Your contracts, disciplinary code and policies determine the scope of your authority when misconduct or incapacity arises. Most employers discover the deficiency at arbitration. We draft and audit employment agreements, fixed-term contracts, disciplinary codes and workplace policies before a dispute arises.
A disciplinary enquiry, an incapacity process or a section 189 consultation, live and subject to time limits. We draft the charges, advise the initiator, chair the enquiry independently where required, and ensure the record will withstand scrutiny at arbitration.
A referral has been served and a date has been allocated. We assume conduct of the file, deal with jurisdiction, represent you at conciliation and arbitration, and take a defective award on review to the Labour Court.
Acting for an employee instead? See our employee labour law page.
12 months’ pay
the cap on compensation for an ordinary unfair dismissal
24 months’ pay
the cap where the dismissal is automatically unfair
Reinstatement
the default remedy where a dismissal was substantively unfair
These are the statutory consequences where a dismissal is found to be unfair. Each of them is avoidable. The determining factor is the quality of the process followed before the decision was taken.
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South African labour law places the onus on the employer. Compliance is demonstrated through the contract, the policy and the record of the process followed.
Most disputes originate in a contract that has not been reviewed since signature. We draft employment agreements, fixed-term contracts, independent contractor agreements, disciplinary codes and staff handbooks that comply with the BCEA and reflect the operational reality of the business.
Procedural fairness is assessed independently of the merits. We draft the charges, advise on procedure, and act as independent chairperson or initiator where distance from the outcome is required. A defective enquiry produces a reinstatement order with retrospective pay.
Substantive fairness requires a fair reason. Procedural fairness requires a fair process. The employer must satisfy both. We assess the sufficiency of the evidence, the consistency of sanction against comparable cases, and the adequacy of the record.
Incapacity dismissals fail more frequently than misconduct dismissals. The employer must demonstrate that the standard was set and communicated, that evaluation, instruction, training and guidance were provided, and that a reasonable opportunity to improve was given. We structure the process for poor performance, ill health and long-term incapacity.
Dismissal for operational requirements requires a genuine and meaningful joint consensus-seeking process under section 189, with further obligations under section 189A. We manage the consultation from the written notice through to selection criteria and severance calculation.
On the transfer of a business as a going concern, employees transfer automatically on terms no less favourable, with continuity of service preserved. We deal with the employee component of the transaction, the required notices and the agreement between the old and new employer.
A restraint is enforceable where it protects a legitimate proprietary interest and is no wider than necessary in scope, area and duration. Most are drafted too widely to enforce. We draft enforceable restraints and apply urgently where a senior employee joins a competitor.
Allegations of fraud, harassment or grievance require investigation before charges are formulated. We obtain statements, follow the evidence and produce a report capable of being relied upon at arbitration.
Hours of work, leave, overtime, minimum wage, payslips and Employment Equity reporting. We audit compliance before an inspector from the Department of Employment and Labour does so.
A referral is served with a date allocated by the CCMA. Non-attendance does not suspend the process. Conciliation proceeds in your absence, arbitration may proceed by default, and the resulting award is enforceable as an order of the Labour Court. Deliver the papers to us on the day of receipt.
We assume conduct on receipt. Jurisdiction is determined first, as a material proportion of referrals are misdirected or out of time. We then prepare your answer, your documentary bundle and your witnesses for the allocated date.
The mandatory first stage, and frequently the most cost-effective conclusion. We quantify the matter against the cost and risk of proceeding, and negotiate on that basis. Settlement is often the commercial answer notwithstanding the merits.
Arbitration is conducted on the record and the award is final and binding. We prepare the documentary bundle, witness statements and cross-examination, and appear where representation is permitted or granted by ruling.
Referrals out of time, applicants who were never employees, and disputes falling within the jurisdiction of a bargaining council or the Labour Court. A point properly taken at the outset can dispose of a matter before the merits are heard.
Where the commissioner committed a defect contemplated in section 145 of the LRA, or reached a decision no reasonable decision-maker could reach, the award may be reviewed within six weeks. Review proceedings are protracted and expensive. We advise objectively on prospects.
Unprotected industrial action, picketing in breach of the rules, and breach of restraint. We approach the Labour Court on an urgent basis where delay would defeat the relief.
You will get the referral and a notice of set down with a date on it. Do not sit on it. Conciliation proceeds whether you attend or not, arbitration can run in your absence, and an award made against you is enforceable like a court order. Send us the papers the day they arrive so there is time to prepare rather than react.
At conciliation, no. In arbitrations about dismissal for misconduct or incapacity it is not automatic either. Either the commissioner and the employee agree, or the commissioner rules that representation is appropriate after weighing how complex the matter is and how evenly matched the parties are. In every other arbitration, and in the Labour Court, we appear for you. Where we cannot appear, we prepare the bundle, the witness statements and the cross examination, and your manager walks in ready.
Where a dismissal was substantively unfair, reinstatement is the default remedy and it can come with back pay. A commissioner does not have to order it where the employee does not want it, where the working relationship has become intolerable, where reinstatement is not reasonably practicable, or where the dismissal was unfair only in its procedure.
The standard is lower than for a confirmed employee, but it is not nothing. You still have to have set the standard, evaluated against it, and given instruction, training, guidance and a reasonable chance to improve. Probation is not a window where the LRA stops applying.
Often, yes. Run the arithmetic before the principle. A day at arbitration, the preparation behind it and the management time all cost money you never get back, even when the award goes your way. We give you both numbers and you decide.
Yes, where it protects a real interest such as trade connections or confidential information, and where it goes no wider than it needs to in scope, area and duration. South African courts do enforce restraints. They also strike out the ones drafted to punish an employee rather than protect a business.
It depends on the matter, and on how early you call. A drafting or process review is a fixed piece of work. A defended arbitration is not. Book a consultation and you get the cost of the process and our honest read on your exposure before you commit to anything.
The cheapest labour advice you will ever buy is the call before the disciplinary hearing. The most expensive is the one after the award.
Send us the contract, the disciplinary code and the file, and we will tell you where the exposure sits.