Labour Law

To refer a dispute to the CCMA, you complete a referral form, serve it on your employer, and send the form with proof of service to the CCMA before your deadline expires. For a dismissal, that deadline is 30 days from the date you were dismissed. The Commission then sets the matter down for conciliation, and if that fails, for arbitration, where a commissioner hears both sides and issues a binding award. Most people referring a dispute are doing it for the first time, under pressure, with a clock already running. Miss the deadline or serve the form incorrectly and the CCMA may refuse to hear the matter at all. Here is the referral itself first, followed by what each stage involves and where a labour attorney changes the outcome. How to refer a dispute to the CCMA step by step The referral is a defined process, and getting each step right is what gives the CCMA authority to hear your matter. Follow these steps in order: Complete the referral form. This is the LRA Form 7.11, which asks for your details, the employer’s details, the nature of the dispute and the outcome you want. Accuracy matters, because errors here can render the referral defective. Serve the form on your employer. Deliver it by hand, email, or registered post, and keep evidence of how and when you did so. Prove service to the CCMA. Send the completed form to the CCMA together with proof that the employer has received it, by hand, email or fax. Wait for the CCMA to set the matter down. The Commission contacts both parties, usually within 30 days, with the venue and date for the first hearing, which is conciliation. Attend on the date given. Both parties are expected to appear, and the process moves forward from there. If the referring party makes errors in completing or serving the form, the referral can be defective, and the CCMA may find it has no jurisdiction to hear the matter. A dispute thrown out on a technicality still counts against your deadline, so precision here protects everything that follows. Deadlines you cannot afford to miss The single most common reason a good case never gets heard is a missed deadline. An unfair dismissal dispute must reach the CCMA within 30 days of the date of dismissal. An unfair labour practice dispute must be referred within 90 days of the act or omission you are complaining about. A discrimination dispute has a longer window of six months. These are calendar days, not working days, so weekends and public holidays count. Deadlines run from the date the dispute arose, which for a dismissal is usually your last day of employment. Miss the deadline and your matter is not automatically over, but you are on the back foot. You must apply for condonation, asking the commissioner to accept a late referral, which means showing a good reason for the delay and that your case has reasonable prospects. Condonation is granted at the commissioner’s discretion, not as a right, and a weak explanation sinks otherwise strong cases. The conciliation phase Conciliation is the first hearing, the CCMA’s attempt to settle the dispute by agreement. You and your employer meet with a commissioner whose role is to help both sides find common ground, not to decide who is right. The discussions are confidential and without prejudice, so offers made in conciliation cannot later be used against either party at arbitration. Legal representation is not allowed at conciliation. You may represent yourself, or be assisted by a co-employee or a registered trade union official. That does not mean a lawyer has no role, since an attorney can prepare you beforehand and make sure you do not accept less than your claim is worth under pressure. If the parties agree, the commissioner records it in a settlement that is binding and enforceable. If they cannot, the commissioner issues a certificate of outcome confirming the dispute remains unresolved. That certificate is your key to the next stage, because without it you cannot take most disputes to arbitration. What happens at arbitration Arbitration is the formal hearing where a commissioner listens to evidence and makes a binding decision. To get there, you refer the dispute using the LRA Form 7.13, and for most dismissal disputes you must do so within 90 days of the certificate of outcome being issued. It is adversarial rather than cooperative, closer to a court hearing than the settlement talks of conciliation. At the hearing, each side makes an opening statement, then leads its evidence under oath and calls witnesses. Both parties can cross-examine the other side’s witnesses, often where cases are won or lost, and then make closing arguments. The commissioner weighs the evidence against the Labour Relations Act and issues an arbitration award, normally within 14 days. That award is final and binding, and can be enforced like an order of the Labour Court. One trap catches many people off guard. In certain matters, including some dismissals during probation, the CCMA runs a combined process called con-arb, where conciliation and arbitration happen on the same day. If you arrive expecting only an informal settlement discussion and are not ready to lead evidence and cross-examine, you can lose the arbitration before you realised it began. Knowing in advance whether your matter is a con-arb is essential preparation. Legal representation at arbitration is more open than at conciliation, but not automatic. For dismissals involving misconduct or incapacity, you are not entitled to an attorney as of right, and the commissioner decides whether to allow it after weighing the complexity of the case and the views of both parties. For other disputes, a legal practitioner is generally permitted. After the award: review and rescission An arbitration award is final, but not always the end of the road. If a commissioner committed misconduct, made a gross irregularity, exceeded their powers, or reached the award improperly, a party can take the award on review

Your pay is short this month, or it has not come at all. Your employer may have docked money for a breakage or held it back over a disagreement. Either way, you have the right to know whether that is legal. It usually is not. Your salary is protected by law, and an employer can only deduct from your pay in limited situations. Withholding wages you have already earned is almost never one of them. Your Salary Is Protected The main law here is the Basic Conditions of Employment Act, or BCEA. Section 34 governs deductions. Your employer cannot take money off your pay unless one of two things is true. First, you have given written consent for a specific deduction, such as a signed agreement to repay a loan. Second, the deduction is required or allowed by law, a court order, a collective agreement, or an arbitration award. Any other deduction is unlawful. Understanding your rights as an employee helps you recognise when your employer has stepped outside these rules. Deductions Your Employer Can Make Some deductions are normal and lawful. You will usually see them itemised on your payslip. Deductions your employer may make include: Tax (PAYE) and UIF contributions, which the law requires Retirement fund or medical aid contributions that you have agreed to Union membership fees, where you are a member and have agreed to them Garnishee or other court orders that direct part of your pay to someone else Loan or salary advance repayments that you agreed to in writing These are lawful because the law requires them or you have agreed to them. The amount and reason should be clear, and you can ask your employer to explain anything on your payslip you do not understand. Deductions for Loss or Damage Have Stricter Rules Employers sometimes deduct for a loss the business has suffered, such as a till shortage or damage to a company vehicle. This is allowed, but the rules are strict. Your employer needs your written agreement to the deduction, and all of the following must also be true: The loss or damage happened at work and was your fault Your employer followed a fair process and gave you a chance to explain your side The amount deducted does not exceed the actual loss The deduction does not exceed a quarter of your pay for that period If these requirements are not met, the deduction is not lawful. Where you have not agreed, your employer cannot simply take the money and would have to claim it through a court instead. A common mistake is deducting for a shortage on the spot, without your agreement and without giving you a chance to respond. What Your Employer Cannot Do Some actions are not allowed, whatever your contract says. Your employer cannot: Withhold your full salary for work you have already done Fine you as a punishment for a mistake or misconduct Deduct a disputed amount without your consent or a court order Take money off your pay simply because they believe you owe the business If there is a genuine dispute about money you may owe, your employer has to follow the proper route, which usually means reaching an agreement with you or going to court. They cannot take the law into their own hands. There is one exception. If you did not work, through unpaid leave or an unprotected strike, your employer does not have to pay you for that time. That is different from holding back pay you have already earned. What to Do If Your Pay Is Withheld If your pay has been withheld, or deducted without your agreement, take these steps. Raise it in writing. Ask your employer for an explanation and put your request in an email or letter. Keep a copy. Many deductions turn out to be payroll errors that are fixed quickly. Gather your records. Keep your payslips, your employment contract, any messages about the deduction, and a note of the dates and amounts involved. These show what you were owed and what was taken. Approach the Department of Employment and Labour. You can report unpaid wages to a labour inspector, who can investigate and order your employer to comply. It is free. Refer the matter to the CCMA. If you earn below a set threshold, you can refer a claim for unpaid amounts to the CCMA. For higher earners, the claim goes to court instead. Act quickly. A claim for unpaid money expires after three years, and once it does, you lose the right to recover what you are owed. When to Speak to a Labour Attorney The right forum for a salary claim depends on how much you earn and why your pay was withheld. Getting that wrong can cost you time. A labour attorney can confirm whether the deduction was lawful and take the claim to the right forum on your behalf. That often settles the matter faster than dealing with your employer yourself. Get Help From SB Lawyers At SB Lawyers, our labour team helps employees across Pretoria and Nelspruit recover pay that has been unfairly withheld or deducted. If your employer is holding back your salary or taking money you did not agree to, speak to us. Contact SB Lawyers today to find out where you stand and what your options are.

Sometimes a job becomes so unbearable that resigning feels like your only way out. Your employer cuts your pay or treats you so unfairly that you hand in your notice. On paper, you quit. But the law may see it differently. This is constructive dismissal. When an employer makes conditions intolerable and leaves you little choice but to resign, your resignation can be treated as a dismissal, which means you may be able to claim. What Constructive Dismissal Means Most dismissals happen when an employer ends your employment. Constructive dismissal works the other way around. You resign, but only because your employer has made your working life so difficult that staying is no longer reasonable. The Labour Relations Act covers this in Section 186(1)(e). In plain terms, it says that if you end your contract because your employer made continued employment intolerable, the law treats it as a dismissal rather than a simple resignation. Like other unfair dismissal claims, that gives you the right to take the matter further. The important word here is “intolerable.” That word is deliberately strict. A job you dislike or a boss you struggle to get along with will not be enough on its own. The conditions have to be bad enough that a reasonable person in your position could not be expected to carry on working. What You Have to Prove In a constructive dismissal claim, you are the one who has to prove it. If you resign and then go to the CCMA, you have to show that your situation meets three points, on a balance of probabilities: You ended the employment, usually by resigning Staying had become intolerable It was your employer’s conduct that made it that way, not an unrelated reason The CCMA also applies one more test. The test is objective, which means it does not rest on how the situation felt to you alone. What counts is the actual conditions you faced. Examples That Usually Count, and Ones That Usually Don’t Every case is judged on its own facts. No list can cover them all. Past CCMA rulings still give a good idea of what tends to succeed. Situations that have supported a claim include: An employer cutting your pay or changing your role without agreement Ongoing bullying or public humiliation Sexual harassment that the employer failed to stop after it was reported Being pressured or threatened into resigning Situations that usually do not succeed include: Unhappiness with a manager’s style or a personality clash Being passed over for a promotion or refused a raise Being reprimanded fairly for poor performance Resigning to avoid a disciplinary hearing you were facing Genuine claims tend to involve conduct that breaks the trust between you and your employer. Everyday frustrations at work, even genuine ones, are usually not enough to succeed. Try to Sort It Out First One step can strengthen a constructive dismissal claim, and many employees skip it. Before you resign, raise the problem formally with your employer. The CCMA expects you to give your employer a fair chance to fix the situation. That usually means lodging a written grievance or putting your concerns in an email you can refer back to later. If you resign without doing this, your employer can argue that you had options you never used, which weakens your case. There is an exception. Where the conduct is extreme, such as assault or sexual harassment, the CCMA accepts that staying long enough to follow a grievance process may not be reasonable. Outside of those situations, showing that you tried to resolve the issue first will strengthen your position. Evidence You Will Need A constructive dismissal claim depends on what you can show. As the person bringing the claim, a clear record gives you a better chance at the CCMA. Useful evidence includes: Emails or messages that show how you were treated Your written grievance and any reply from your employer Payslips or contracts that show pay cuts or changes to your role Notes of incidents, with dates and what was said Names of colleagues who saw what happened and could support your account Start keeping these records early, while the problems are still happening. You usually lose access to work email and systems the day you leave, so gather what you can while you are still employed. How the CCMA Handles a Constructive Dismissal Dispute If you decide to take your claim further, it helps to know what the steps look like. The process at the CCMA usually runs as follows: Refer the dispute within 30 days. You have 30 days from the date you resigned to lodge your claim, so try to act while everything is still fresh. If some time has already passed, you can apply for condonation, where you ask the CCMA to accept a late referral and explain the reason for the delay. Conciliation. This is an informal meeting where a commissioner helps you and your employer discuss the dispute and look for an agreement. Many cases are resolved at this stage. Arbitration. If conciliation does not settle things, a commissioner hears both sides and makes a binding decision based on the evidence. Should your claim succeed, the CCMA can award compensation of up to 12 months’ pay, or reinstatement if you would prefer to return to your job. One more useful point. Constructive dismissal is treated as a dismissal rather than a resignation, so a successful claim can allow you to apply for UIF, which would not normally be possible after resigning. When to Speak to a Labour Attorney Constructive dismissal is one of the harder claims to prove. The test is strict, and your employer will likely argue that you simply chose to resign. Good legal advice early often improves your chances. A labour attorney can look at your situation honestly and tell you whether you have a case before you resign, which is often the most important moment to get advice. They can help you build your record

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