Subjectivity, the thorn in fairness!

It is a given fact that, when faced with any situation, we tend to compare the reaction of people in any situation with our own reference framework. Our experience in life and in growing up become our default positions. A deeply rooted default position, regardless of being proven wrong, is the stubborn acceptance that people strive to operate from a platform of fairness. Great was my surprise, in dealing with a major national restructuring process, realising that employees, MISA members, who received a notice of retrenchment, were summarily taken off the rotation rosters at Dealership level despite the 60-day consultation ahead of them.

Rotation and Staggered Working Hours

The justification from many subjective employers are that they act in accordance with the Direction issued by the Minister of Labour. A Direction that inter alia direct that ‘Every employer must establish the following administrative measures, as far as practicable to minimize the number of workers at the workplace at any given time through rotation, staggered working hours, shift systems and remote working arrangements or similar measures.’

Once subjectivity enters the playing field employers decide who the ‘workers’ will be by minimizing the number of workers. A decision based on subjectivity and blatant unfair conduct, especially when employees are excluded purely on the fact that they might be dismissed for operational reasons. The operative word ‘might’ as the possibility of preventing the dismissal must be investigated during a period of consultation and exploring alternatives to possible dismissal.

Violation of the Right to Fair Labour Practices

The sad reality is that many employees who are healthy, are no risk to the workplace environment and able to render their service are prohibited from earning an income. Employees who received notice of retrenchment in this very insecure economical period, are forced to face, not only the possibility of losing their job at the end of the consultation period, but also the reality of no- to little income as a result of being taken off the rotation roster!

The actions of employers who are entrusted by huge businesses to oversee and manage their businesses are in direct violation of the Constitution of South Africa, which provides to everyone the right to fair labour practices!

Contractual Obligations

The employment relationship is governed by certain terms and conditions offered, and negotiated, prior and during employment. For instance, remuneration and working hours which are essential to a contract of employment. This notion was confirmed by the Labour Court in Northern Cape Provincial Administration/Commissioner Hambridge NO and another 1999 20 ILJ 1910 LC.

These terms and conditions cannot be changed unilaterally; it must be negotiated.  

An employer cannot unilaterally change the terms and conditions of your employment and hide behind the Minister of Labour’s direction to minimize the number of employees at the workplace. There must be a fair objective reason to exclude you from the work roster.

Challenge your Employer

You are entitled to a sound fair and objective reason from being excluded from the workplace. Ask for the reason and if there is no fair and objective reason, challenge the decision!

MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time:

Employer UIF/TERS Submissions                   UIFClaim@ms.org.za

Legal/Labour-related enquiries                     Legal@ms.org.za

*Legal Reception                                             0114763920

MISA Benefit claim-related enquiries           Claims@misa.org.za

Any other enquiries                                         Info@ms.org.za

Website                                                            www.misa.org.za

Mobile App                                                     https://onelink.to/w9a7ku

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