Areas of Practice
Representation at Arbitration and the Labour Court
Questions are often asked about the application of the Labour Laws, how these laws affect the parties' rights and how does fairness apply to the employment relationship. Links to case law on some labour law topics are provided herein for ease of reference.
The employment relationship should meet the Constitutional requirement that everyone has the right to fair labour practices (section 23(1)).
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Labour law topics:
Parties are bound by the terms of their agreements. An employee who resigns or a settlement agreement could seldom be challenged afterwords. The parties should not sign an agreement without reading it first and should always retain a copy of the signed agreement.
Should a party refer a dispute (including an Unfair Labour Practice or an Unfair Dismissal) it should reach the CCMA (or other designated councils) within the limited time period prescribed.The Employer should attend on the date of the Arbitration.
The parties should structure their employment relationship to meet the minimum requirements of the law. The parties should conclude a written agreement. Employees should acquaint themselves with all the Employer's policies and procedures.
An Employee who leaves the workplace without the Employer's consent, may be guilty of misconduct due to desertion. The Employer should follow a fair disciplinary procedure before terminating the employment, even after the Employee deserted.
A fair disciplinary hearing should precede a misconduct dismissal (which provides the employee with disciplinary charge/s, allow the employee to state his / her case, and advise the employee of the outcome) and to consider mitigating and aggravating evidence prior to applying a fair sanction or penalty.
The Employer should apply progressive discipline and a sanction of dismissal should only be reserved for serious or repetitive infringements of the Employer's rules or standards.
The contract between the parties should be clear whether the person is an Employee or an Independant Contractor. The law regard a person to be an Employee based on the dominant impression that is formed with due regard to the structure of the organisation, the supervision and control over the relationship and the economic dependency of the person.
An Employer should evaluate an Employee and provide the Employee with assistance, guidance or training and then provide for an opportunity for the Employee to state his / her case before a dismissal could be fairly imposed.
An Employer may terminate the employment fairly due to substantively fair reason based on the employer's operational requirements and only after a fair procedure was followed (provide written information (section 189(3), conduct fair consultation regarding: considering fair selection criteria, considering alternatives and considering fair severance pay).
The calculation of the minimum severance pay should form part of the retrenchment consultation and it should be based on the fair application of a formula based on the continuous period of employment and based on the correct calculation of the Employee's salary. The Employee's accrued leave pay and the minimum notice pay should also be paid on termination.
A suspension should be reserved for more serious misconduct. It is no langer required by law to provide an Employee a fair opportunity to state his / her case not to be suspended, before issuing the suspension letter, except if such a provision is included in the Employer's policy.
An Employee may not be unfairly discriminated by the Employer. These reasons include discrimination due to race, gender, social orientation, religion, exct. Employers should also treat sexual harassment reports with great care.
Not every kind of action at the workplace is defined as an Unfair Labour Practice. These practices include, disciplinary action short of dismissal, promotion or demotion, suspension (without salary). The Employee should follow the grievance procedure. A disciplinary hearing for minor misconduct offences should be preceded by fair procedure.
(For more information, visit our section on Labour Law Aid according to court judgements or click these headings. There are a more complete list of labour topics under our Home section.
This section contains summaries of Labour Appeal Court and Labour Court decisions from 1997 until recent (regularly updated). These decisions are organised and grouped according to selected topics. Over 1000 court decisions on employment law principles were specially sourced to serve as aid for H R managers and Employment specialists.)