Labour Law

Labour law facilitates and/or mediates the relationship between employees, employers, trade unions and the government

Labour law

Collective labour law relates to the tripartite relationship between an employee, employer and trade union.

Individual labour law refers to an employee’s rights at work and their conditions of work contract.

Legislation that governs the aforesaid relationships includes but is not limited to:

  • Employment Equity Act 55 of 1998
  • CCMA rules
  • Labour Relations Act 66 of 1995
  • Basic Conditions of Employment Act 75 of 1997
  • The Constitution of the Republic of South Africa 108 of 1996

Hooker Attorneys applies our team’s astute knowledge and understanding of everything from labour law, grievances, disciplinary procedure, and compliance to provide client-centric and on-point solutions.

Our skilled professionals assist clients with:

1. Legal opinions based on employment and labour law
2. Agreements which include, but not limited to, employment and settlement agreements
3. Strikes: dismissal of unprotected strikers, protest action and lock-outs
4. Restraints of trade
5. Retrenchments (Sections 189 and 189A)
6. Unfair labour practices which include  but are not limited to:

a. Unfair suspension
b. Unfair dismissals

7. Dispute resolution which includes but is not limited to:

a. Drafting and reviewing dismissal notices
b. Disciplinary warning and notices
c. Chairing internal disputes

Frequently asked questions

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How do I know if a dismissal is fair?

Substantive fairness (fair reason) and procedural fairness (fair procedure) must be present in order for a dismissal to be constituted as fair.

 

What type of action will be regarded as unfair labour practice and where can I refer an unfair labour practice?
  • This is when an employer’s conduct is constituted as unfair and includes issues related to:

    • Providing benefits
    • Demotion or promotion
    • Disciplinary action short of dismissal

    All disputes generally commence at the CCMA or Bargaining Council, upon referral by either an employer or an employee, depending on the circumstances upon which the dispute arose. Thereafter, it will either be arbitrated at the CCMA or Bargaining Council or will be adjudicated by a Judge at the Labour Court.

What is the Labour Court and its functions?

The Labour Court carries the same status and is equivalent to a High Court. The functions of the Labour Court include, but are not limited to:

  • Granting interdicts to prevent unprotected strikes
  • Making settlement agreements an order of the Court
  • Reviewing and setting aside unsatisfactory arbitration awards
Which disputes must be referred to the Labour Court?
  • Automatic unfair dismissals in relation to, but not limited to, pregnancy, race, sex and age
  • An arbitration award can be referred to the Labour Court in terms of section 145 of the Labour Relations Act to be reviewed and set aside
  • Companywide retrenchments and redundancy of positions
How much overtime can an employer require an employee to work?

An employer may not require an employee to work more than 10 hours overtime a week without prior arrangement. This means an employee may not work more than 12 hours overtime per day.

 

How does the Basic Conditions of Employment Act Work?

The Basic Conditions of Employment Act provides standard terms and conditions of an employment contract unless the law provides more favourable terms and conditions. An example is where a term has been bi-laterally agreed, varied or excluded in negotiations between employer and employee.

 

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Can an employer refuse to pay out an employee’s leave upon termination of employment?

If an employee has been employed longer than four (4) months, section 40 of the Basic Conditions of Employment Act stipulates that any accrued leave on termination of employment must be paid out.

What is retrenchment and when may an employee be retrenched?

Retrenchment is a form of dismissal, whereby the employer engages in a process to review its business needs in an effort to increase profits or limit losses. This could lead to reducing its staff complement through no fault of the employee/s.

It is imperative that the employer provides employees with  fair reasons as to how they reached the decision to retrench the employee/s. Furthermore, a fair procedure should be followed when making such a decision based on operational requirements.

Operational requirements are requirements that include economic, technological, structural or similar needs of an employer, in other words, the ‘business needs’ of the employer.

In terms of procedural fairness, the Court refers to the decision made by the employer and whether the said employer’s reasons for retrenchments were valid and whether same could have been avoided.

This means that retrenchments must be considered only as a last resort.

In addition to the above, what is considered to be a fair procedure for retrenchment?
  • The employer must consult with the employees who are likely to be affected by the retrenchment, or their workplace forum, registered trade union or elected representatives, or any person elected in terms of a collective agreement (“consulting employees”).
  • The employer must issue a written notice inviting the consulting employees to consult and disclosing all the necessary information for such consultation.
  • The employer and consulting employees must engage in a consensus-seeking process on certain matters contained in the notice.
  • The employer must allow the consulting employees to make representations about the matters contained in the notice and other matters relating to the proposed retrenchment.
  • The employer must respond to the consulting employees’ representations. If the employer disagrees with the consulting employees, it must state the reasons for disagreeing with them.
  • The employer must select the employees to be dismissed based on a selection criterion agreed with the consulting employees or a selection criterion that is fair and objective.
  • After the consultation process has been exhausted, the employer may make its decision to retrench, and then issue a notice of retrenchment to the affected employees.
  • The law provides for additional procedures that the employer, employing more than 50 employees, must follow when deciding to retrench.
What is a strike?

To strike is the refusal to work, the slowing down of work or the obstruction of work by employees (strikers).

A strike takes place to resolve a dispute between the employees and their employer. The dispute must be about something in the employer’s control, for example, wages, improved working conditions and other disputes of mutual interest.

While employees have the right to strike, an employer has an option to implement a lock-out. However, these rights can sometimes be limited, for example, if the employees are bound by a collective agreement or are involved with essential services.

What is a lock-out?

A lock-out is the refusal of the employer to grant the employees access to the workplace. This means that the employees are not able to render their services and as a result will not be paid.

A lock-out takes place in response to a strike or to force the employees to accept a demand of the employer. The demand must relate to disputes of mutual interest. The demand of the employer can be, for example, to force the employees to accept changes to their terms and conditions of employment.

 

What are the consequences of a protected strike?
  • Employees may not be dismissed for participating in a protected strike.
  • Employees may be dismissed for causing damage to the property of their employer, or another person at the workplace, during the strike.
  • Employees may be retrenched for operational reasons as a result of the strike.
  • Employees may be arrested and prosecuted for committing a criminal offence during a strike.
  • The principle of “no work – no pay” applies. The employer does not have to pay the employees during a strike. However, the employer has to make payments in kind which include food, accommodation and other benefits such as pension, medical aid and so on.
  • Employers may appoint replacement labour in response to a strike.
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