the letter of service.
What is the employee to do? Should she go to the bargaining council because the employer believed he was excluded from the minimum wage for the hospitality sector since his company was not registered as an employer with the bargaining council?
If the employee sought expert labour law advice, the attorneys would have informed her that the bargaining council regulations are applicable to all employers in the particular sector and that by law the employer must have registered with the bargaining council. The minimum wage for the food and hospitality industry thus applies also to the employer.
Seeking expert labour law advice on all aspects of employment and disputes should thus be a priority rather than a last resort in any type of employment or labour dispute. The above is just a fictional scenario, but any such situations are normally complex at first and it is thus best to get expert labour law advice regarding the requirements of the law and employment relations.
Call us at 011 234 2125 to help you resolve any wage, labour or dismissal dispute in South Africa.
Disclaimer: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information. Information is relevant to the date of publishing – February 2018.