Labour Law
As specialists in labour law, we are available to assist both employers and employees with any issues that may arise in the workplace. We also have extensive experience in acting for trade unions and employers alike. With almost two decades of experience in Labour Law we are qualified to help you resolve any employment law issue that you may encounter, quickly and efficiently and cost effectively.
Services Offered
We offer specialised and practical legal advice on every sphere of Labour Law, including:
- Unfair dismissal disputes
- Unfair labour practices
- Sexual harassment matters
- Transfer of business as a going concern
- Retrenchments, restructuring and organisational development
- Acting for the employer at disciplinary hearings
- Representing employees in internal grievance and/or disciplinary enquiries
- Chairing disciplinary hearings
- Drafting notices to attend a disciplinary hearing
- Representing employees at incapacity hearings
- Legal representation at the CCMA, bargaining councils, the Labour Court, and the Labour Appeal Court
- In-house training and facilitation on all aspects of employment law including, but not limited to, the Basic Conditions of Employment Act, the Labour Relations Act and the Employment Equity Act
- Drafting employment contracts, restraints of trade and disciplinary codes
Dismissal
Dismissal occurs where the employer terminates the employee’s services, either immediately or with notice.
Every employee has the right not to be unfairly dismissed and therefore the employer is obliged to ensure that any dismissal is substantively and procedurally fair. The term “substantively fair” refers to whether the employer had a fair reason to dismiss the employee. The term “procedurally fair” refers to whether the employer followed a fair procedure in dismissing the employee.
Generally speaking, the Labour Relations Act and the Labour Courts recognise the following reasons for which an employer can dismiss an employee: misconduct, medical incapacity, poor work performance and incompatibility.
Misconduct refers to where the employee committed some or other act which “offends” his employer. Examples of misconduct are insubordination (i.e. the refusal to comply with a reasonable and lawful instruction from the employer), being late for work, and sexually harassing another employee. Normally the employer’s disciplinary code will contain a list of offences which are viewed as misconduct. However, it must be noted that just because something is not listed in the disciplinary code, does not mean that it does not constitute misconduct. For example, assaulting a fellow-employee or stealing from your employer obviously constitutes misconduct.
Poor work performance refers to the instance where the employee’s performance is not up to standard. An example is where a motor vehicle sales person fails to achieve his monthly sales target, yet his fellow-employees, having the same resources and same opportunities, are able to achieve the same target.
Incompatibility refers to those employees, many times in managerial positions, who simply cannot get along with their fellow-employees, often making the lives of the other employees miserable.
Normally, for a dismissal to be procedurally fair, the employer must notify the employee in writing of the allegations against him / her, the employee must be afforded a reasonable opportunity to prepare for the disciplinary hearing, and the disciplinary proceedings must be chaired by someone who can give an objective decision on whether the employee is guilty of the alleged misconduct and, if so, what the appropriate (fair) sanction is.
If an employee is dismissed for either misconduct, poor work performance or incompatibility, the employee may refer a dispute to the CCMA (or the relevant bargaining council) within 30 days of being dismissed, either seeking reinstatement or compensation.
Constructive Dismissal
Sometimes an employer makes an employee’s live at work “hell” (for example by continuously swearing and shouting at the employee or continuously belittling the employee) and eventually the employee resigns because he / she can no longer take it.
These instances are referred to as “constructive dismissal”, although the employer did not “dismiss” the employee. A constructive dismissal is nothing but a “forced resignation”. Under these circumstances, an employee may refer a dispute to the CCMA (or relevant bargaining council) and seek compensation from the employer.
Retrenchment
Retrenchment refers to the instances where an employer normally wants to reduce the size of his workforce due to poor economic circumstances.
As with all dismissals, a retrenchment must be substantively and procedurally fair. The Labour Relations Act stipulates what steps an employer must take if he contemplates the necessity of retrenching one or more employees. The employer must, inter alia, as soon as possible inform the employees of his contemplation of retrenchment and must have meaningful discussions with them, amongst others to see if their retrenchments can be avoided.
Note however that the Court will not tell the employer how to run its business. The employer may have made fatal mistakes in the past in conducting its business (for example expanding too fast), which now necessitates the employer taking drastic steps in order to save its business (or parts of its business). Provided that the employer complies with the provisions of the Labour Relations Act, the employer will be able to retrench staff and save its business.
Unfair Labour Practices
Employees can refer disputes about unfair dismissals, unfair retrenchments as well as unfair labour practices to the CCMA (or relevant bargaining council) for conciliation and arbitration.
The Labour Relations Act defines an unfair labour practice as:
- unfair conduct by the employer relating to promotion, demotion, probation or training or the provision of benefits;
- the unfair suspension (or other unfair disciplinary action short of dismissal) of an employee. Therefore, if an employer for example gives a written warning to the employee and the employee is of the opinion that the employer acted unfairly in giving him / her the written warning, the employee may refer an unfair labour practice dispute to the CCMA (or relevant bargaining council) in order for the latter to “strike out” the written warning – the employee will then once more have a clean disciplinary record;
- a failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement – this normally refers to the instance where an employer retrenched an employee and undertook that, if a suitable position became available within say 12 months of the retrenchment, the employer would offer that position to the employee, which the employer then failed to do; and
- when an employer prejudices an employee after he made a protected disclosure in terms of the Protected Disclosures Act 26 of 2000. That is, an employer prejudices (for example demotes) an employee for being a whistle blower.
An employee must refer an unfair labour practice dispute to the CCMA (or relevant bargaining council) within 90 days.
Automatically Unfair Dismissals
Automatically unfair dismissals refer to instances such as when an employer dismisses an employee:
- for participating in a lawfully protected strike;
- for being pregnant;
- as a result of unfair discrimination based on inter alia age, race or gender;
- after a business was transferred from one employer to another employer; and
- after he / she made a protected disclosure (i.e. blew the whistle).
If the Labour Court finds that an employer is guilty of an automatically unfair dismissal, the Court may grant the employee up to 24 months’ compensation (salary), whereas in the case of normal dismissals the maximum compensation is 12 months.
Labour Law Enquiry
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