Areas of Practice
Labour & Employment Law
The workforce is usually a company’s greatest asset and expense and it is vital that your company be able to manage discipline and performance to ensure the sustainability of the asset for the benefit of the company. It is also important that you are able to adjust to changes in the external environment, such as the changes brought about by Covid-19.
We are available to assist you with your labour requirements, including, but not limited to:
- Employment contracts.
Although fixed term contracts can be an attractive option for an employer, they have limitations when the employee earns below the threshold set in terms of the Basic Conditions of Employment Act 75 of 1997. We are available to assess your needs, provide advice and draft the contract most suitable to your requirements.
- Policies and compliance
In order to set the standards and boundaries expected of your employees, it is important to have policies in place that guide your employees and to which you can hold them to account. The risk of not being aware of or not knowing how to properly comply with the law applicable to your business, labour law, the Compensation Fund, the Unemployment Insurance Fund and the South African Revenue Service can be detrimental to your business operations and it is vital that you have the right partner.
- Misconduct / Poor work performance / Incapacity / Retrenchment
Although many employers have justifiable reason for the dismissal of an employee due to their misconduct, poor work performance, incapacity or because of the operational reasons of the company, the failure to follow a fair process often results in the employer losing a matter that is referred to the CCMA or bargaining council.
- Labour litigation
No matter how diligent you are as an employer, you may find yourself having to bargain with unions and to having to defend yourself from unfair labour practice and unfair dismissal claims. Whilst having the correct policies, procedures and processes in place will assist you in defending yourself from such claims, you need the right litigation partner to protect your interests when this time comes.
Unfair dismissal
An unfair dismissal dispute must be referred to the bargaining council, or, if there is no bargaining council in your industry, to the CCMA, within 30 days of the date of your dismissal, and, if unresolved at conciliation to the bargaining council/CCMA or Labour Court, depending on the matter, within 90 days thereafter. Having the knowledge and experience of an attorney to assist you in such proceedings can be the difference between success and failure and whether the desired remedy is achieved.
A dismissal may be either:
- Automatically unfair. A dismissal may be found to be automatically unfair if it relates to strike action, a refusal to accept a demand in respect of a matter of mutual interest, the exercise of a right or participation in proceedings envisaged by the Labour Relations Act, pregnancy, unfair discrimination, a transfer or a protected disclosure; or
- Not automatically unfair. Such a dismissal may be found to be unfair if the employer fails to prove that:
2.1 the reason for the dismissal is fair and relates to the employees conduct or capacity or is based on the operational requirements of the employer; and
2.2 the dismissal was effected in accordance with a fair procedure.
Whether or not the employer had a fair reason and followed a fair procedure before dismissing an employee in the case of dismissals that are not automatically unfair make up the majority of unfair dismissal disputes, with matters relating to an employees alleged misconduct making up the overall majority of all disputes.
Should it be found that the dismissal was unfair, the arbitrator or Labour Court may order re-instatement, re-employment and/or compensation. Compensation is limited to a maximum of 12 months in respect of dismissals that are not automatically unfair and 24 months in respect of those that are found to be automatically unfair.
Unfair Labour Practices & Discrimination
Unfair labour practices
In terms of Section 186(2) of the Labour Relations Act 66 of 1995, an unfair labour practice means:
any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation…or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
Although the Act defines the act or omission that may be found to be an unfair labour practice, should the employer have committed a labour practice outside of the listed grounds, the employee may have recourse to a civil court in terms of the Constitution or the common law or in the case of employees of the State, the Labour Court.
An unfair labour practice must be referred to the bargaining council having jurisdiction or, if none, to the CCMA for conciliation within 90 days of the act or omission giving rise to the unfair labour practice. Should the matter not be resolved at conciliation and proceed to arbitration, the arbitrator may order reinstatement, re-employment or compensation limited to 12 months remuneration.
Unfair Discrimination
The Employment Equity Act 55 of 1998 places on obligation on an employer to “promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice” and contains a prohibition on unfair discrimination. Unfair discrimination may be on race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any arbitrary ground.
An employer may be able to rebut the presumption of unfair discrimination in terms of Section 6(2) of the Act by proving that the discrimination was as part of affirmative action measures or it was necessary on the basis of the inherent requirements of the job.
A claim of unfair discrimination must be referred to the CCMA within 6 months of the act or omission complained of and if it is not resolved at conciliation it must be referred to the Labour Court within 90 days, who may award compensation or damages and may make directions to the employer to avoid the recurrence.