Labour Law Tough for Employment Agencies / Labour Brokers
LABOUR LAW TOUGH FOR EMPLOYMENT AGENCIES/LABOUR BROKERS
BY lvan lsraelstam, CEO of Labour Law Management Consulting. He may be contacted on (011) 888-7944, 082-852-2973 or
Employment agencies and labour brokers often pay a very high price for taking over the labour law risks of their clients. This is because:
ü Agencies and brokers are often at the mercy of their business clients who may mistreat the TES staff and thus incur legal liabilities for the TES;
ü Many agencies and brokers do not know how to protect themselves from the legal liabilities imposed on them due to their client’s actions.
A case in point is that of Labuschagne vs WP Construction. In that case the employee was hired by WP Construction, a labour broker and assigned to work at Setraal Wes, a client of the labour broker. The foreman of Sentraal Wes caught Labuschagne sleeping and terminated his assignment. Labuschagne referred an unfair dismissal claim to the CCMA.
. In its defence the labour broker claimed that:
ü Labuschagne was not its employee at all because he was an independent contractor who had no labour law rights;
ü In view of the fact that Labuschagne was an independent contractor they did not know that a disciplinary hearing was necessary;
ü Labuschagne had been caught sleeping on the job previously.
Despite these defences the CCMA arbitrator found that:
ü Labuschagne was an employee and not an independent contractor ;
ü Despite the fact that the employee had been caught sleeping twice, the absence of a disciplinary hearing rendered the dismissal unfair.
The labour broker, who had not been involved in the dismissal, was therefore forced to pay the employee compensation for the dismissal.
Brokers and agencies can avoid these legal traps by using labour law experts to ensure that their employees are hired, disciplined and/or dismissed via legally sound and effective contracts, strategies and procedures.