Employees who sue
By Charl du Plessis
Labour legislation that focuses on protecting the rights of employees is making it increasingly difficult for employers to dismiss “non-performing” staff members. The only way employers can protect themselves is through the contract of employment they sign with the employee.
The IT industry is particularly subject to ongoing and rapid change, which means that now, more than ever before, the onus is on the employer to ensure that the employee fully understands and agrees with the performance deliverables expected. This is done through a contract of employment and a separate agreement that outlines key performance areas and indicators (KPAs and KPIs). The employer and employee must sign both documents.
Avoid the use of standard employment contracts. The IT industry is a high-spec environment and it is particularly unwise to group the data capturer’s job description, for example, with that of the programme developer. Additionally, it is not advisable to include the KPA and KPI agreement in the employment contract. Because the IT industry changes so rapidly it is preferable to draw up a separate agreement that can be checked regularly to ensure that the expected deliverables are still applicable to the employee and if not, updated accordingly.
An employee who feels he has been unfairly treated will almost certainly seek legal advice. Should his legal counsel inform him of even the smallest chance of winning his case, rest assured that he will start a course of legal action that begins with the Commission for Conciliation, Mediation and Arbitration (CCMA).
Companies that have dealt with the CCMA know that it is a lengthy and time-consuming process, not to mention potentially expensive. Besides the legal fees that are incurred, a management member has to spend time away from the business, which can damage productivity levels and, in turn, profitability. To avoid this, most companies will opt to settle out of court, even if they know their employee’s case is not that strong.
Ironically, labour legislation is the easiest to comply with, yet a large majority of companies fail to follow the basics and leave themselves open to litigation. Consequently, employers must take care to draw up employment contracts that square the playing field between themselves and their employees, without placing the employee at a disadvantage. The employee may then think twice before consulting a lawyer.
Charl du Plessis is managing director of IT Obligation Management (ITOMS). He can be contacted on +27 (12) 662 2606, by cell on 082 651 8421, and by e-mail on mailto:firstname.lastname@example.org