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Legal Opinion

Is the labour law reasonable?

HR professionals grapple with the legal term 'reasonable' because when defining this concept, dictionaries use terms that also need to be defined, making it difficult to reach a universal understanding. The concept of reasonableness has a strong subjective element. For instance, if you're pressing for a salary increase then a raise of 50% might seem reasonable to you if you've been earning less than other people doing similar jobs. However, if your employer is short of cash and doesn't want to set a precedent of giving 50% increases then a demand for a 50% increase wouldn't be reasonable to him.


What is a ‘cross-examination’?

The Labour Relations Act (LRA) doesn't deal with the employee's right to cross-examine. In addition, it doesn't prescribe the extent to which the employee can move away from the subject matter of the hearing. However, the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitrators, as well as Labour Court judges, insist that employees are given the right to cross-examine the complainant's witnesses. This is because such cross-examination is the democratic right of anyone accused in any formal process. Interfering with this right - without sound reason - is likely to land the employer in serious trouble.


Con-arb process plagues HR practitioners

Because of the need to speed up the resolution of labour disputes, the Labour Relations Act (LRA) provides for a 'short-cut' process called 'con-arb', which stands for 'conciliation-arbitration'. 'Conciliation' is the process in which the CCMA or bargaining council (BC) mediator tries to assist the employer and employee to reach an out-of-court agreement. It's a peace-making exercise that's intended to end in a settlement agreement and not in a judgement award.


Fair is fair: or is it?

The crucial labour law term 'unfair' is extremely difficult for employers and employees. As the term is not defined in any of the statutes parties tend to interpret the concept in a way that suits their needs and legal position. The act of an employer would be seen in labour law to be 'unfair' if it infringes the employee's rights, is one-sided, unnecessary and/or inappropriate under the circumstances. To develop an understanding of what this means in practice, this article will look at some actual cases where the CCMA, bargaining councils and the courts have interpreted the term 'unfair'.


Employers victimised by confusing legal terms

Uncertainty about the meaning of legislation can lead to industrial disputes and confusion among employers about what their labour law rights and obligations are. One term's meaning - that causes wide-scale confusion - is 'victimisation'. 'Victimisation' can be defined as 'targeted mistreatment carried out for a specific reason'. An example of this is when an employer overloads a single employee with work to force him or her to resign. Case law expands on the meaning of victimisation.