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:

• Firstly, in the event of any disputes concerning working hours, leave, remuneration, and other related matters, the terms and conditions of employment are reduced to writing, making it substantially easier to resolve such disputes.
• Secondly, a written employment contract protects employees from disputes related to the nature of their relationship with their Employer. It is not uncommon for such disputes to arise, and having a written contract can help avoid such disagreements.
• Lastly, a written employment contract condenses your rights into one uniform document, which can help ensure clarity and consistency.

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:

1. Working hours: The act sets out the maximum hours an employee can work per week, as well as breaks and rest periods.
2. Annual leave: The BCEA provides employees with a minimum of 15 working days of annual leave per year.
3. Sick leave: The act also provides a minimum of 30 days of sick leave for every three-year employment cycle.
4. Maternity leave: Female employees are entitled to four months of maternity leave, while male employees are entitled to 10 consecutive days of paternity leave.
5. Notice periods: The act stipulates the notice periods that employers and employees must give when terminating a contract of employment.
6. Overtime: Employers must pay employees who work overtime at least 1.5 times their standard hourly rate.
7. These are just a few of the important parts of the BCEA. The act aims to protect the rights of employees in South Africa and ensure that they are treated fairly in the workplace.

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:

• The charge(s) that have been formulated are specific and concise; otherwise, how will an employee prepare for a hearing?
• That an employee is entitled to request specific documents from the Employer that may assist the Employee in preparation for the hearing;
• An employee may call witnesses to testify, but another issue is whether they want to testify. For the sake of this article, assume that they are willing. During the hearing, an employee must be able to cross-question (cross-examine) these witnesses to the fullest extent possible to create doubt on the Employer’s case;
• An employee has the right to be represented by a fellow employee or a trade union representative recognised by the Employer. The limitation of representation in a disciplinary hearing may be unconstitutional, depending on the circumstances. Some large employers have skilled and trained persons to conduct the hearing on behalf of the Employer, but the same cannot be said concerning the Employee. Most often, co-employees are reluctant to become involved in assisting a colleague;
• The chairperson presiding over the hearing must be impartial and have no prior knowledge or information. As a general rule, it is doubtful whether chairpersons qualify with no impartiality or prior knowledge.

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:

• Dismissals (Sections 186 – 189) – Often, unfair dismissals are referred to the CCMA. Unfair dismissals can present in different forms – for example, being offered a less favourable contract than the Employee’s current one with the same Employer. In dismissal disputes, bear the onus in the CCMA to prove that the dismissal was fair in both the procedure and the reason(s) for the dismissal.
• Retrenchments also classify under this umbrella, and so does an incapacity dismissal -e.g., for instance, an employee becomes ill or permanently disabled and is dismissed as a consequence thereof;
• Unfair Labour Practice (Section 186) – These disputes seek to restore what was previously in effect. An example of this may be that an employee has been unfairly demoted or another employee has been unfairly promoted above another. Another example may be that a warning has been issued against an employee without procedure or substantial reason.

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.

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Disputes regarding maintenance demand immediate steps to be taken and require urgent intervention. The reality is that resolving a maintenance dispute can be time-consuming, and securing the services of an attorney who has knowledge of dealing with these disputes to navigate them in a successful manner is sometimes difficult. 

At SB Attorneys, we understand that people turn to the Maintenance Court for a reason, and we strive to provide cost-effective, result-driven solutions.  

Understanding Maintenance Law in South Africa

The duty to maintain is based on a blood, adoption or marriage relationship. The requirements considered by a Maintenance Court in deciding whether to grant an order to maintain, generally, are the following:

1. Whether the person claiming maintenance can maintain himself/herself?
2. ​Whether the person from whom maintenance is claimed can afford to pay maintenance (i.e., means)?
3. Are the maintenance needs reasonable?

In terms of the maintenance law in South Africa, minor children have a constitutional right to be maintained by both their/his/her parents. This right is extended to children who are majors but remain dependent. Children who reach the age of majority before completing their education or who pursue tertiary education are considered dependent and have the right to be supported by their parents.

Each parent’s share of the duty is apportioned according to his/her means. The duty to maintain is not limited to a child. Any family member, irrespective of the family member’s age, can approach the Maintenance Court for an order to be maintained, taking into account the requirements above. 

When no maintenance order exists, the Maintenance Court may make an order against the person(s) to be legally liable, that the maintenance be paid to the person(s) claiming maintenance.

Common Causes of Maintenance Disputes

When there is a maintenance order, the Maintenance Court, depending on the relief sought and the circumstances, may make an order replacing the existing order (either an increase or decrease in the amount of maintenance), discharge the maintenance order (for instance, when a major child is no more dependent) or make no order (when the requirements referred to above, are not met).

When an order exists, and the person against whom the order is made pays late or fails to pay, the maintenance order is enforceable regarding any outstanding amount, together with interest by execution against property, the attachment of emoluments or the attachment of debts. 

A person against whom a maintenance order is made is guilty of an offence and liable on conviction of a fine or imprisonment. In circumstances where the defence raised against the non-payment relates to a lack of means, the matter will be converted into a formal enquiry to determine, factually, whether a lack of means exists on the side of the defaulting party and in which instance, the Maintenance Court will vary the existing maintenance order.

It often occurs that where no maintenance order exists, the person from whom maintenance is claimed (the father) disputes the paternity of the child(ren). In these circumstances, the Court will order the parties to attend a paternity test to confirm the relationship (biological) between the father and the child. Once paternity is confirmed, the matter will proceed. 

How To Institute Maintenance Proceedings

The Maintenance Court is a Magistrate’s Court, and each Magistrate’s Court has a Maintenance Court.

The Maintenance Court in the district where the person(s) reside in whose favour/benefit the order is made must be approached.

A complaint relating to maintenance, whether it is that maintenance is not paid or a substitution or discharge of a maintenance order is sought, must be lodged with the maintenance officer, who will investigate the complaint. Only after the maintenance officer has investigated the complaint will the matter be referred to the maintenance court for an enquiry. 

During the investigation phase conducted by the maintenance officer, attempts will be made to settle the dispute; however, in the absence of a settlement, the matter will ultimately be referred to the Maintenance Court for an enquiry. Here, the parties will present their case to the Magistrate and await the ruling.

In High Court litigation, Rule 41A of the Uniform Rules of the High Court provides for mediation of disputes. Unfortunately, a similar provision does not exist in the Maintenance Act. 

The Role of SB Attorneys in Maintenance Disputes

SB Attorneys, who specialise in family law, prioritise the possibility of reaching a settlement as the first approach. This is especially important when minor children are involved, as it serves their best interests, both financially and emotionally. Pursuing a settlement can also save both parties time and costs associated with prolonged litigation.

If you are facing maintenance disputes and require legal assistance, consider contacting our team at SB Attorneys. We understand the importance of all parties involved and strive to find a resolution that is both fair to the parents and that remains in the best interest of any children involved.

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The idea of losing a partner can bring about feelings of insecurity and uncertainty about various aspects, such as child custody, financial support, and the general aftermath of the divorce. The emotional impact of the situation can be overwhelming.

Since divorce can be a life-changing and emotionally challenging experience, couples facing the possibility of divorce often seek ways to simplify the process.

While DIY divorce papers may seem like an attractive option on the surface, this article will explore both its advantages and drawbacks, as well as the importance of involving sound legal counsel. We will shed light on the potential benefits of handling divorce paperwork independently, as well as the significant risks and pitfalls that can arise along the way.

The Appeal of DIY Divorce Papers

We understand that you may want to handle your own divorce proceedings without hiring a legal practitioner to avoid incurring legal costs.

However, we would like to suggest that while cost is an important factor to consider, it shouldn’t be the only factor. When it comes to divorce, it’s vital to have an experienced and reliable attorney who can guide you through the process and ensure that your interests are protected.

Choosing the right attorney can be a daunting task, but it’s worth taking the time to find the right one for you. After all, a DIY divorce may seem like a cost-effective solution, but it can end up costing you more in the long run if you don’t have the right support.

The Pros of DIY Divorce Papers

Divorce is a tough time, and it’s easy to feel like you can handle everything on your own. While it’s great to be resourceful, it’s important to remember that attorneys have years of experience and expertise that is invaluable in a divorce case.

Trying to handle it on your own will end up costing you more in the long run. So, it’s always best to consider hiring an attorney at the start of the proceedings.

They’re here to support you through this difficult time and make the process as smooth as possible.

The Risks of Handling Your Own Divorce in South Africa

The risks involved in attending to your own divorce are numerous.

Claiming for Maintenance Correctly

It is important to formulate a claim for maintenance when issuing a summons for divorce, especially if one spouse is dependent on the other spouse for financial support. This claim should include reasons for the breakdown of the marriage relationship, the financial means of both spouses and the contributions made by one spouse towards the estate or growth in the estate of the other spouse.

Failing to do so effectively will result in the abandonment of the right to claim for maintenance.

Clauses for Dependent Children

When minor children are involved in a divorce settlement, it’s important to include specific clauses in the agreement or parenting plan to ensure compliance with the Children’s Act.

Additionally, it’s crucial to provide for the maintenance of dependent children when issuing a summons.

Type of Marriage Matters in a Divorce

In Community of Property or Out of Community of Property with the Accrual:

When spouses are married, either in community of property or out of community of property, and one spouse is unhappy about the other spouse’s failure to contribute towards the communal estate or if they feel that the other spouse will benefit unfairly, they can ask for half of the communal estate or an amount that represents half of the difference in accrual between the spouses’ respective estates.

In such a case, forfeiture in terms of the Divorce Act must be pleaded. If forfeiture is not pleaded, it will be considered that the aggrieved spouse does not object to the division of the communal estate on a 50/50 basis or to the application of the accrual system.

Out of Community of Property:

It can become problematic in situations where parties are married out of community of property as well.

For example, if one spouse contributed to the growth of the other spouse’s estate by participating in management, and labour, taking over household chores, including raising children, and enabling the other spouse to grow their estate, a (limited) partnership must be claimed. If such a claim is not made, it can be detrimental and difficult to amend the summons or pleadings later during the divorce when an attorney is appointed to make provision for it.

Recently, the Constitutional Court passed a ruling on the discretion of a Court to make a redistribution order where parties are married out of community of property, excluding accrual, after 1 November 1984. Accurate pleas must be formulated in drafting a summons or a counterclaim for it.

Rule 43 Applications

A Rule 43 application can be used as a remedy for the availability of a spouse during a divorce action. This type of application is brought for relief while the divorce is being finalised.

The application seeks:

• Maintenance for the children who are living with the spouse who issued the application
• Maintenance for the spouse issuing the application if they have a need (including bond payments, car instalments, etc.)
• Primary residency and care of the children
• Contact rights for the other spouse
• A contribution towards legal costs.

It is crucial to seek legal assistance in cases where the residency and care of minor children are in dispute, to ensure that the summons or counterclaim includes the necessary prerequisite pleas.

Why Legal Counsel Matters

Based on the information provided above, it is clear that choosing not to hire a legal practitioner or attorney may result in you having to pay more to correct and modify legal documents. Furthermore, it could lead to you unknowingly giving up your legal rights and losing your case.

It’s important to seek legal counsel to ensure that you are fully aware of your rights and receive the best possible outcome. 

Finding the Balance

SB Lawyers provides in-depth legal counsel tailored to our ever-growing technological world so that you don’t have to do your own DIY divorce papers. We strive to empower our clients by keeping them informed and guiding them professionally towards optimal outcomes.

How can SB Lawyers help you find the balance?

We understand that financial challenges can be overwhelming and that incurring extensive legal fees only adds to the burden. At Schoeman Borman Incorporated, we recommend settling a divorce amicably to avoid unnecessary legal costs. Our goal is to achieve positive results for our clients at affordable rates.

The post DIY Divorce Papers: The Pros and Cons and the Vital Role of Legal Counsel appeared first on Schoeman Borman.

What is unfair dismissal?

An “unfair dismissal” can be defined as a dismissal where there was no fairness applied in the procedure leading up to the dismissal and/or even if the procedure may have been fair (which is not always so), the dismissal may be substantively unfair – meaning that, although the employee was found guilty of some form of misconduct, such misconduct did not warrant dismissal. In most cases, a dismissal should be seen as the last resort.

However, it is important to note that there may be (and are), circumstances where a dismissal may be immediate – e.g., theft, intoxication, being under the influence of drugs, harassment in the workplace (including but not limited to sexual harassment), or other forms of dishonesty, discrimination on any basis such as racism expressed etc.

Understanding Legal Protections of the Employee

Before South Africa’s constitution was introduced in 1996, our labour law regulations were underdeveloped however, in the years to follow, this same labour environment has become extremely regulated. The regulation of labour relations (including dismissals) is sometimes criticised, from an employer- or job-creation perspective, as “over-regulated” – especially from a trade and industry perspective. Whereas, from an employee perspective, criticism is much less, this is due to the regulatory framework being seen, to a large extent, to protect individual employee rights.

The South African Bill of Rights, as contained in the Constitution, lists specific constitutional rights (the “Bill of Rights”).  Section 23 of the Constitution (“Bill of Rights”) states that “Everyone has the right to fair labour practices”. The Labour Relations Act (“LRA”), specifically, gives effect to fair labour practices in the workplace – including but not limited to unfair dismissals. More specifically, section 185 of the LRA states that every employee has the right not to be unfairly dismissed.

The Act then continues to categorise different categories of dismissals. The main categories may be summarised as the following:

·      Misconduct

·      Incapacity

·      Dismissal due to operational requirements of the employer (so-called “retrenchments”)

Different procedures apply to the different categories – please note there are also other categories within which dismissals may occur not discussed in this article (e.g. employment equity requirements).

Unfair Dismissal in Context

Misconduct

About the first category, namely misconduct, an employee can only be found guilty of misconduct if the employee contravened a rule or standard regulating conduct in or of relevance to the workplace. Furthermore, even if the rule or standard existed, the rule must have been valid or reasonable and whether the employee was aware, or could reasonably have been expected to have been aware of the rule or standard.

Incapacity

As previously mentioned, even if a rule or standard was breached, dismissal due to incapacity may occur either as a result of physical or psychological incapacity. Notwithstanding the nature of the incapacity, any form of incapacity (whether identified by the employer itself or reported by the employee) should also be preceded by an incapacity enquiry – which is not similar to a disciplinary hearing. Just as in the case of unfair dismissals, an employee may also not be summarily dismissed based on incapacity.

The incapacity enquiry should aim at identifying the cause, existence, cure (if possible) and remedy to be applied in the event of it being found that an employee is incapacitated for whatever reason. A dismissal based on incapacity may lead to the same consequences for the employer, namely reinstatement or compensation if it is found afterwards in the CCMA / Bargaining Council that a fair procedure was not applied and that dismissal was not fair under the circumstances.

An employer needs to determine what the cause of the incapacity may be. It may be easier in the event of a physical disability which was caused either outside or inside the workplace. A physical disability may be much more detectable than a psychological/mental disability. On the other hand, a psychological/mental disability may sometimes arise without it being detected immediately, arising in the workplace due to stress, overwork and lack of support factors.  

Operational Requirements

Dismissal due to operational requirements is more strictly regulated by the provisions of the Labour Relations Act, presumably to protect against unfair dismissals of which the employer is the cause – and not the employee. An employer may therefore dismiss an employee(s) on condition that compliance with the relevant sections in the LRA (sections 189 and 189A) is applied. The Act prescribes more specifically the procedure to be followed by an employer when anticipating a dismissal(s). An employer may, for instance, not pre-decide on a contemplated dismissal. The procedure as set out in the Act needs first to be followed before a dismissal decision may be taken.

A Real-life Example of Unfair Dismissal

Video footage may show that an employee while working after hours, investigates the contents of a drawer in the storeroom of the employer. In the drawer, a petty cash box is held. The next moment the employee is seen closing the drawer and walking away with an R100 note in the employee’s hand. The employer arrives the following morning, inspects the video footage and comes to the summary conclusion that the employee has stolen R100 from the petty cash box. The employer awaits the employee to arrive at work and turns the door on the employee informing the employee that he/she is dismissed for having stolen money after hours.

Afterwards, it may then appear that the bookkeeper owed the employee R100 for, say, a business expense claimed, processed the repayment, but, for some reason, could not hand over the R100 to the employee. The evidence may point out that the bookkeeper informed the employee that the R100 repayment had been logged on the system and that the R100 note was left for the employee in the drawer, but under the petty cash box for collection by the employee on his/her return to the office.

Under such circumstances, the dismissal will not only be found to be procedurally unfair, but the employer runs the acute risk that the employee may be re-instated retrospectively by the CCMA or the relevant forum – at great expense and embarrassment to the employer.

Importance of Disciplinary Hearings

Although the LRA does not specifically require a disciplinary hearing to be conducted under all circumstances, it may be risky, if not dangerous, for an employer to dismiss an employee without a disciplinary hearing having been conducted. An employer may be of the view that the facts of alleged misconduct may be so clear that a disciplinary hearing is dispensed with. If the evidence relied upon by the employer is, however, afterwards scrutinised in the CCMA or another forum (see hereunder), it may be found that there was evidence that could disprove the evidence relied upon by the employer to have dismissed an employee without a hearing.

Remedies of an Unfair Dismissal

The remedies are mainly the same and include a referral of a dispute based on unfair dismissal to either the CCMA or a Bargaining Council which has jurisdiction over the specific industry of the employer. The CCMA is more a general body considering unfair dismissal disputes of unfairly dismissed employees, whose employment was not within a sector regulated by a specific Bargaining Council. It is important to note that there are many industries whose labour disputes must be referred to a specific Bargaining Council – for example, the motoring industry, the mechanical and engineering industry, the nursing industry, the police and security industry, and even the beauty industry, all have their Bargaining Councils.

All disputes must first run the course of attempting to conciliate (“settle”) the dispute under the auspices of a presiding conciliating commissioner appointed to attempt to conciliate the dispute successfully. Only when the conciliation process fails, the employee concerned may refer the dispute further for arbitration by a presiding arbitrating commissioner. Arbitration is a much more formal process, and an arbitration award made by an arbitrator in favour of an employee is enforceable in law.

Escalating the matter

Some disputes, after a failed conciliation, must be referred to the Labour Court. These disputes are listed in the LRA, but the essence of such disputes is where there is/may be some form of retaliatory conduct by the employer, resulting in the exercise of vested rights by an employee(s)/trade union. Any alleged discriminatory acts or failures by an employer, must, after a failed conciliation, be referred to the Labour Court for adjudication. The reason behind this appears to be that discrimination/retaliatory actions by an employer are deemed in such a serious light that such disputes are reserved for the Labour Court. The High Court may also have jurisdiction, but this is a different topic and should not treaded upon without expert advice.

The remedies the CCMA/Bargaining Councils and the Labour Court have varied from compensation to be awarded to reinstatement or retrospective reinstatement to be awarded depending on the facts.

The CCMA / Bargaining Councils may make compensation awards up to a maximum of 12 months based on the employee’s monthly remuneration, while the Labour Court’s jurisdiction is increased to a maximum of 24 months.

So-called constructive dismissals are a complex issue. Most often it is found that an employee resigns under protest under the guise of a so-called constructive dismissal. This is a topic for another time.

Rights and Responsibilities as the Employee

Knowing your rights and responsibilities as an employee during the dismissal process can help you protect yourself from wrongful termination and ensure that you are treated fairly by your employer. It can also help you understand the steps involved in the dismissal process, such as the reasons for your termination and any severance packages you may be entitled to.

In addition, being aware of your rights and responsibilities can give you the confidence to seek legal advice or take action if you feel that your employer has acted unfairly or unlawfully. Therefore, employees must educate themselves on their rights and responsibilities in the event of a dismissal.

For further examination on this topic, please refer to our article on Employee Rights and Responsibilities During the Dismissal Process.

Unfairly Dismissed or Subjected to Unfair Labour Practice?

If you are an employee who has been unfairly dismissed, you must seek legal advice before taking any further action. SB Lawyers is experienced in handling such cases and can provide you with expert guidance.

If you or someone you know requires legal assistance, do not hesitate to reach out to us – we are always ready to help.

The post Unfair Dismissal: What is it, and what can you do about it? appeared first on Schoeman Borman.

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 on the merits whenever a decision is to be made on the outcome of a disciplinary hearing. 

Employees are advised to not only accept that the chairperson appointed will, out of necessity, be a skilled or non-biased person and should not hesitate to if there is any reason to believe that an employee will not receive a fair hearing as a result of lack of skills or the biases of the chairperson, raise, question and clarify such before causing the disciplinary hearing to commence.

In combination with the above, although legal representation is not per se allowed in disciplinary hearings, nothing prevents an employee from consulting with a skilled attorney in labour law to assist the employee directly or indirectly with regard to the preparatory matters relevant to a fair disciplinary hearing. 

Why consult with a skilled attorney before a disciplinary hearing?

Employees may have a better chance of success in disciplinary hearings if they seek advice from a labour law attorney beforehand, even if they are not allowed legal representation during the hearing. Employers often recognise the benefit of having a skilled legal professional on the employee’s side, which can result in a less severe outcome for the employee.

This could mean negotiating a plea bargain that does not lead to termination or agreeing to a voluntary separation agreement. The latter typically involves the payment of a separation amount to the employee in combination with no finding against the employee, which, as a result, allows the employee to seek alternative employment on a pre-planned basis and without the “taint” of a disciplinary finding against the employee.

Consulting a skilled attorney in labour law beforehand has an added advantage. Even if the parties do not agree to alternatives, the employer will be less likely to terminate an employee. This reduces the chances of the employee lodging a successful unfair dismissal dispute with the CCMA or relevant Bargaining Council.

SB Lawyers: Labour Law and Employee Rights Experts

In conclusion, the importance of consulting a skilled labour law attorney before a disciplinary hearing cannot be overstated. Their expertise can significantly enhance an employee’s chances of a favourable outcome, whether through negotiation, alternative agreements, or simply by reducing the likelihood of termination. Don’t face a disciplinary hearing alone; seek the guidance of legal professionals who understand your rights and can advocate for your best interests.

Take control of your future today. Contact SB Lawyers, the experts in labour law and employee rights, to ensure your voice is heard and your rights are protected. Schedule your consultation now and secure the representation you deserve.

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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:

• 1.1 The employee’s participation in a strike or a protected strike which complies with the Act;
• 1.2 The employee refusing to work while participating in the strikes per 1.1
• 1.3 The employee refusing to accept a demand in respect of any matter of mutual interest between the employee and the employer
• 1.4 The Employee being pregnant, intended pregnancy or any reason related to pregnancy
• 1.5 Based on unfair discrimination
• 1.6 Transfer of business
• 1.7 An employee making a protected disclosure. If an employee is dismissed for any of the reasons stated above, the dismissal may be found to be automatically unfair. An unfair automatic dismissal, possibly due to the severity of the categories above, is reserved for determination by the Labour Court and not the CCMA or a Bargaining Council.

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:

• 3.1 The employee has been/should have been/could reasonably have been aware of the required performance standard
• 3.2 The employee was given a reasonable opportunity to meet the required standard
• 3.3 The employee did not meet the required standard, and dismissal was the appropriate sanction. The issues of procedural and substantive fairness are intertwined. The procedure to be followed in cases of poor work performance is to inform an employee of their deficiencies and guide and assist the employee to improve so as to meet the required standard. It is important for an employer to evaluate the employee and give training and guidance/counselling.

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:

• (i)The employee should receive counselling
• (ii)The medical condition of the employee and the consequences/impact it has on their duties must be discussed with the employee
• (iii) Consideration must be given to the possibility of the employee exercising their duties vis-à-vis their injury/impairment
• (iv) The prognosis of the employee
• (v)Considering alternatives in the workplace and the possibility of adapting the working conditions
• (vi)Providing the employee with an opportunity to contest the employer’s conclusion on further employment

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 includes incompatibility) has been followed. Counselling also plays an important role and may find application for a period of time, depending on the circumstances.

Although both dismissals based on misconduct and dismissal based on incapacity generally require a fair procedure in determining the need for dismissal, no specific procedures are set out by the Act, save for a fair procedure to be followed in accordance with the provisions of the Code of Good Conduct: Dismissal and the interpretation thereof by the Labour Court judgments and CCMA/Bargaining Council ruling.

Dismissal Based On The Operational Requirements of The Employer

Dismissals based on operational requirements should be clearly distinguished from dismissals based on misconduct or incapacity. It can be stated that dismissals based on misconduct or incapacity occur when the reason for such originates from the conduct of the employee – whether in the form of misconduct or in the form of incapacity.

Dismissal, based on the operational requirements of an employer, occurs at the instance of the employer under circumstances where there may be no form of misconduct or incapacity. The Act permits dismissal due to the operational requirements of the employer. The term “operational requirements” is not defined or specific, and it may mean any operational requirement, such as changes in the economic climate, but also technical changes in the workplace. Technical changes in the workplace may include a change in the employer’s operations or even the necessity for substituting employees with technical equipment, which can render the same result as an employee.

A good example is the motor manufacturing industry, where manufacturing robots have, to a certain extent, already replaced the need for the human workforce. The process for dismissal based on operational requirements (which is normally referred to as “retrenchment”) is regulated by section 189 of the Act. Section 189 of the Act is more prescriptive and specific with regard to the procedure to be followed by an employer if compared to the general requirement of a fair procedure to be followed under circumstances of misconduct or incapacity.

Section 189 of the Act requires an employer to give a formal notice of the anticipated dismissal to the employee and for certain information to be contained in the notice. Section 189, furthermore, requires a bona fide and consensus-seeking consulting process before an employer may decide to dismiss an employee(s). For reasons unknown, there is a technical differentiation in the referral of disputes of unfair dismissal based on operational requirements. If only one employee has been affected by an operational requirement-dismissal, such an employee may refer the dispute for arbitration by the CCMA or a Bargaining Council. When or more employees were affected, the Labour Court must hear the dispute.

Employer Rights in the Dismissal Process

In South Africa, employer rights in the dismissal process are governed by the country’s labour laws, particularly the Labour Relations Act of 1995. Employers have the right to dismiss employees for valid reasons such as poor performance, misconduct, incapacity, or operational requirements. However, these rights are subject to specific procedural and substantive requirements outlined in the Labour Relations Act.

Employers are obligated to follow fair and transparent procedures when initiating dismissals, which include providing employees with written notice of the intended dismissal, conducting an investigation, allowing the employee to respond, and considering alternatives to dismissal.

Furthermore, employers have the right to dismiss employees for reasons related to the business’s operational needs, provided they follow the applicable legal consultation and notice requirements.

While employers possess the right to manage their workforce efficiently, South African labour laws emphasise the importance of balancing these rights with employees’ rights to fairness and due process in the event of dismissal.

Balancing Employer Rights with Employee Protections

The harmonious coexistence of employer rights and employee protections is paramount within the framework of South African labour laws.

While employers possess the autonomy to manage their businesses effectively, these rights are carefully balanced with safeguards to ensure fair treatment of employees. The Labour Relations Act underscores the significance of equitable workplace practices by mandating transparent procedures for dismissals, promotions, and other employment decisions.

This includes affording employees the right to respond to allegations, access to representation, and a structured process that considers alternatives to dismissal. Additionally, the Labour Relations Act upholds the right of employees to organise, bargain collectively, and participate in workplace matters, fostering a culture of shared decision-making.

By striking this equilibrium between employer autonomy and employee safeguards, South Africa’s labour laws aim to create a working environment that promotes social justice, economic stability, and respect for everyone involved. This aims to protect the rights and interests of both the employer and the employee, creating a fair balance between employer rights and employee protections.

A Trusted Opinion

As businesses adapt to changing economic landscapes, understanding the legal landscape surrounding dismissals in the South African context is crucial. The country’s labour laws recognise the rights of employers to manage their workforce effectively while simultaneously upholding the principles of fairness, due process, and employee representation.

Whilst there are various grounds for dismissal, each is subject to specific evaluation criteria and entails a range of processes to be followed. The ultimate goal is to ensure that dismissals are procedurally fair and substantively justifiable. This intricate balance safeguards the interests of both employers and employees, fostering a work environment that fosters productivity, collaboration, and social responsibility.

SB Lawyers can assist our clients with matters of this nature and so much more. If you are seeking legal advice and representation, contact us to get the process started today. To learn more about our services and the practice in general, explore our website.

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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:

• An employer must give prior notice to the employee(s) of its anticipation of termination of employment (“retrenchment”).
• The stated reasons for the anticipated retrenchment must be real and not artificial in order to terminate employment if no real operational reasons, therefore, exist.
• Employers cannot abuse the retrenchment process for want of dismissing an employee(s) for reasons other than real operational requirements.
• A process of proper consultation in terms of section 189 must be followed, and not a one-sided process leading to termination of employment under circumstances where such could have been prevented by alternatives.
• The employer and employee(s) must attempt to reach a consensus on the issues as set out in section 189 but cannot be compelled to do so.
• If the employer and employee(s) cannot reach a consensus, the employer has the right to proceed with the process unilaterally but on the basis of still following the “fair” procedure in terms of section 189.
• The employer and employee(s) may agree in terms of a so-called “Separation Agreement” to a contractual termination of employment in substitution of a forced process which may lead to termination of employment.
• The decision to retrench may not have been taken in advance by the employer, and the process, in terms of section 189, used as a “smoke screen” in order to terminate the services of an employee(s) on a pre-determined basis.
• Any number of employees may be retrenched – namely one or more, depending on the operational requirements of the employer.
• If the process leads to termination of employment, the “retrenchment payment to be made by the employer is regulated by the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) – also so-called notice pay.
• Obviously, discriminatory considerations cannot be used for retrenchment purposes, save for “employment equity purposes” regulated by the Employment Equity Act 55 of 1998 (“EEA”) and others.

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.

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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 parties is often dissatisfied with the outcome of the award. Under such circumstances, the dissatisfied party has the right to issue a review application to the Labour Court seeking a review of the award by the Commissioner. A review application to the Labour Court is not “simply for the taking” as the Labour Court will not interfere with a well-reasoned award made by the Commissioner. The Court will only interfere if the Court is of the view that the award is irrational, taking the facts into account.

An award is not a Court order, but if an employer refuses to comply with an award, the employee may have the award certified. In this event, it becomes a Court order for execution against the employer. 

Remedies

As already stated, the CCMA or Bargaining Council has the powers to either reinstate, re-employ and award compensation under appropriate circumstances. Reinstatement is the most effective remedy and will only be granted under exceptional circumstances, where an employee’s dismissal was grossly procedurally and substantively unfair. “Reinstatement” means that an employee is reinstated in their position before their dismissal as of the date of dismissal. Re-employment may be awarded under circumstances where a Commissioner is of the view that the dismissal was unfair to such an extent that re-employment in the same position from a date stated (usually the first day of the month following the month of the award) is made. The dismissal may be found to be grossly unfair, but not to the extent that reinstatement is appropriate. 

An award for compensation is normally made where reinstatement/re-employment is not practicable or under circumstances where the dismissal may be found to be unfair but not so unfair to justify a reinstatement or re-employment. Compensation may also be awarded where the employee may have, in the meantime, secured alternative employment. 

Unfair Labour Practices (as the term indicates) relate to unfair conduct of the employer towards the employee in the workplace – short of dismissal. The Labour Relations Act also defines certain categories of unfair labour practices. Before the enactment of the new Labour Relations Act, the concept of an unfair labour practice was almost “open-ended”, but the new definition in the Labour Relations Act of an unfair Labour Practice is more confined. The CCMA/Bargaining Councils/the Labour Court, however, prefers to interpret an unfair labour practice-wide and not narrowly. 

Labour disputes may appear at face value to be simple. Most persons, even quasi-legally skilled persons or even some lawyers, dare to view labour disputes as simple. They are often met with complex issues that cannot be appropriately managed without the necessary labour skills. It is to be recommended that an employee seeks proper advice from an appropriate legally-skilled person, such as an attorney who is qualified with a specific qualification in the labour field and practices in such area, before commencing with a dispute. At the end of the day, the old saying is “prevention is better than cure”. 

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In South Africa, family law attorneys specialise in various aspects of family-related legal matters, such as divorce, maintenance, child custody and adoption. SB Lawyers proudly offers legal services in family law to ensure our clients have affordable and ethical legal representation. We are here to give you the full rundown on family law and all it encompasses to help you understand the importance of family law attorneys and how they can assist you in resolving family law issues.

What is Family Law?

To be a family law practitioner is to be passionate about people and always act honestly. This is continuously upheld irrespective of the nature of the dispute, as family law is emotionally loaded with the advice given and decisions made that all have an impact on the lives of others.

In the field of law, there are various avenues of law, and each is its own specialisation. With this in mind, qualified attorneys should avoid taking on matters with which they have limited experience. This is especially important in matters of family law that are incredibly intricate, detailed and emotionally loaded.

Family law comprises a broad spectrum of specialities, and often the question arises, what cases fall within the concept of family law? Without being exhaustive, reference to the following is made:

The So-Called “Divorce” Matter:

In attending to a divorce matter, knowing how the parties are married is relevant as an initial step in getting started on the case. This can encompass various options such as in community of property, out of community of property (before 1 November 1984), out of community of property excluding the accrual (after 1 November 1984), or out of community of property with the accrual system.

The marriage regime dictates whether parties share in one another’s estate and, if so, to which extent. If an antenuptial contract is not concluded, the parties are then married in a community of property. If an antenuptial contract was concluded, careful consideration must be given to the wording of the contract as it directly impacts the parties’ respective estates.

It often happens that antenuptial contracts have patent errors, and, in such circumstances, it may result in a court declaring the marriage in a community of property. This can have a detrimental effect and create a significant impact on the dynamics of the case. Antenuptial contracts should, therefore, also be drafted with care by an attorney to ensure that the contract is enforceable and speaks towards the intention of the parties prior to getting married.

During divorce actions, spousal maintenance also comes into play. The question is whether a spouse with a lower income is entitled to life-long maintenance or rehabilitative maintenance. The latter is intended to assist the party receiving the maintenance to be self-supporting at the end of the period of the rehabilitative maintenance. Whilst the court considers an issue of spousal maintenance, it takes various factors into account. This would include the duration of the marriage, the age of the parties, the standard of living, their respective financial obligations and needs and the reasons for the breakdown of the marriage.

The So-Called “Primary Residence” Matter:

Before the passing of the Children’s Act, the term “custody” was used and referred to the parent with whom the child resides. Today, reference is made to the primary residence of a child.

When the primary residence of children or even the extent of contact rights are in dispute, the parents (parties to the divorce) may either agree to appoint a psychologist to assist with an assessment and recommendation. Alternatively, if seen fit, the psychologist can refer the matter to the office of the Family Advocate to investigate and report on the best interests of a child, which includes the primary residence, i.e. where/with whom the child will reside and the extent of contact rights to be exercised by the other parent.

It often happens that an attorney is approached by a parent after the divorce has been granted, seeking an order that the primary residence of their child be amended to reside with such a parent. Whilst this depends on the individual case, an attorney should prepare an application to the court in such circumstances. If opposed by the other party, the attorney should then attempt to either appoint a psychologist by agreement or refer the dispute to the Family Advocate.

The Family Advocate is a state department which assists the court in deciding on the best interests of children. Family Advocates are legally qualified and hold the right of appearance in the High Court. The Family Advocates are assisted by social workers who assist in the investigation and the compiling of reports.

Primary residence disputes demand patience, knowledge and dedication from attorneys.

 The So-Called “Maintenance” Dispute:

The principle is that both parents must contribute to the practical needs of a child pro rata to their respective monthly income. Therefore, it is essential to calculate a child’s reasonable needs, which vary from household to household.

Children are to be maintained until they become self-supportive, and the duty to support does not terminate when a child attains majority at the age of 18.

Disputes On The Rights of Children:

The Children’s Act promotes the rights of children, and the objective of the Act is to safeguard children against maltreatment and ensure that their best interests are served. The Act makes provision for the views and wishes of children to be considered in court matters, provided that the child is of such an age, maturity and stage of development. It often happens that children approach attorneys for legal assistance, and attorneys must satisfy themselves that the child’s views and wishes meet the criteria and remains uninfluenced.

Apart from legal representation, children have the right to be in contact with a parent as well as direct and extended family members. Children also have the constitutional right to be maintained by their parents.

The Act has done away with the old-fashioned saying that children are seen and not heard, in fact, proving quite the contrary with good reason.

Understanding Family Law Attorneys

Family law attorneys are professionals of the legal sphere specialising in handling all legal matters relating to family relationships. Their skilled expertise covers a range of areas within law, such as marriage, divorce, child support and custody, domestic violence, adoption, and more. These legal professionals possess an in-depth knowledge of the South African legal system and are experts in the law and all regulations pertaining to family matters.

Roles and Responsibilities

Family law attorneys hold a vital role within the legal system, playing a crucial role in assisting individuals and families facing legal challenges within the jurisdiction of family law. Just some of the key responsibilities and roles they ordinarily undertake include:

1. Mediation and Negotiation: As may be seen in many cases, family law attorneys have the aim of resolving disputes through the path of mediation and negotiation rather than resorting to immediate litigation. Facilitating communication, family law attorneys work towards finding mutually beneficial and acceptable solutions that prioritise the best interests of both parties involved in a given case.
2. Legal Representation: When litigation is resorted to, respective clients of family law attorneys are represented in court proceedings by their attorneys. Preparing and presenting solid and concrete legal arguments, they advocate for their client’s rights to protect their best interests throughout the legal process.
3. Legal Advice and Guidance: Family law attorneys are a source of expert legal advice and provide guidance to their clients based on their knowledge of South African family law. They help individuals understand their rights, legal options and obligations of the law, thus enabling them to make informed decisions to best navigate their case.
4. Documentation and Paperwork: Matters of family law often involve thorough and extensive paperwork. This includes the reviewing and drafting of legal documentation such as contracts, agreements, and court filings. Family law attorneys assist in preparing these documents accurately to ensure compliance with all legal stipulations and requirements.

Choosing the Right Family Law Attorney

The choice of the right family law attorney for your personal case makes all the difference. It is crucial for achieving a favourable and desired outcome in your respective legal matter. Some factors to consider when selecting a family law attorney would include:

1. Communication and Compatibility: In order to ensure compatibility between you and your attorney, effective communication and a good rapport should be present from the start. Values such as integrity and ethics are vital to ensure the best client-attorney relationship. Make sure your attorney is aware of and attentive to your concerns, responsive and invested in your questions, and able to explain and contextualise legal concepts in a way that you can understand.
2. Affordability: Family law matters can rack up significant expenses as they usually involve substantial costs. With this in mind, it’s important to discuss all factors related to fees and payment upfront with your attorney so that both parties understand what is expected. Affordability should be a concern of the attorney as much as it is for their client, so transparent billing practices and reasonable fees are important considerations to observe.
3. Expertise and Experience: In the case of matters specifically relating to issues of family law, you should look for an attorney specialising within the field of family law. This would ensure that they have substantial experience in handling cases similar to yours. Furthermore, immense familiarity with South African family law’s intricacies, proceedings, and dealings is essential in ensuring the best possible outcome for the matter of concern.
4. Reputation and Track Record: Make sure to do ample research on any prospective attorney’s reputation to ensure you know what you are going ahead with. This can easily be done by reviewing previous client testimonials and their success rate in previous cases, as well as going through online reviews. A solid track record of successful outcomes can instil confidence in their ability to represent you and your matter effectively.

Attorneys You Can Trust

Family law attorneys in South Africa are an integral component of the country’s legal system. They provide invaluable assistance to their clients, individuals in need of legal guidance and families grappling with legal issues related to family matters. When faced with a family law matter, seeking the expert assistance of a qualified and reputable family law attorney is essential for achieving the best possible outcome while minimising any stress and uncertainty.

If you are in need of legal representation you can trust, SB Lawyers is here to stand by you when you need it most. With reputable legal expertise, affordable rates, and ethically-sound moral principles, we continue to provide our clients with quality legal care. Explore our website to learn more, or contact us to enquire about your matter today.

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