I AM AN EMPLOYEE
Dismissed, retrenched, suspended or forced to resign. The Labour Relations Act gives you rights and a limited period in which to exercise them. We act for employees in unfair dismissal, constructive dismissal, unfair labour practice, discrimination and unpaid remuneration matters.
I AM AN EMPLOYER
A fair decision reached through a defective process is still an unfair dismissal. We advise employers on contracts, disciplinary procedure, incapacity, retrenchment and CCMA defence, from the first warning through to the arbitration award.
I NEED CCMA HELP
Nearly every labour dispute in South Africa begins at the CCMA or a bargaining council. We deal with the referral, condonation where a party is out of time, conciliation, arbitration and settlement, and review to the Labour Court where an award is defective.
From the first written warning through to arbitration and Labour Court review.
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Referral to the CCMA must be made within 30 days of dismissal. Obtain advice before the period lapses.
The employer bears the onus to prove a fair reason and a fair procedure. We assess the merits, advise on realistic compensation, and refer the dispute to the CCMA or the bargaining council with jurisdiction.
Where an employer makes continued employment intolerable, a resignation may constitute a dismissal under section 186(1)(e) of the LRA. The merits must be assessed before you resign.
Section 186(2) of the LRA covers promotion, demotion, probation, training, benefits, suspension and disciplinary action short of dismissal. The referral period is 90 days from the unfair act.
We interrogate whether the section 189 consultation was genuine, whether selection criteria were objectively applied, and whether severance, notice and accrued leave were correctly paid.
The Employment Equity Act prohibits unfair discrimination on listed and arbitrary grounds, and prohibits harassment and sexual harassment in the workplace. These claims carry distinct evidentiary burdens and referral routes.
Short payment, unpaid overtime, leave pay, notice pay and unlawful deductions in contravention of the BCEA are enforceable through the CCMA, the Department of Employment and Labour or the Labour Court.
Before signing, your restraint, notice period, probation clause, commission structure and confidentiality undertakings require legal scrutiny. We advise on enforceability, risk and exposure.
Charges must be clear and supported by evidence. We advise on plea, prepare your defence and represent you where the disciplinary code permits representation. Procedural defects are costly to remedy at arbitration.
A restraint is enforceable only if reasonable and necessary to protect a legitimate interest. The restraint letter is not the final word. We assess enforceability, negotiate a release, or oppose urgent interdictory relief.
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.
We draft employment agreements, fixed-term contracts, independent contractor agreements, disciplinary codes and staff handbooks that comply with the BCEA and reflect how the business operates.
Procedural fairness is assessed independently of the merits. We draft the charges, advise on procedure and act as independent chairperson or initiator. A defective enquiry produces a reinstatement order with retrospective pay.
Substantive fairness requires a fair reason and procedural fairness a fair process. The employer must satisfy both. We assess the evidence, the consistency of sanction and the adequacy of the record.
The employer must show that the standard was set and communicated, that evaluation, instruction, training and guidance were given, and that a reasonable opportunity to improve was allowed.
Dismissal for operational requirements requires a genuine joint consensus-seeking process under section 189, with further obligations under section 189A. We manage the consultation through to severance calculation.
We prepare the documentary bundle and the witnesses, appear at conciliation, con-arb and arbitration where representation is permitted, and take a defective award on review to the Labour Court.
A restraint is enforceable where it protects a legitimate proprietary interest and is no wider than necessary in scope, area and duration. We draft enforceable restraints and enforce them urgently.
Allegations of fraud, harassment or grievance require investigation before charges are formulated. We obtain statements 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.
The CCMA adjudicates the majority of labour disputes in South Africa. Referral is free. The process is intended to be expeditious and informal, but time periods are peremptory and awards are binding. We act for employers and employees, and advise upfront where we are permitted to appear.
Jurisdiction is critical. The referral must be directed to the correct forum, against the correct legal entity, and within time. A misdirected referral costs weeks.
Outside the 30 or 90 day period, condonation must be applied for on affidavit, explaining the delay, demonstrating prospects of success and addressing prejudice.
The mandatory first stage. A commissioner facilitates settlement without evidence or record. We determine your settlement parameters and conduct the negotiation.
Where conciliation fails the matter proceeds to arbitration and the award is final and binding. Matters are won on evidence. We prepare the bundle, witness statements and cross-examination, and appear where representation is permitted or granted by ruling.
Settlement value is only one term. A valid agreement must also regulate the reference, confidentiality, restraint and waiver of claims to ensure finality and prevent re-litigation.
An award may be reviewed by the Labour Court within six weeks on the grounds set out in section 145 of the LRA, or where no reasonable decision-maker could reach the decision. Reviews are protracted and expensive.
Thirty days from the date of dismissal for an unfair dismissal dispute. Ninety days from the act or omission for an unfair labour practice. Miss it and you are asking for condonation, which sits in the commissioner’s discretion and is never a given. Deal with it early.
At conciliation, no. In arbitrations about dismissal for misconduct or incapacity it is not automatic either. Either the commissioner and the other side 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 still prepare your bundle, your witness statements and your cross examination.
Two things get tested. Substantive fairness asks if there was a fair reason to dismiss, meaning misconduct, incapacity or operational requirements. Procedural fairness asks if the employer followed a fair process before deciding. Fail either one and the dismissal is unfair.
Reinstatement, re-employment or compensation. Compensation for an ordinary unfair dismissal is capped at twelve months’ remuneration, and at twenty four months where the dismissal is automatically unfair, for example a dismissal for pregnancy, union membership or taking part in a protected strike. In practice most awards land well below the cap.
Both, though never on opposite sides of the same matter. Acting for employers is what makes our advice to employees realistic, and the other way round.
Fees depend on the matter. Book a consultation and you will get the cost of the process and our view on the merits before you commit to anything.
Labour matters run on deadlines. Thirty days to refer a dismissal. Ninety for an unfair labour practice. Six weeks for a Labour Court review. Every week you wait takes an option off the table.
Speak to a labour attorney at MCS about your matter, from either side of the desk.