We specialise in advising, guiding and providing solutions to our clients on all aspects of industrial relations and employment law. We concentrate on any matters which may arise from the outsourcing and insourcing of businesses, the sale and purchase of companies, the restructuring of companies, Department of Labour Compliance Orders, dismissals, retrenchments, discrimination claims, restraints of trade, collective bargaining matters and strike action. We are also able to represent Employers and senior-level employees at the CCMA, Bargaining Councils and the Labour Court.
National legislation mandates how employers may and may not treat their employees. In addition, most industries have their own additional regulations that employers must comply with.
These laws and regulations cover every phase of the employee-employer relationship: applying, hiring, training, working, paying, promoting, disciplining, and terminating the relationship. How do employers, especially small to medium-sized companies, keep up with the ever-changing landscape of employment law? How do employers ensure that their employment decisions will not get them into hot water?
It may seem cliché, but preventative advice and counseling is the best way for employers to keep from accidentally violating labour legislation. We work closely with employers and human resource professionals to help them understand the basics of employment law to keep their businesses compliant.
In the unfortunate position where a claim is made against your business, we are experienced in employment litigation, and can represent you throughout labour department investigations, at bargaining council or CCMA hearings and in the Labour Court.
In these instances, we will prepare the necessary documentation, contact the appropriate authorities, engage with the opposition and represent you at all hearings.
When it comes to representing employees we know that understanding and enforcing your rights in the workplace can be challenging and intimidating. With human resource departments on site, the legal resources available to employers often exceed those available to the individual employee. We understand the legal tactics used by many employers and are able to provide effective advice to employees to help protect their rights.
If you have been wrongfully terminated or if you think you have been the victim of discrimination at work, you should contact an experienced attorney immediately. Our firm can work with you to determine if there are grounds for a claim, assess damages and represent you in all proceedings.
Industrial action, also known as ‘strikes’ can cripple your business. When are they lawful or unlawful, and do you know how to handle them in each instance?
When you anticipate that your business (or a portion thereof) is going to be closed, sold or downsized, certain discussions must be held with your employees. Do you know exactly what must be covered, and when such consultations must take place?
If these contracts are done properly, you will avoid all sorts of headaches down the line. Be proactive and talk to us about amending, updating or including key clauses in your employment contracts to protect your business!
The employee may request the CCMA to resolve the dispute by way of arbitration, which must be attended by the Employer (failing which a decision could be made in the Employer’s absence). At an arbitration hearing both parties (Employer and employee) would be given the opportunity to fully state their side of the case, after which the commissioner will issue a legally binding award.
According to the Labour Relations Act, the employee party must notify the Employer and request the CCMA to arbitrate a dispute within 90 days from the date on which the commission has issued a certificate stating that the dispute remains unresolved.
The CCMA Rules stipulate that a party must use “LRA form 7.13” to refer a dispute for arbitration.
The CCMA Rules provide that the it must give the parties at least 21 days’ notice of an arbitration hearing – unless (1). the parties themselves agree to a shorter period, (2). the CCMA has the capacity to hear the matter sooner, subject to such agreement between the parties, OR (3). The matter involves a compulsory Con-Arb process (see below), in which case the CCMA only needs to provide 14 days’ notice in writing.
The CCMA has specific rules for this, depending on the nature of the dispute. Legal representation is permitted in respect of a wide range of disputes and where it is not automatic, we have successfully applied for such representation on behalf of our clients.
The commissioner would consider the following grounds before making their ruling on legal representation:
The nature of the questions of law raised by the dispute,
The public interest,
The complexity of the dispute, and
The comparative ability of the opposing parties or their representatives to deal with the dispute.
An arbitration award must be issued within fourteen days of the conclusion of the proceedings. The CCMA usually meets this deadline, although the CCMA Director may extend this period on good cause shown.
An employee may enforce the award if the director has certified it. However, if there is an obvious flaw or defect in any arbitration proceedings, the aggrieved party may apply to the Labour Court (within six weeks of receipt of the award), for an order setting aside the award. The Labour Court will then “review” the Commissioner’s decision and hand down its judgment.
It is a one-stop process where Conciliation and Arbitration takes place sequentially on the same day. This means that the Employer must come prepared with all its witnesses. Con-Arb is mandatory for certain specified disputes, such as dismissals and unfair labour practices during an employee’s probationary period.
Only if the dispute is one in which Con-Arb is not compulsory. The written objection must be submitted to the other party and to the CCMA at least 7 days prior to the scheduled.
Facilitation is where the retrenchment consultation process is conducted by a CCMA Commissioner. This arises in circumstances where the employer intends retrenching a large number of its employees, and where the request for a facilitator has been submitted to the CCMA within the specified time frame.
Yes, provided a facilitator has already been appointed and 60 days have elapsed from the date on which the retrenchment notice was given. Alternatively, a trade union (or the employees who have received their notice of termination) may refer a dispute about the “fairness” of the dismissal to the Labour Court.
This is where a preliminary hearing is held at the CCMA on a specific legal point (e.g. whether the CCMA has jurisdiction, or whether a “late” referral will be processed), prior to getting into the merits of the case itself. Some of these preliminary issues are so important that the determination thereof will dictate whether the dispute actually proceeds or falls away entirely.
There are various time frames to refer a dispute to the CCMA. For instance, an employee must refer a dismissal dispute within 30 days of the dismissal. For unfair labour practices it is 90 days. Should a party refer a dispute outside the required time frame, it would first have to ask the CCMA to “condone” its late referral. This condonation application must be supported by an affidavit and address aspects such as the degree of lateness, the reason(s) for the delay, prospects of success and prejudice to both parties.
Yes. A point in limine requires a procedural ruling based on evidence and/or legal arguments.
Rulings have the same status as arbitration awards. They are final and binding. However, a dissatisfied party may apply for rescission or review at the Labour Court.
It is an application to have an arbitration award or ruling overturned or annulled. The ruling or award may be rescinded on the commissioner’s own accord or, on application by any affected party. The grounds for a rescission application are as follows:
If the award or ruling was erroneously made in the absence of any party,
If there is an ambiguity or an obvious error, and
If the award or ruling was granted as a result of a mistake common to the parties.