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.