Labour Law

Most people don’t think about calling a labour attorney until they’re already in trouble. By then, a deadline has been missed, a document has been signed, or a hearing has gone badly. The reality of South African labour law is that it is highly procedural — and the side that understands those procedures almost always has the advantage. This article is not a services list. It is a guide to the specific situations — for both employees and employers — where getting a labour attorney involved makes a real difference to the outcome. What Does a Labour Attorney Actually Handle? A labour attorney specialises in the relationship between employers and employees. Their work sits across several pieces of legislation: the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), and the Employment Equity Act, among others. In practice, that means they handle dismissals, disciplinary processes, retrenchments, employment contract disputes, workplace discrimination claims, CCMA representation, and Labour Court proceedings. They advise both sides — employers and employees — and the right time to involve one is almost always earlier than most people think. When Employees Need a Labour Attorney You’ve Been Dismissed and Think It Was Unfair Unfair dismissal is one of the most common labour disputes in South Africa. The LRA requires that every dismissal must be both substantively fair (there must be a valid reason) and procedurally fair (the correct process must have been followed). If either element is missing, you may have grounds for a dispute. If you were dismissed for misconduct, incapacity, or operational requirements (retrenchment), a labour attorney can assess whether the dismissal meets the legal threshold. This matters because the compensation or reinstatement you may be entitled to depends entirely on how the case is framed and argued. The critical point: you have 30 days from the date of dismissal to refer an unfair dismissal dispute to the CCMA. Miss that window and you lose the right to pursue it without applying for condonation — which is not guaranteed. You’ve Been Called to a Disciplinary Hearing Many employees assume a disciplinary hearing is an internal HR formality. It is not. The outcome of a disciplinary hearing — which can result in dismissal — is the starting point for everything that follows. If the hearing is procedurally flawed, that can form the basis of a dispute. If you accept a finding without objection, you’ve made your subsequent CCMA case significantly harder. Attorneys are not permitted to represent you at an internal disciplinary hearing unless your employer consents. But consulting a labour attorney before the hearing — to understand the charges, prepare your response, and know your rights — can change the entire trajectory of the matter. This is where SB Lawyers’ labour team can step in before a situation becomes a formal dispute. A 30-minute consultation before a hearing is worth far more than damage control after. You’re Being Retrenched Retrenchment in South Africa is governed by Section 189 of the Labour Relations Act, which sets out strict consultation requirements. Your employer is not entitled to simply hand you a letter and call it done. They must consult with you (or your representative) in good faith, consider alternatives to retrenchment, and follow a fair selection process. If these steps are skipped or compressed, the retrenchment may be procedurally or substantively unfair. A labour attorney can review the process, advise you on whether the consultation has been properly conducted, and help you negotiate a fair severance package if the retrenchment proceeds. You’re Facing Discrimination or Harassment at Work Workplace discrimination on the basis of race, gender, pregnancy, disability, religion, or a range of other listed grounds is prohibited under both the LRA and the Employment Equity Act. So is sexual harassment. These matters are dealt with through the CCMA and, in more serious cases, the Labour Court. If you have raised a grievance internally and the situation has not been resolved — or if you have been victimised for raising a complaint — a labour attorney can help you take the matter forward formally. These cases require careful documentation from the start, and legal guidance at an early stage makes that process significantly more structured. Your Employer Has Changed Your Contract Without Your Consent Your employer cannot unilaterally change the terms of your employment. If your salary has been reduced, your job description fundamentally altered, or your benefits removed without your agreement, that may constitute a breach of contract — and in some circumstances, a constructive dismissal if you are forced to resign as a result. A labour attorney can advise you on whether the change crosses a legal line and what remedies are available, including referral to the CCMA or the Labour Court. When Employers Need a Labour Attorney Employer-side labour law is where procedural mistakes are most expensive. The cost of an unfair dismissal award, a reinstatement order, or a drawn-out CCMA process far exceeds the cost of getting the procedure right from the beginning. Before You Dismiss an Employee This is the single most important time to involve a labour attorney. Before you issue a dismissal, the process must be correct: notice of hearing, proper charges, a fair hearing, a finding, and — if dismissal follows — notification. Each step carries procedural requirements. If you dismiss an employee and the process is flawed, they can refer the matter to the CCMA. Even if the substantive reason for dismissal was valid, a procedurally unfair dismissal can result in a compensation award of up to 12 months’ salary. Getting legal advice before the process begins, not after, is the most cost-effective approach. When a Matter Is Referred to the CCMA If an employee has referred a dispute against your business to the CCMA, you need to understand what you are dealing with. Conciliation is the first step — it is informal and attorneys are not permitted to represent either party there, though an employer representative may attend. If conciliation fails, the matter proceeds

Labour lawyers protect the rights and interests of employers and employees. They ensure that issues like compliance, unfair labour practices, disciplinary hearings and labour disputes are handled professionally and lawfully. Labour law attorneys typically only get involved when these disputes escalate into formal proceedings. Understanding the legal processes that lawyers initiate or respond to in court, namely, applications and actions, helps employers and employees understand what to expect from their labour lawyer and how these procedures align with the Labour Relations Act and related court protocols in South Africa. The Role of Your Labour Lawyer in Court The South African labour court system can be daunting for anyone seeking legal assistance under South African labour law. Labour law involves assisting clients with various labour court litigation matters. Their presence ensures proper procedure and strategic legal argument. Court proceedings often require technical submissions, clear documentation, and an understanding of both employment contracts and collective labour matters involving trade unions or the bargaining council. The labour lawyer offering professional advice ensures these elements are managed in the client’s best interests. Applications vs Actions in Court In labour law, court processes generally follow two routes: application or action proceedings. What is an Application Proceeding in Court? Application proceedings are typically paper-based and rely on affidavits rather than oral testimony. This process is ideal when the facts presented in the case are not in dispute. Examples of application proceedings include: Review applications of arbitration awards Interdicts against unprotected strikes Enforcement of reinstatement orders Contempt of court proceedings These are governed by motion proceedings outlined in Rule 7 and Rule 7A of the Labour Court Rules and elaborated in the Labour Court Practice Manual in South Africa. When To Use Applications in Labour Law Labour lawyers often choose application proceedings for: Urgent applications, such as interdicts to prevent unlawful strikes Reviews of CCMA or Bargaining Council rulings Enforcement of awards or contractual terms Contempt applications for non-compliance with court orders These cases are faster and more cost-effective, making them a preferred option when possible. However, they must be used only when facts are uncontested, as disputes of fact may result in the application being referred for oral evidence or even dismissed. What Is an Action Proceeding in Court? Action proceedings, by contrast, involve factual disputes that require oral evidence. These are more formal and time-consuming. In labour disputes, action proceedings typically involve: Unfair dismissals Allegations of unfair labour practices Claims for damages arising from breach of employment contracts Action proceedings begin with a statement of claim and proceed to trial, where witnesses are cross-examined. These cases are filed under Rule 6, and must include a pre-trial conference, submission of a practice note, and preparation of document bundles as required by court practice. When Actions Are Necessary In disputes over misconduct or retrenchment processes, attorneys must initiate action proceedings. Action proceedings may include: Allegations of automatically unfair dismissal Disputes over selection criteria in retrenchment Disciplinary dismissals where oral testimony is necessary Labour attorneys assist by guiding clients through the complexities of trial preparation, from compiling bundles to cross-examining witnesses. What Clients Can Expect in the Labour Court Whether pursuing an application or action, clients can expect their labour attorneys to: File court documents in line with the format and timeline rules Represent them during roll calls, hearings, and trial proceedings Advise on settlement negotiations or dispute resolution alternatives Ensure compliance with the Labour Court Practice Manual In both types of proceedings, skilled representation by a specialist labour lawyer ensures that each step aligns with relevant labour laws and procedural fairness. Labour Court vs Labour Appeal Court In complex or precedent-setting matters, cases may proceed to the Labour Appeal Court, where previous judgments are reviewed. Labour law attorneys assist in filing for leave to appeal, preparing heads of argument, and ensuring the appeal is within labour law compliance with court rules. Choose the Right Labour Law Services Finding experienced lawyers with sound labour law advice and experience is crucial, especially when dealing with serious workplace disputes and enforcing employment laws in South Africa. The type of court proceeding – application or action – shapes the approach, cost, and outcome of a case. SB Lawyers’ Labour Law Legal Services: Representation in both application and action proceedings Guidance on drafting employment contracts and handling disciplinary procedures Support in conducting workplace investigations and advising on employment policies Clear, strategic legal guidance that protects both employer and employee interests SB Lawyers are experienced labour lawyers, offering you the clarity and confidence needed to move forward, whether you are an employer or an employee.  Our law firm is based in Pretoria and Nelspruit and also offers counsel remotely online. Speak to our team of labour law specialists today for legal representation that meets your needs and is in line with South African labour law.

The pandemic has fundamentally shifted how we conduct work in the country. Employers have seen how cost-effective and more straightforward remote work is. Many companies have continued to offer remote work long after the pandemic ceased. However, with the rise of a new work structure, problems followed, and policies around it were and still are vague. With a tightening local job market, more South Africans now work remotely for international companies, seeking stability and new prospects. These policies ensure that remote work arrangements comply with local labour laws, protect workers’ rights, and promote productivity and work-life balance. In this article, we’ll explore the role of remote work policies and their impact on businesses in South Africa. The Shift to Remote Work Remote work has grown significantly, particularly after the COVID-19 pandemic in South Africa. Although initially seen as a temporary solution, it has become a permanent fixture in many industries. Companies from all sorts of niches have embraced remote work. However, employers must implement the right remote work policy to support their workforce and comply with South African labour laws. Crafting a Remote Work Policy If your business has remote teams, having a clear remote work policy is a must. It helps you manage your team better and ensures you follow South African laws. A good remote work policy should cover these important areas: 1. Flexible Work Arrangements Remote work lets employees work from home or elsewhere, giving them more freedom. But you need to balance this flexibility with responsibility. Your policy should clearly state work hours, when employees must be available, and how to handle different time zones if your team is spread out. 2. Productivity In a remote setup, it’s not about how many hours someone works—it’s more about what they get done. Your policy should focus on setting clear goals and measuring results, not just time spent working. This builds trust and keeps employees productive, even when they’re not in the office. 3. Data Security When employees work remotely, keeping company data safe is super important. Your policy should explain what employees need to do to protect sensitive information. This includes using secure networks and encrypted tools and following South Africa’s data protection laws (POPIA). Make sure your team has the right tools to work safely. 4. Work-Life Balance Working from home can blur the line between work and personal life. Without clear rules, employees might work too much or feel they must always be available. Your policy should encourage employees to switch off after work hours and find a healthy balance between their job and personal life. By covering these areas, your remote work policy will help your team work effectively, stay secure, and maintain a good work-life balance. Legal Considerations for Remote Work in South Africa Remote work policies must follow South African labour laws. These laws protect employees’ rights, no matter where they work. Here are the rules that affect remote work: The Basic Conditions of Employment Act (BCEA) The BCEA sets the basic rules for employment contracts, working hours, leave, and other work conditions. Employers must ensure that remote workers’ rights are respected. The Employment Equity Act (EEA) The EEA ensures fairness at work. Employers must ensure that remote work policies don’t discriminate against employees based on their ability to work remotely. When creating these policies, it’s essential to consider the different needs of your team. Occupational Health and Safety (OHS) Employers are responsible for providing a safe work environment, even for remote workers. This includes helping employees set up ergonomic workspaces and giving them resources to avoid health issues like back pain. Employee Dismissal in a Remote Workplace Remote work has made employee dismissal tricky, to say the least. According to the Labour Law, all dismissals in an office or from home must be fair. Employers need to follow the correct steps, such as giving clear reasons and allowing employees to respond. Companies must also support their remote workers. This includes proper communication, regular performance reviews, and clear expectations to avoid unfair dismissals. Keeping records of emails, meetings, and any help given to the employee can protect businesses from legal problems. If a remote worker needs to be let go, proof of fair treatment is essential. Employees need to know their rights and responsibilities during the dismissal process. Working Overseas: Legal and Tax Implications for South Africans Expanding Opportunities and Challenges Many South Africans are seeking work opportunities with overseas companies. The global shift toward remote work has made it possible for South African professionals to work for foreign employers. However, doing so introduces a range of legal and tax considerations. Employee vs. Independent Contractor When working for an overseas company, your status as either an employee or an independent contractor will significantly impact your legal obligations: As an Employee: If a foreign company directly employs you, it’s essential to understand which jurisdiction’s labour laws apply.  While your employment contract may be governed by the laws of the employer’s country, as a South African tax resident, you must still comply with local income tax obligations. As an Independent Contractor: Many professionals prefer the freedom of working as independent contractors for companies abroad.  If you choose this route, you should register your business with the Companies and Intellectual Property Commission (CIPC) under the Companies Act or operate as a sole proprietor.  Each option has its own tax rules under the South African Income Tax Act, including rules for value-added tax (VAT) and advance tax payments. Tax Implications and Double Tax Agreements (DTAs) Regardless of your employment status, any income earned from overseas is generally considered part of your worldwide income if you are a tax resident in South Africa. To avoid the pitfalls of double taxation, be aware of any DTAs between South Africa and the country where your employer is based. These agreements can provide relief by ensuring you are not taxed twice on the same income. Navigating Legal Compliance If you work for a company in another country while living

South Africa has one of the most comprehensive labour laws in the world. It covers various aspects of employment, including minimum wages, working hours, leave entitlements, employee benefits, dispute resolution, and more.  South Africa’s labour laws safeguard workers’ rights, promote equal job prospects, and ensure just labour policies. Moreover, the country has a robust system of labour courts and tribunals, vital in enforcing these laws. Our labour law is something to be proud of, but it can be complicated to navigate in the workplace. Therefore, our article will summarise your legal rights as an employee. Know Your Contractual Rights The employment contract is paramount regarding labour law and an employee’s rights.  Although the law does not explicitly mandate employees to possess a written contract of employment, it is always preferable to do so for the following reasons: Understand Your Basic Conditions The Basic Conditions of Employment Act (BCEA) is a crucial piece of South African labour law legislation. It highlights the terms and conditions that should be contained in an employment contract.  Some critical parts of the Basic Conditions of Employment Act include: See the Basic Conditions of Employment here. Navigating Disputes and Litigations Disciplinary processes may become necessary when trust has been compromised in a working relationship. Employees must be aware of their rights to protect themselves during any litigation.  During a disciplinary hearing, an employee has the following rights: Approaching the CCMA In the event of an unfavourable outcome in a disciplinary hearing, employees possess the ability to move forward with the referral of disputes to the Commission for Conciliation Mediation and Arbitration (CCMA) The Labour Relations Act governs these disputes/rights, and we will also attempt to explain the most common disputes referred to the CCMA and an employee’s rights in terms of each dispute: Know Your Rights With SB Lawyers We have only touched on the topic of employee rights and their interaction with labour laws. Every case is unique and may overlap with the dispute category, emphasising its complexity. However, prevention is better than cure, and it is better to receive legal advice and better understand your fundamental rights now rather than when it is too late. Contact SB Lawyers to get the legal support you need. We are here to equip employees with advice and legal action to ensure their rights are upheld in the workplace.

The opinions and sentiments expressed in this blog about employee rights are the opinions and sentiments of this firm. They will not necessarily be supported or find favour with employers or, for that matter, representatives of employers – such as employer organisations. While it is commonly acknowledged that employees should be treated fairly and given a fair hearing during disciplinary proceedings, we believe that employee rights are often overlooked in the disciplinary process. The following are a few concerns to be raised when the issue of a fair disciplinary hearing is at stake: The Disciplinary Code The Labour Relations Act does not explicitly mandate employers to establish a Disciplinary Code in the workplace, although it is advisable to have one. If no written Disciplinary Code is in place, disciplinary hearings should be conducted according to Schedule 8 of the Labour Relations Act. This schedule does not have specific provisions but requires employers to conduct the hearing fairly, both in terms of procedural and substantive aspects. Even if an employer has established a Disciplinary Code, it cannot disregard the rules of natural justice when it comes to ensuring fairness. Perhaps the biggest concern with written Disciplinary Codes is that employers (more often than not) do not discuss or negotiate the terms and conditions of Disciplinary Codes with employees or employee representatives and, if so, also more often than not tend to disregard proposals advanced by employee representatives – on the employer’s claim that the Disciplinary Code is, in any event, standard and fair.  The Chairperson of a Disciplinary Hearing Disciplinary hearings require a chairperson who is perceived as skilled, objective, and non-biased. The employer, whether an internal or external person, often appoints the chairperson. However, being an external person does not guarantee that the appointed chairperson is skilled or objective. Unfortunately, no statistics are available with regard to findings of guilty vis-à-vis findings of not guilty on the basis of national statistics being kept of disciplinary hearings being held in the workplace. Even more so, no statistics are available on how many findings of guilt in the workplace are reversed in the CCMA or Bargaining Councils, adjudicating referrals based on unfair dismissals. It is our experience that findings of guilt far outweigh findings of not guilty in the workplace – often by chairpersons being either unskilled or biased in favour of the employer and disregarding the evidence of the employee. Pre-deceived Disciplinary Hearings It is, unfortunately, true that in some cases, employers may consult with chairpersons before a disciplinary hearing and influence them to pursue the dismissal of an employee, even if it is not warranted. This renders the hearing a mere façade and a cover-up.  Although not always the case, some employers may attempt to terminate the employment of an employee who has fallen out of favour with their superiors at all costs in an effort to save on future salary and legal fees that may arise if the matter is taken to the CCMA or a Bargaining Council. The unfair dismissal of an employee can really never count the cost and injury caused to an employee who has fallen victim to a pre-deceived disciplinary hearing. Unfortunately, labour law principles have not developed to the stage where an employee has a direct contribution to be made in who should be the chairperson of a disciplinary hearing. In the public sector, there has been limited move in this direction, but at this stage, it is negligible. The private sector remains unfriendly to any employee who may fall victim to an unskilled or biased chairperson.  The Unlevel Playgrounds Between Employer and Employee The unlevel playgrounds between employers and employees in disciplinary hearings is a further matter of concern. Employees are generally afforded the right to be represented during a disciplinary hearing. But what does this entail? This, more often than not, includes the right to be represented by a co-employee or a union representative. If this right is carefully dissected, the following appears: The Legal Team Medium to large employers often hire legally trained individuals to work in their legal or human resources departments. These employees may hold diplomas, law degrees, or even be admitted attorneys or advocates who choose not to practice independently. They prefer to work in the formal sector as legal or labour advisors. As a result, employers often have a team of legally skilled professionals, while employees may not. Although internal representatives may represent employers in disciplinary hearings, the employer’s team often has an advantage due to their legal expertise. Internal Representation   With regard to the internal representation of an employee by a co-employee, such a right is not worth the paper it is written on. In this regard, co-employees are simply not prepared to “stick out their necks” to represent another employee who is unfortunate enough to be the subject of a disciplinary hearing at the behest of the bosses. Even if a co-employee may be prepared to assist a co-employee, such a representative typically lacks the necessary skills to represent an employee with regard to the ability to interpret the charge sheet, raising special pleas, leading of evidence, the art of cross-examination and – most importantly – the ability to prepare and argue argument on what should be found on the merits – and what not. Union Representation Although union representation offers a degree of protection to an employee from being the subject of a disciplinary hearing, it must be remembered that not all employees are members of a union – and, if not, do not have the ability to appoint a union representative to represent the employee. Although it cannot be generalised, experience has further shown that some union representatives do not really match the skills of the employer brought to the disciplinary hearing, rendering this right often ineffective. So, what are the employee rights during disciplinary hearings, and how should these be enforced? In essence, employee rights with regard to disciplinary hearings are generally the rights to a fair procedure and for fairness to prevail

The dismissal process is a complex and sensitive issue affecting both employers and employees in South Africa. As the employment landscape changes, it’s essential for employers to understand their rights and responsibilities when dealing with termination. South Africa’s labour laws protect employees from unfair dismissal while also recognising the legitimate rights of employers to manage their workforce efficiently. Knowing the legal framework surrounding dismissal and the rights of employers is crucial for creating a positive and productive work environment. SB Lawyers is here to give you our expert rundown on all things dismissal and how best to navigate the various instances of it occurring in South Africa. Dismissals: An Overview In the times that we are living in and with the economic difficulties we are facing, the dismissal of employees is increasing, and for many, it is a reality. The question that arises most often is whether a dismissal is, in fact, fide (fair) or whether employers exploit the current economic climate to rid themselves of employees who, for some reason or another, have fallen into disfavour with an employer. An employer may, however, have valid reasons for dismissing an employee. The Need For Legal Intervention Employers often approach attorneys to assist with the dismissal process to ensure that a proper procedure is followed. A dismissal of an employee terminates the employment relationship, and the question that comes to mind is whether the dismissal was fair. What follows herein has a bearing on both the employee’s and employer’s rights in circumstances of dismissal. The Labour Relations Act recognises basically three grounds on which employment may be terminated, namely, due to the (mis)conduct of the employee, the capacity of the employee and the operational requirement of the employer’s business, as referred to herein later. The test to determine whether a dismissal is fair or unfair, notwithstanding the reason for the dismissal, is twofold. The first test to be applied is whether the employer followed a fair procedure in reaching the decision to dismiss. The second test is whether the dismissal of the employee was substantively fair – in other words, whether there were objective, fair reasons to dismiss. Types of Dismissal in South Africa In South Africa, dismissals can be categorised as fair and unfair. This section explores these dismissal types, providing employers with essential insights into the legal complexities of each. Fair vs. Unfair Dismissals When considering the reason for the dismissal and whether it was fair, consideration must be given to the grounds upon which the employment relationship can/may be terminated by the employer, as per the provisions of sections 187 and 188 of the Labour Relations Act. Automatically Unfair Dismissals The dismissal is automatically unfair if it falls within the categories listed in section 187(1) of the Labour Relations Act: Dismissal Based On Misconduct Misconduct can take on many forms, but in essence, “misconduct” occurs when an employee commits a breach of a material term of their contract of employment or of a rule – which rule does not necessarily have to be stated in the employment contract, but came deemed/accepted as a rule that finds general application in the workplace. No specific procedure is prescribed save for a fair disciplinary procedure to precede the dismissal of an employee. The rules of natural justice apply as to what constitutes a fair procedure, including but not limited to whether the employee was granted the opportunity to state their defence against the charge(s) brought against the employee. In determining the substantive fairness, i.e. the reason for the dismissal, consideration must be given to article 7 of Schedule 8 of the Act, namely the Code of Good Practice: Dismissal, which sets out the questions to be considered in determining whether the dismissal based on misconduct, was fair. The provisions of Schedule 8 apply to both employers and employees in determining whether a dismissal is fair. Dismissal Based On Incapacity When the working capacity of an employee is in question, it may refer to a physical disability, rendering it impossible for the employee to render further work to the employer, or a mental/intellectual disability, which also may render it impossible for the employee to render additional services to the employer. As in the case of misconduct, no specific procedure is set out in the Act. The Code of Good Practice Dismissal, however, sets different standards and different procedures to be followed by an employer dismissing an employee based on incapacity. In circumstances of poor work performance, the employer must prove that: Suppose an employee is dismissed under circumstances where it was alleged that the employee was incapacitated to render further services to the employer. Still, it is found that the employer failed its obligations towards the employee. In that case, it may render the dismissal unfair. Similarly, providing the employee with assistance, as referred to above, is necessary before embarking upon the dismissal of an employee. It may be easier for an employer to dismiss an employee when the facts clearly point towards a physical disability or a mental disease, rendering further employment impossible. A more difficult situation arises where the employer alleges that the employee is incompatible with the work environment required for the effective operations of the employer. Incompatibility may have many forms, including but not limited to an employee who, due to a different upbringing and culture, does not fit within the general culture of the employer, causing disruption in the effective operations of the employer. Employers, therefore, need to tread carefully when dismissing an employee on grounds of incompatibility. On the other hand, employees must also tread carefully by not allowing their background, culture, upbringing, and personal beliefs to disrupt the employer’s operations. Dismissals Due To Incapacity: Specific Cases In circumstances of incapacity due to ill health or impairment, which arose during the scope of the employee’s employment, the following considerations apply: Whatever the reason for an employer to allege an employee’s incapacity, it must be seen that a fair procedure in determining the alleged inability (which

Retrenchment is a term used in the context of business and employment. It refers to the process of reducing or downsizing a company’s workforce to cut costs and improve financial stability.  It typically involves laying off employees or terminating them for various reasons, such as economic downturns, restructuring, mergers, or the need to streamline operations. What is the Difference Between Retrenchment and Dismissal? Retrenchments and dismissal differ based on misconduct or incapacity/incompatibility. Retrenchments should be distinguished from dismissals where the reason originates from an act or omission or conduct of an employee. The initiative for retrenchment can only arise from the employer and not the employee. This is not the position for dismissals based on misconduct or incapacity/incompatibility. A discussion on misconduct or incapacity/incompatibility is reserved for the future. Misconduct constitutes in itself a separate discussion and incapacity/incompatibility another discussion. Incompatibility in itself may, however, constitute wilful incompatibility which equals misconduct, but unwilful incompatibility should instead be treated as a form of incapacity. The term “retrenchment.” The term “retrenchment” is possibly a word that sends a shock wave amongst employees when such a term is used in the work environment. “Retrenchments” are the order of the day due to the challenging economic climate in which South Africa presently finds itself.  The term “retrenchment” is the common term for the terminology used in the Labour Relations Act, 66 of 1995 (“LRA”). The LRA acknowledges the right of employers to terminate employment on the basis of the “operational requirements” of the employer.  In other words, termination of employment on the basis of the operational requirements of the employer results from the need of the employer to reduce the total number of employees employed for operational requirements. What constitutes “operational requirements”?  The term “operational requirements” is not defined in the LRA, and put otherwise, it means that due to the requirements of the employer, termination of employment may have become necessary. Operational requirements may include advances in technology (artificial intelligence replacing humans, robots etc.), the change in the business strategy of an employer, the economic climate etc. The procedure for retrenchments The LRA prescribes the procedure in section 189, which an employer must follow when anticipating dismissing an employee based on the operational requirements of the employer. Important aspects to be taken into account by both employers and employees when faced with the issue of retrenchment are the following: Notice pay  Section 41 of the BCEA regulates “severance pay” if an employee(s) is/are dismissed on the basis of “operational requirements” (retrenched). A minimum of four weeks’ notice must be paid, as well as severance pay equal to one week’s remunerations for each completed year of continuance service with the employer.  Certificate of service In terms of section 42 of the BCEA, an employer must also issue the retrenched employee(s) with a certificate of service and, if required by the employee(s), the reason for termination of employment. The latter aspect is essential as an employee(s) seeking future employment may then prove that their termination of service is not related to misconduct or incapacity but to operational requirements – which were beyond the control of the employee(s). Disputes about unfair “retrenchments.” If an employee(s) is unfairly dismissed, they may refer a dispute to the CCMA if only one employee was affected. If more than one employee were involved, the Labour Court has the ultimate jurisdiction to determine the dispute. The dispute must be referred within 30 calendar days of termination of service and must first be directed to the CCMA for conciliation before the matter can be further referred to arbitration in the CCMA or the Labour Court. The conciliation process is the first level of dispute resolution and is informal. At this stage, the presiding commissioner may attempt to have the parties reconciled or reach an agreement. The commissioner has no binding authority to make any awards at this level, and if they fail in negotiating a reconciliation or settlement, they will issue a certificate of non-outcome, whereafter the employee(s) may refer the matter further to arbitration or the Labour Court. A referral may also be made to the relevant Bargaining Council if the business of the employer falls within the jurisdiction of a relevant Bargaining Council.  Before an employee(s), therefore, refer to a dispute based on unfair dismissal, the jurisdiction of the CCMA or a Bargaining Council should first be determined. Some, but not all, industries resort under a Bargaining Council, such as motor manufacturing, steel, hair, nursing and other industries/professions. The award If a dispute is arbitrated by the CCMA or a Bargaining Council, alternatively determined by the Labour Court, and if an unfair dismissal is found to have occurred, a retrospective reinstatement from the date of discharge, alternatively re-employment from a date as determined, or compensation may be awarded/ordered.  Dealing with Retrenchment Making the decision to implement retrenchment can be a difficult process for both employers and employees alike. For companies, it can be a necessary step to adjust to evolving market circumstances and ensure financial stability. However, this can have significant consequences on the employees who are affected, leading to job loss and financial struggles. Whether you’re an employer seeking guidance on the retrenchment process or an employee needing assistance with your rights and entitlements, SB Lawyers has you covered. Don’t face these challenging situations alone – reach out to us today for personalised legal counsel and support. Your future and the future of your business matter to us. Contact us to schedule a consultation and take the first step towards a smoother retrenchment process.

One of the most important relationships one may find oneself in is the employer-employee relationship. Due to the nature of the relationship, it is essential to ensure that the relationship is regulated by a thorough employment contract which provides for the rights of an employee and the employee’s duties. A written employment contract is not a pre-requisite in law but should be recommended. If a written contract is not concluded, the employment relationship is governed by statutory provisions and, more specifically, by the Basic Conditions of Employment Act, Act no 75 of 1997 and the Labour Relations Act, Act no 66 of 1995.  The Basic Conditions of Employment Act: The Basic Conditions of Employment Act regulates the specific relationship between employers and employees, such as working hours, leave, sick leave, overtime etc. As already stated, if a written employment contract is not concluded, the employer-employee relationship is regulated by this act. Some of the provisions of this act may be changed by agreement between the parties on certain terms and conditions, and some may not be altered.  The Labour Relations Act The Labour Relations Act primarily regulates relationships between employers, employees, trade unions and employer organisations. A written employment contract cannot change or exclude  provisions of the act aimed at protecting employees. More specifically, employees are covered in the Labour Relations Act against unfair labour practices committed in the workplace and inequitable dismissals, regulating proper procedures for employees in categories such as misconduct, incapacity and retrenchments. The Labour Relations Act also established the CCMA and Bargaining Councils to assist with labour-related disputes. The Other Acts Regulating Employment Relationships Other acts regulate other related issues of employment, such as the Employment Equity Act, Act no 55 of 1998, Occupational Health and Safety Act, Act no 85 of 1993 and the Compensation for Occupational Injuries and Diseases Act, Act no 130 of 1993 and the Skills Development Act, Act no 97 of 1998. The Employment Equity Act promotes employment equity in the workplace and aims to advance employment equity, equal opportunities and equality in the workplace.  The Occupational Health and Safety Act aims to ensure the safety of employees in the industrial environment where employees are exposed to industrial plants and machinery.  The Compensation for Occupational Injuries and Diseases Act is statutory insurance for employees under circumstances where an occupational injury or disease is contracted in the workplace. Employers are obliged to, under certain circumstances, deduct from an employee’s remuneration and pay over to the Compensation Commissioner monthly contributions. If an employee is diagnosed with an occupational injury or disease, the act makes provision for statutory compensation to be paid by the Compensation Commissioner under appropriate circumstances.  General Unfair labour practices (ULP) or unfair dismissals Unfair Labour Practices and Unfair Dismissals occur daily in the South African workspace. Whether a dismissal follows an incident of misconduct, the employee becomes incapacitated, or the employer wishes to dismiss based on its own operational requirements (generally referred to as “retrenchment”), the Labour Relations Act concisely sets out the procedures to be followed. When an employee is dismissed, the question often arises whether the dismissal was procedurally and substantively fair. If an employee is aggrieved about unfair dismissal, they may refer a dispute to the CCMA or a Bargaining Council (see hereunder), which institution may resolve the dispute. Substantive fairness relates to whether there were substantive reasons for dismissal. Procedural unfairness relates to the question of whether a fair procedure in accordance with the Labour Relations Act and other rules has been followed by the employer. When a dismissal is found to be procedurally and substantively unfair, it renders the dismissal unfair, and the employee may seek compensation or even reinstatement under the appropriate circumstances. Some disputes are reserved solely for the jurisdiction of the Labour Court, such as automatic unfair dismissals. Automatic unfair dismissals are deemed to be, amongst others, dismissals where an element of discrimination is present. The Labour Relations Act sets out which disputes should be referred to the Labour Court and which to the CCMA or a Bargaining Council. The CCMA/Bargaining Council As already mentioned, the CCMA or a specific Bargaining Council may have jurisdiction to determine a labour dispute. The CCMA determines labour disputes not reserved for certain Bargaining Councils. Certain Bargaining Councils perform the same duties as the CCMA regarding unfair labour practices or dismissals. Specific industries may have a Bargaining Council established to determine such disputes, such as the motor-, metal and engineering-, nursing- and even the hairdresser industries. An employee must refer a dispute to the CCMA or the relevant Bargaining Council within 30 calendar days after the dispute arose. Should the dispute be guided by an employee beyond the 30 calendar days period, condonation for the late referral must be sought from the dismissed employee from the CCMA. Depending on the reasons for lateness, condonation may be granted.  Once the dispute has been referred to the CCMA, the CCMA must set the dispute down for conciliation before a Commissioner. The purpose of the conciliation process is to attempt to resolve the dispute through conciliation – which constitutes an informal process. In the absence of the dispute being resolved at the conciliation level, a certificate of non-outcome is issued, and an employee may then proceed to refer the dispute to the next level of dispute resolution, namely arbitration. Arbitration is a more formal process and involves recording the proceedings, evidence under oath etc. and the issue of an award which may be final and binding on the parties. Depending on the nature of the dispute, more particularly a dismissal or incapacity dispute, legal representation is not automatically permitted, and an application for legal representation must be made by the party seeking to be legally represented. Legal representation may be granted under circumstances where the matter appears factually and legally complex and where the employee cannot represent themselves properly in such proceedings.  At the conclusion of the arbitration and upon the Commissioner making their award, one of the

Employers are obliged to pay over TERS monies received to its employees for who the employer has applied for the payment of TERS monies. It has been identified that many Employers do not pass TERS payment on their employees, which is unlawful. What can employees do? There are possibly many remedies for employees but the most effective may be the declaration of a dispute to the CCMA or a relevant bargaining council in order to “ring fence” the employee against victimisation by the employer. The referral of a dispute should be in combination with the making of so called “protected disclosure” in terms of the Protected Disclosures Act. A protected disclosure is a disclosure made as to unlawful conduct committed by an entity/employer, which is reportable to the authorities and which disclosure/report is also protected in terms of the protected disclosures act. If an employee refers a dispute in combination with a protected disclosure, the employee is protected against any form of victimisation or retaliation by the employer. It is preferred that such a referral and a protected disclosure is made with an experienced labour attorney who should be able to formulate the referral and the protected disclosure carefully. A protected disclosure should, however, not be made to solicit a payment from the employer, which is not due to the employee, but to have the unlawful action of the employer correctly addressed and to have the employee treated fairly and lawfully.