“I have fought many battles in my career as lawyer. With the help of Clive Hendricks I was able to weather the storms and stay the course. When doubt would sink into my thought processes, Clive was there with reassurances, giving me hope each time I needed it. He is a great ally and solid attorney.”
“Ek het Clive Hendricks ontmoet en na konsultasie en met sy regsagtergrond, het ek gerus gevoel om hom aan te stel om die saak te hanteer. Die oggend voor die saak begin het, soos wat ek soggens my stilte tyd met Vader het, het die Here my woord gegee Spreuke: 3: 21-27 en ek het dit met Clive gedeel en sy woorde was “ek sal saam met jou na n oorlog gaan” en God kry al die eer. Ons het gewen. Sedert het ek Clive weer gebruik vir die opstel van n kontrak en verskeie kere vir regsadvies”
“I will definitely be using you, in particular, to fight all my legal battles in future. It was the most stressful period for me and because of your ongoing support and a knack for understanding my needs, I was able to deal with everything”.
“Clive Hendricks is a gifted lawyer. He excels in his ability to see through difficult issues and times. I knew I could count on him when my claim against a big insurance company was rejected. He sorted them out!
“Clive regularly provide expert advice to me and my business. I value his leadership and experience and expect to lean on his wisdom in the future.”
“We have been a client of Clive Hendricks for the past 13 years. It is a long time and the reason why people stay is because of the relationship Clive builds with his clients. It also helps that he keeps winning when we go to court!”
“Clive provided excellent client service and delivered substantial value to our clients in a timely manner. He even went the extra mile by attending to an 80 year client at her house to assist with her a Will. That was outstanding service offered by a senior lawyer in the most trying of circumstances.”
“I thank you for quickly assessing my situation in light of administrative rules, statutes and case law and subsequently providing expert advice. I thank you for holding my hand throughout this ordeal and subsequently securing a positive outcome. I definitely recommend you to anyone.”
“I like Clive’s passion to assist people. It seems these days that money matters more than people. Yes, we all need to make money but I believe if you love what you do, prosperity will follow. Clive understand that. There are not many people of Clive’s caliber and with his integrity”
“I worked with Clive Hendricks on a number of occasions and found him to be excellent on all accounts”
- Legal Costs
How much will you charge to handle my case?
Fees: are the charges (excluding disbursements) raised in respect of legal services rendered in order to give effect to a mandate received.
Disbursements: are monies disbursed on a client’s behalf, and will include (but are not limited to) counsel’s fees, witness fees (including the charges of expert witnesses), travel expenses, sheriff’s charges, e-mail, revenue stamps, courier charges, photocopying faxing charges etc.
Petties: are costs such as, for example, postage stamps and the cost (disbursement, not fees) of phone calls, all of which in the nature of things cannot be monitored or identified with absolute accuracy. These costs will be raised as a separate globular amount on a fees account in addition to our fees from time to time.
I have a range of pricing models to tailor for your specific requirements.
Billing Per Hour: (Exclusive of Vat)
The following hourly rates may be agreed to:
Magistrates Courts and Tribunals:- R2000.00 - R3000.00 per hour
High Courts / Labour Courts:- R4000.00 - R6000.00 per hour
I will charge you a fixed periodic fee (usually monthly) under either a global
retainer covering all your legal work or a specific retainer covering identified
aspects of the work.
The retainer fee may have carve-outs or exclusions. It is calculated to equate to the average value of the work over a long period, so as to smooth out the peaks and
troughs and give you budgeting certainty. The retainer fee is reviewed regularly to ensure that it is pitched at a fair level in relation to the volume or work.
I charge a fixed monthly retainer during the preparation phase of the litigation
(ie. up to but not including the hearing). This is calculated by working out the
likely total costs and spreading that out over the period that we estimate it is
likely to take before the hearing occurs.
I then charge a separate fixed fee per day during the hearing itself. I do this
because the work involved during a hearing is substantially greater and more
intensely concentrated than during the preparation phase. This way, I protect you from paying for the most expensive aspect (the hearing) if I help you to achieve an earlier settlement.
Fixed fee litigation:
I charge a fixed fee for the litigation matter, which is payable regardless of
the outcome. This may be attractive in cases where there is a high likelihood that
they will "go all the way" (i.e. to a final hearing). It provides certainty as to cost.
Fixed and Capped Fee:
I will quote and stick to a fixed fee for any transaction or other piece of legal work at your request. Alternatively, I will quote a capped fee which we will not exceed.
Contingency Fee Agreement:
Our law allows for contingency fee agreements. In the event of a “win”, the success fee to be charged may be up to twice the agreed upon normal fee, capped at a maximum of 25% of any monetary amount you are awarded or recover.
Therefor if, for example, you are awarded R1m and the normal fee would amount to R100,000, you can be charged up to R200,000 (twice the normal fee). But if the normal fee would be R150,000, you cannot be charged R300,000 (twice normal fee) but only up to R250,000 (hence, 25% of R1m).Time Limits
What are the time limits for lodging an employment claim or dispute?
NATURE OF COMPLAINT TIME PERIODS Unfair Dismissals 30 days from the date of dismissal Discrimination Within six (6) months of the date of the act or omission Arbitration Within three (3) months from the date on which the Commissioner issued the Certificate of Outcome Unfair Labour Practice Disputes Refer this disputes within 90 days of the perpetration of the unfair labour practice or 90 days from becoming aware of the unfair labour practice Rescission of an Award Application for the rescission of an award or ruling must be made within 14 days of becoming aware of the award or ruling Review of an Award The party who alleges a defect in an award must apply to the Labour Court to set the award aside within six weeks of the award being served on him/or Referral to Labour Court If the CCMA rules that a party must refer the dispute to the Labour court s/he must do so within 90 days from the date of the rulingRemuneration
What is remuneration and how is it calculated?
The BCEA defines remuneration as any payment in money or in kind or both, made or owing to any person in return for that person working for the employer. This may include benefits paid to the employee over and above basic salary.
What is meant with Wage?
This is the amount of money paid or payable to an employee in respect of the ordinary hours of work (45 per week or 9 per 5 day week or 8 per 6 day week) the employee works per week or per day.
What to do when an employer refuse to pay a due salary after the employee resigned?.
The Basic Conditions of employment Act allows only certain deductions from salary for debt and damages caused to the employer. The employee must have agreed to the deduction. A refusal to pay salary is breach of contract and contra to the BCEA.
If the employee earns below the income threshold a complaint can be lodged with the department of labour. The employee can also institute a civil claim for damages or he/she can refer a dispute to the CCMA in terms of the BCEA.
What can an employer deduct from my salary?
Section 34 allows only certain deductions from salary for debt and damages caused to the employer. The employee must have agreed to the deduction. The employer may not deduct more than 25% of the employee’s remuneration at a time.
What is notice pay?
Notice pay is the amount of money an employer can pay an employee in lieu of notice when the employee’s service is terminated. This is regulated by contract or by section 37 of the BCEA.
Notice pay is one week for six months or less; two weeks for 6 months to a year and one month if the employee has been employed for 1 year or more.
How long does the company have before they have to pay you after last day worked?
The employer must pay within 7 days of the last working day.
Can an employer recover the outstanding balance of a loan made to the employee during employment?
Yes, the employer can enter into an agreement with the employee to repay the loan, the payment must be agreed to in writing and cannot be more than 25% of the remuneration of the employee. The employer can also institute a civil claim for damages.
Can an employer withhold a certificate of service?
The BCEA, section 42 does not allow for an employer to withhold a certificate of service.Resignation
What notice periods are applicable when you tender your resignation?
During the first six months of employment, the statutory notice period is 1 week. During the second six months of employment, it is 2 weeks, and thereafter it is 4 weeks.
hese periods may be varied by the employer in a contract of employment or agreement, provided that the same notice period agreed upon also applies to the employer.
When can I give notice of resignation?
The Act stipulates that the notice of termination of a contract of employment must be given in writing. The Act further stipulates that notice of termination of a contract of employment given by an employer may not be given during any period of leave to which the employee is entitled - meaning that the employer may not give an employee notice of dismissal or termination of contract while the employee is on annual leave, maternity leave, or family responsibility leave.
There is no provision in the Act which prohibits the employee from giving the employer notice of termination whilst the employee is on any period of leave to which he is entitled. The employer is permitted to give the employee notice of termination or dismissal whilst the employee is on sick leave. The employer may not insist that an employee must proceed on annual leave during any period of notice, and the employee is prohibited from taking annual leave during a period of notice.
Under certain circumstances, the employer may terminate a contract of employment without notice. There is no provision in the BCEA which entitles an employee to terminate a contract of employment by resignation, without notice. The exception to this may be where the employer has created an intolerable working condition, and the employee has made a decision to resign and leave the premises immediately, and register a dispute of constructive dismissal at the CCMA.
Can you give 24 hour notice?
Giving the employer 24 hours’ notice is unlawful and should the employee act in that manner the employer would be entitled to sue the employee for breach of contract.
Can you pay the employee instead of notice?
Should an employee give notice of resignation, or should the employer give notice of termination of contract or dismissal, and the employer requires the employee to leave the premises immediately, the employer is still obliged to pay the employee for the full period of notice given by the employee.
Should an employee give notice of resignation, but the employee requests to leave the employment immediately, then the employer has the right to grant that request, but then the employer is not obliged to pay the employee for the period of notice given.
What payments can I expect when I resign?
Generally, upon resignation or dismissal, an employee is entitled to be paid:
- the notice pay where applicable;
- salary up to last day worked;
- any outstanding leave pay.
Bonuses are normally payable pro rata, but this will depend on the employer's bonus payment policy, and any other bonus payment agreements which may be contained in a contract of employment or collective agreement. Accrued retirement fund benefits will also become payable to the employee in terms of the rules of the fund.Restraint of Trade Agreement
Can my employer prohibit me from taking up employment with a competitor?
Restraint of Trade Agreements are not regulated in terms of labour legislation. The employer will usually require an employee to sign a Restraint of Trade agreement where the employer feels it necessary to restrain the employee party or limit the employee party in his employment activities should he leave the service of the employer.
A restraint requirement would arise where the employer needs to protect:
- his economic interests;
- trade secrets;
- secret formulas;
- price lists;
- customer database information, etc.
The rationale behind a restraint is the need to take certain action to ensure that information will not fall into the hands of a competitor if the employee leave his service and take up employment with a competitor.
The restraint usually prohibit the employee from taking up employment with a competitor, or supplier, or customer of the employer:
- within a certain geographical area or within a certain radius of the employer's premises; and
- for a certain period of time after the employee leaves the service of the employer.
The Restraint of Trade agreement must be reasonable in terms of the protection sought, and the applicable terms and conditions as to the geographical area and time period. In determining the legality and enforce ability of such an agreement, factors that will be considered include:
- the nature of the restricted activity;
- the geographical area applicable;
- the period of time for which the agreement is applicable; and
- the particular interests which the employer is seeking to protect.
Employees should not sign such restraints without first obtaining professional advice, by consulting an attorney who specialises in the Law of Contract or Employment Law, to assess the agreement.
Protection of information in the context of restraints was assessed in the cases Reddy v Siemens Telecommunications (Pty) Ltd and Digicore Fleet Management (Pty) Ltd v Steyn.UIF
When can an employee claim benefits in terms of the Unemployment Insurance Fund?
Employees can claim UIF when their employer is insolvent, their service contract expired or they have been dismissed by their employer:
- The Unemployment Insurance Act (act 63 of 2001)and the Unemployment Insurance Contributions Act, 2002 is applicable on all employers and employees with the exclusion off the following persons:
- If you work less than 24 hours per month for an employer/
• Foreigners (no SA citizens) who are working here on fixed contracts
whose contracts have expired and who must now return to their country of origin.
Employees who currently receive an older person grant are since 7 February 2007 no longer exempt to contribute to the Fund. You will therefore have to contribute to the Fund and will be able to claim from it. Remember that you can’t claim from the UIF if:
- You are already receiving benefits from the Compensation Fund.
- Your benefits have been suspended due to fraud.
• You resigned from your place of employment.
• You don’t report for work on the designated time or place.
• You refuse to accept training or advice.
What is the amount of contribution?
- A contribution to the UIF is made monthly.
- Employees pay 1% of their salary and employers contribute another 1%.
- For example: a domestic worker earns R1700 a month. S/he must contribute R17 to the UIF and the employer must contribute another R17 to the UIF.
- It is the employer's responsibility to deduct 1% from the employee's salary (R17) and pay it, together with his/her 1% contribution (R17), to the UIF (totalling R34).
- An employee who earns more than R14 872 a month will not contribute more than R148.72 a month.
- There is no tax payable on the contribution or the benefit received.
How much money can be claimed?
- A contribution to the UIF for 4 years or more entitles a claim for up to 238 days (34 weeks). A shorter period entitles an employee to claim 1 day for every 6 days worked.
- Maternity leave allows a claim of only 121 days.
- The UIF pays a percentage of the salary earned. The highest amount that can be paid is 58% of a salary earned per day.
- Employees can claim from the day they stopped working until their benefits are used up or they start working again.
How to claim from the UIF?
- Step 1: an employee must contact the Department of Labour to get the necessary documents depending on the type of claim. Employees must claim within 6 months after they stop working.
- Step 2: the employee must go to the nearest Labour Centre to hand in the documents. Staff at the Labour Centre will assist an employee with the processes and will give advice.
- Step 3: an employee must follow the instructions of the staff, for example, the staff might request an employee to attend training.
When can the UIF refuse to pay benefits?
- Due to fraud, resignation, the employee accepts another job, s/he does not report at set dates and times or refuses to go for training or accept advice, or if benefits are claimed from the Compensation Fund or an Unemployment Fund under the Labour Relations Act.
What happens if there is a dispute regarding payment of benefits?
- If the Commissioner of the UIF or a claims officer rejects a claim for benefits, an appeal can be lodged with the Regional Appeals Committee by sending the prescribed appeal form to the UIF's head office.
- If an employee is not satisfied with the Regional Appeals Committee's decision s/he can appeal to the National Appeals Committee.
What is the Employment Equity Act (EEA) about?
Employment Equity deals with the duty of employers to find and eradicate unfair discrimination in the workplace and to ensure equity and equality in the workplace of all designated groups.
This is achieved through affirmative action (AA) measures which are consistent with the EEA (Employment Equity Act)
What is unfair discrimination?
Section 6 defines unfair discrimination. No employer may unfairly discriminate, directly or indirectly against an employee in any employment policy or practice on one or more ground listed in the section or on any other arbitrary ground. It is also unfair to distinguish between salary or benefits of employees for any discriminatory ground such as race, gender or disability.
Where can I claim for unfair discrimination?
Employees can refer a dispute to the CCMA in the area where the employee is employed, for unfair discrimination or harassment. If the dispute remains unresolved it will either be adjudicated at the CCMA through arbitration or must be referred to the Labour Court.
To whom does the EEA apply?
The EEA is written for employers and employees, and an employment relationship must thus exist for the Act to apply. The EEA applies to all employers when dealing with discrimination, whether you have one employee or more. With regard to affirmative action the EEA applies to Designated employers and Designated employees. All employers are covered, only the Defence force, National Intelligence and the Secret Service are excluded. NGO’s or voluntary organisations or schools or a crèche will also be covered, as long as they comply with the definition of “Designated”.
Does the Employment Equity Act (EEA) apply to me as an employee?
The EEA applies to Designated Groups. It includes Black, Coloured, Indian male and females, White females and Disabled people. Foreigners are excluded unless they became citizens on or before 27 April 1994 or were entitled to become citizens on this date had it not been for apartheid.
Does the Employment Equity Act (EEA) apply to me as an employer?
No employer may discriminate against employees in terms of section 6 of the EEA. Section 3 applies to Designated employers. An employer becomes a Designated employer when it employs 50 or more employees, or if fewer than 50 employees has an annual turnover that is equal to or above the turnover set out in schedule 4 of the EEA.
Excluded are the Secret Service, the National Defence Force and the National Intelligence Service.
What is the duty of the Designated Employer?
Section 6 defines unfair discrimination. No employer may unfairly discriminate, directly or indirectly against an employee in any employment policy or practice on one or more ground listed in the section or on any other arbitrary ground. It is also unfair to distinguish between salary or benefits of employees for any discriminatory ground such as race, gender or disability.
What is the difference between “equity” and “equality”?
Equity and equality deals with the different principles of the EEA. “Equity” is a principle of the EEA which determines that every person is entitled to equitable treatment in the workplace. "Equality” deals with being equal.
What is meant with equality in the EEA?
All employees are entitled to be equally representative in the workplace.
How do I as an employer start with Employment Equity in my company?
The process starts with information sharing and disclosure to employees. The summary of the act (EEA3/2014) must be displayed in the workplace and the employer must then ask the employees to complete EEA1 form.
What information must I give to my employees?
The Designated employer must display a summary of the EEA as contemplated in section 25(1). This document is contained in EEA3. b. The employer must also display, the report, the plan, any compliance order, undertaking and arbitration award or labour court order at a prominent place.
What is an employment equity plan?
The EE Plan is the plan of the employer, flowing from the analysis process in terms of which the employer plans to address barriers and to implement affirmative action measures to achieve equity and equality in the workplace.
What is required with consultation?
Section 16 requires Designated employer to take reasonable steps to consult and attempt to reach agreement on the matters referred to in section 17. Matters for consultation are the conduct of the analysis, the preparation and implementation of the EE plan and the report.
What is required with analysis?
The employer must analyse the profile of the workforce and the discriminatory practices to determine the degree of under representation of Designated groups.
How and where must the employer report?
The Designated employer must report to the Director General of the Department of Labour and address reports to the Employment Equity Registry, Department of Labour, Private Bag x117 Pretoria, 001, or submit electronic reports to the website of www.labour.gov.za/
What happens if I do not reach my targets?
There is no fine for not reaching a target, however the DOL can review the EE process of the employer and make recommendations or give compliance orders.COIDA
What are the injury on duty reporting procedures?
- The employee has to report the accident to the employer as soon as possible after such accident has happened - Section 30 of the Compensation for Occupational Injuries and Diseases Act. If notice is not given to the employer/ Compensation Commissioner within 12 months after the date of accident the employee forfeits his right to compensation, as the claim cannot be considered in terms of the Act.
- Should the employer fail to report the accident the employee has to complete a Notice of Accident and Claim for Compensation (W.Cl.3)
- The employee must assist the employer in obtaining the medical reports as the employee has chosen the doctor, sees the doctor regularly and it is his (the employee's) case that has to be finalised.
- The employer has to report the accident in the prescribed manner - i.e. by completing the Employer's Report of an Accident (W.Cl. 2). The act requires that an accident be reported by the employer to the Compensation Commissioner within 7 days after the accident took place.
- Part B of the Employer's Report of an accident (W.Cl.2) is a carbon copy of Part A and should be handed to the employee to give to the doctor/hospital/chiropractor who is going to treat him. If an employer fails to report the accident, the doctor can report the case by sending a copy of Part B to the Compensation Commissioner. The employer will then be subpoenaed to submit Part A.
- Obtain First Medical Report (W.Cl.4) from the treating doctor - medical evidence plays an important part when liability for the compensation and medical expenses is considered.
- Obtain Progress Medical Reports (W.Cl.5) - when an employee is receiving prolonged medical treatment and is off duty as a result of injuries sustained in an accident, progress medical reports should be submitted on a monthly basis to the Compensation Fund to ensure that compensation in respect to temporary total disablement is paid timeously.
- Final Medical Report (W.Cl.5) - should be submitted as soon as the employee's condition has become stable. The doctor has to describe the impairment of function as a result of the accident, if any, to enable the Fund to assess the permanent disablement, if any.
- Resumption Report (W.Cl.6) - the form has to be completed by the employer immediately after the employee has resumed work. Where an employee is booked off duty for a lengthy period, interim reports must be submitted.
- Employee's banking details form should be submitted - should the claim qualify for any compensation, this form will be used to verify the claimant's banking details.
What is the difference between ‘substantive fairness’ and ‘procedural fairness’?
- Was there a fair reason to dismiss the employee?
- Was dismissal appropriate under the circumstances?
The employer must have a proper and fair reason for dismissing the employee.
A ‘fair’ reason can be one of these:
- Misconduct (the employee has done something seriously wrong and can be blamed for the misconduct.
- Incapacity (the employee does not do the job properly, or the employee is unable to do the job due to illness, disability or lack of skill)
- Retrenchment or redundancy (the employee is cutting down on staff or restructuring the work and work of a particular kind has changed.
Was there a fair procedure before the employee was dismissed?
- The employee must always have a fair hearing before being dismissed. In other words, the employee must always get a chance to give his/her side of the story before the employer decides on dismissal.
- If the employee feels the dismissal was unfair, either substantially or procedurally, then this can be referred to the CCMA for conciliation and thereafter arbitration if this is necessary.
What constitutes dismissal?
- An employer terminates a contract of employment with or without notice
- A contract employee whose fixed-term contract is suddenly ended or renewed on less favourable terms, where the employee expected the contract to be renewed because it has often been renewed or because an expectation exists that the employment will be ongoing.
- A woman who is not taken back into her job after maternity leave.
- An employer dismisses a number of employees for the same reason (for example for being on strike) and offers to re-employ one or more but not all.
- An employee who was forced to walk out or resign because the employer made the working environment impossible to tolerate.
- The employee leaves his or her work (with notice or without notice) because a new employer has taken over the business and is not paying the employee the same wages and conditions of employment he/she enjoyed before.
- Employees have been retrenched. The employer must pay the employee severance pay of at least one week’s remuneration for every full year the employee worked for the employer. The payment must include the value of payment in kind. So the employee must get wages for the hours worked, plus any leave pay, plus notice or payment in lieu of notice, plus severance pay.
Employees in these circumstances are entitled to fair dismissal reasons and fair dismissal procedures under the Labour Relations Act. An employee could claim unfair dismissal through the CCMA or relevant Bargaining Council.
When can an employee be dismissed for misconduct?
Dismissals for misconduct will only be fair if:
- The employee broke a rule in the workplace
- The rule was reasonable and necessary
- The employee knew of the rule, or should have known of the rule
- The employer applied the rule consistently
- It is appropriate to dismiss the employee for this reason, rather than taking disciplinary action or imposing a lesser penalty, such as a final warning.
Employees should not be dismissed due to minor mistakes, or for a first offence, unless it is very serious such as gross insubordination or dishonesty, intentional damage to the employer’s property, putting others’ safety at risk or physical assault of a co-employee.
Before deciding to dismiss the employee for misconduct, the employer must consider:
- the employees circumstances (for example length of service, previous disciplinary record and personal circumstances)
- the nature of the job
- the circumstances in which the misconduct took place.
Employees must keep records for each employee and if there is repeated misconduct the employer must give the employees warnings. A final warning for repeated misconduct must be given in writing.
There must be a fair hearing:
- if the employee is a shop steward the employer must first inform the union.
- the employee must know in advance what the charges against him or her are.
- the employee must be given enough time to prepare for a hearing.
- the employee must be present at the hearing and be allowed to state his/her case.
- the employee must be allowed to be represented at the hearing by a co-worker or shop steward.
- the employer must bring all the witnesses against the worker to the hearing.
- the employee should be allowed to call witnesses.
- the employee must be given reasons for any decisions taken.
- Unfair Dismissal
What steps can you take if you have been unfair dismissed?
If an employee thinks the dismissal was unfair, in other words that the employer didn’t follow fair procedures or there is not a ‘good reason’ for the dismissal, then the employee challenge the dismissal by referring a dispute to the CCMA or Bargaining Council. If the dismissal is found to be unfair, the employee will may be reinstated or re-employed, and/or receive compensation.
- means the employee gets the job back as if he/she was never dismissed.
- means the employee gets the job back, but starts like a new employee.
the employee is likely to get compensation if:
- The employee does not want the job back;
- The circumstances surrounding the dismissal would make the relationship between the employer and employee intolerable;
- It is not reasonably practical for the employer to take the employee back;
- The dismissal is unfair merely because the employer failed to comply with a fair procedure but there was good reason for dismissal (procedural or substantive unfairness).
The employee can get up to 12 months wages as compensation for unfair dismissal.
If it was an automatically unfair dismissal the employee could get up to 24 months wages as compensation.Retrenchment
What constitutes retrenchment or redundancy dismissal?
An employee is allowed to retrench employees for ‘operational requirements’ based on the employer’s ‘economic, technological, structural or similar needs’
What does Operational Requirements mean?
Section 213 of the Labour Relations Act defines operational requirements as “requirements based on the economic, technological, structural, or similar needs of an Employer”.
When may an Employer terminate the services of an Employee?
Once the Employer contemplates retrenchments it must prior to making a decision advise and consult with the employees or their designates and follow the provisions contained in Section 189 of the Labour Relations Act, which provides that the Employer must:-
- Determine which employees will be affected by the proposed termination;
- Consult with any person who represents the affected person in terms of a collective agreement, registered trade union or workplace forum (Section 189 (1));
- Issue a written notice calling on all the affected persons (employees) or any other consulting party to consult with the Employer, as well as disclosing in the notice all relevant information to the proposed dismissals, including:
- the reasons for the proposed dismissals;
- alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
- the number of employees likely to be affected and the job categories in which they are employed;
- the proposed method for selecting which employees to dismiss;
- the time when, or the period during which, the dismissals are likely to take effect;
- the severance pay proposed;
- any assistance that the employer proposes to offer to the employees likely to be dismissed;
- the possibility of the future re-employment of the employees who are dismissed;
- the number of employees employed by the employer; and
- the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months.(Section 189 (3))
- During the consultation process the Employer and consulting parties must attempt to find any possible alternatives to avoid the dismissals, limit the number of dismissals, change the timing of the dismissal, and mitigate the adverse effects of the dismissals (Section 189 (2));
- The Employer must allow the Consulting party the opportunity to make any representations relative to the proposed dismissals which the Employer will have to consider and respond to, giving reasons for its decisions (Section 189 (5) and (6)).
- The Employer is also obliged to consult on the issue of severance pay for the affected employees during this time.
What are the selection criteria for retrenchments?
The Employer is obliged to follow LIFO by job category and where the Employer seeks to depart from LIFO to retain skills it must be prepared to justify its decision.
What alternatives to dismissal may be raised by an affected employee?
The circumstances of each case will indicate the alternatives an affected employee may raise and which an employer must consider and respond to. If an employer does not consider the alternatives raised by an affected employee the dismissal could be classified as substantively and/or procedurally unfair. Examples of alternatives to dismissal would be:
- decreasing an employee’s salary or wages,
- utilising an employee elsewhere in the workplace,
- developing the skills of the affected employee, or
- re-instating an affected employee with less responsibility and functions.
What severance pay is an employee entitled to if dismissed?
If an employee’s services are in fact terminated and the affected employee is retrenched, they will be entitled to:
- one week’s wages per completed year of service with the Employer as severance pay.
Where an Employer has set a precedent in paying for example two weeks wages for each completed year of service it would need to justify the departure from that precedent.
The consultation process is a ‘joint consensus seeking’ process. In other words the parties try and reach agreement on the different issues.
If employees and the employer cannot agree, disputes over the procedures for retrenchment can be referred to the CCMA for conciliation and thereafter the Labour Court. If the retrenchment involves a single employee, the employee can challenge the fairness of the dismissal at the CCMA rather than the Labour Court, if he or she wishes. A dispute about the amount of severance pay may be finalised at the CCMA through arbitration.Incapacity
When can an employee be dismissed for incapacity?
A dismissal for incapacity can be for poor work performance, physical disability or ill health or incompatibility/unsuitability. When deciding whether a dismissal for incapacity was fair or not, the following must be considered:
- whether the employee failed to work to a required standard
- whether the employee was aware of the standard
- whether the employee was give a fair chance to meet the standard.
- whether the dismissal is the appropriate outcome for failing to meet the standard
- whether the incapacity is serious and what the likelihood is of an improvement
- whether the employee could be accommodated in an alternative position should one be available.
Dismissal for poor performance will only be fair if the employer:
- has given the employee proper training, instructions, evaluations, guidance and advice
- assessed the employees performance over a reasonable period of time
- investigated the reasons for continued poor performance
- investigated ways of solving the problem without resorting to dismissal
- gave the employee a chance to be heard before deciding to dismiss
- considered employing the employee in an alternate and appropriate decision should one be available
Dismissals due (temporary/permanent) ill health or disability will only be fair if the employer:
- investigated the degree and duration of the injury or incapacity.
- considered ways of avoiding dismissal for example getting a temporary employee until the sick employee is better
- tried to find alternative work for the employee to do
- tried to adapt the work so the employee could still do it
- gave the employee the chance to be heard before deciding to dismiss.
How ill or disabled the employee is (degree of incapacity) and for how long he/she is likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered in deciding whether the dismissal was fair or not.Automatic Unfair Dismissals
What constitutes an automatically unfair dismissal?
The following reasons for dismissal are invalid. The dismissal will be regarded as automatically unfair if the worker was dismissed for:
- exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.
- taking part in lawful union activities.
- taking part in a legal strike or other industrial action or protest action.
- refusing to do the work of someone else who is on strike.
- being pregnant, or any reason related to pregnancy.
- refusing to accept a change in working conditions.
- reasons that are due to arbitrary discrimination.
- a reason relating to a transfer following a merger of the company with another organization.
Rescission and Review
- where an employee is dismissed following a disclosure made by him/her in terms of the ‘Disclosure of Information Act’
What is the difference between Rescission and Review?
A rescission application is lodged with the CCMA or a Bargaining Council to:
- rescind, or
- or set aside an arbitration awardmade by a commissioner.
Either the employer or the employee may lodge an application to rescind or review an award. The party who apply to have the award or ruling of a commissioner set aside must provide good reasons / grounds for making the application. The application consist of affidavits and other supporting documents which must be served on other party.
The CCMA will appoint a commissioner to consider the rescission application. The commissioner will listen to both parties before making a written rescission ruling, which will either rescind (set aside) the original award or confirm the original award. If the award is rescinded, the matter will start afresh usually before a different commissioner.
A review is lodged at the Labour Court by either party to an arbitration award who wishes the Labour Court to overturn the award. Similarly, it is done on affidavit and supporting documents. The Labour Relations Act sets out the grounds on which a party may bring a review application. The reasons / grounds generally refer to the misconduct of the commissioner, for example he / she did not apply the law or her mind properly, took a bribe, made an award beyond her / his powers, etc.
If the Court sets the award aside on review – the dispute is usually sent back to the CCMA for a different commissioner to rehear the matter but the Labour Court may also simply make a different arbitration award for the parties. Alternatively, the Court will confirm the award, which then continues to remain final and binding.Conciliation
What is conciliation?
- Conciliation is a process of bringing the two sides in a dispute together after they have reached a deadlock. ‘Deadlock’ means that after trying to negotiate, they still can’t resolve the problem. In conciliation, an independent third party is used to mediate between the two sides. Under the Labour Relations Act, the moderator is a Commissioner from the CCMA or Bargaining Council.
- If there is a Bargaining Council covering the sector that the employer works in the dispute will be referred to the BC, and if there is no BC the dispute must be referred to the Commission for conciliation, mediation and arbitration (CCMA)
- At the conciliation meeting, the commissioner meets with the two parties to the dispute to find ways to settle the dispute to everyone’s satisfaction. The employer and employee are free to agree to any solution to settle the dispute at a conciliation meeting. A certificate will be issued by the commissioner at the end of the meeting to say whether the dispute has been settled or not. The commissioner must try to resolve the dispute within 30 days of it being referred to the CCMA or Bargaining Council.
- If the conciliation is successful, an agreement is reached which both parties must follow. If either party breaks the agreement, the other party may apply to the Labour Court to have the agreement made into a court order.
- Employees may be represented by a co-employee, or a trade union office bearer or official. The employer can be represented by an employee of the business or by a representative of an employer’s organisation. Attorneys are not permitted, although it will be to your benefit to consult with a labour lawyer before the CCMA hearing.
What happens if attempts at conciliation are unsuccessful?
If the two parties cannot reach an agreement, or the employer refuses to attend the conciliation meeting, the commissioner will issue a certificate stating that the matter has not been resolved.
Each party can then refer the matter for arbitration at the CCMA or adjudication at the Labour Court depending on the nature of the dispute.
Disputes over these matters are referred to the CCMA or Bargaining Council for arbitration:
- Unfair labour practices that do not involve discrimination.
- Dismissals for acts of misconduct (the employer says the employee did something wrong)
- Dismissals for incapacity (the employer says the employee can’t do the work properly)
- Severance pay
- Disputes concerning organizational rights for a trade union.
- Alleged unfair retrenchment where the retrenchment involved an individual employee.
- Breach of a collective agreement
Disputes over these matters are referred to the Labour Court for adjudication:
- Certain disputes that involve discrimination
- Certain retrenchments
- Automatically unfair dismissals
What is arbitration?
- Arbitration means the two sides (or parties to the dispute) agree to use a third party to settle a dispute. A third party is someone who is not from the unions or employer’s side. The arbitrator acts as a judge to decide the dispute.
- Under the Labour Relations Act, the arbitrator is a commissioner form the CCMA or Bargaining Council. After hearing what both parties have to say, the commissioner can make a ruling that is legally binding and must be accepted as both parties.
- If the commissioner decides that the employer was wrong, the commissioner can order the employer to take certain steps or to pay compensation.
- Employees can only be represented by a fellow employee, a lawyer where the case does not involve misconduct or incapacity dismissal, union official or union office bearer. Employers can only be represented by a lawyer where the dispute is not a misconduct or incapacity dismissal, an employee of the business, or a representative from an employer’s organisation.
- In cases involving dismissal for misconduct or incapacity, lawyers are not allowed unless the commissioner specifically allows this.
- Legal Aid will only be granted to an employee in cases where the Labour Relation Act allows for lawyers to be present, and cases where the commissioner specifically allows lawyers.
Can either party appeal against an arbitration award?
There is no appeal against an arbitration award.
But either party may ask the Labour Court to review the arbitrator’s decision, if they think:
- The arbitrator exceeded his or her powers
- There was something legally wrong in the proceedings
- The arbitrator did not consider relevant issues in accordance with the law.
They must ask for a review within 6 weeks of receiving the arbitration decision.
How much compensation could I be ordered to pay if I dismissed my employee unfairly?
The LRA distinguishes between different compensation awards on the basis of the type of unfair dismissal:
- If the reason for the dismissal was fair, but the procedure was unfair, then the compensation must be equal to the salary the worker would have received for the period between the date of the unfair dismissal and the last day of the arbitration. The salary must be calculated in accordance with the worker’s salary as at the date of the dismissal. If the worker has delayed unreasonably in making his/her claim, then compensation then compensation cannot be ordered in respect of the period of unreasonable delay.
- If the dismissal is automatically unfair then the compensation must be fair in all the circumstances, but equal to not more than twenty-four months’ salary.
Protection Disclosure Act
- If the reason for the dismissal was not a fair reason based on the worker’s conduct or capacity, or the employer’s operational requirements, then the compensation awarded must be fair, but not equal to more than twelve months of the worker’s salary.
What protection is there for employees who reports misconduct / fraud / corruption?
Employees has a duty to report misconduct in the workplace to their employers. To protect employees against reprisals or detriment parliament enacted the Protected Disclosures Act, No 26 of 2000 (“PDA"). The PDA defines an occupational detriment as being subjected to:
- disciplinary action;
- being dismissed;
- suspended, demoted;
- harassed or intimidated; or
- being transferred against your will because of the disclosure.
A protected disclosure is defined in the PDA as disclosure made in good faith in accordance with any procedure prescribed, or authorised by the employee's employer for reporting the impropriety concerned. Where there are no procedures, for reporting, the PDA provides that the disclosure should be made to the employer.
In terms of the above it is clear that the PDA is an attempt to encourage employees who are suspicious of any untoward activity in the workplace and who can prove it to disclose this to the employer. Section 191(13) of Labour Relations Act provides in that in the event that an employee is subjected to an occupational detriment the employee can refer the matter to the Labour Court for adjudication.
The idea then is that in the event that an employee makes a protected disclosure in the workplace, he should not, in terms of this Act, have to face disciplinary proceedings or face dismissal or suspension as a result of having made a protected disclosure.
See Grieve v Denel  4 BLLR366 (LC) and CWU v Mobile Telephone Networks (Pty) Ltd  BLLR 741 (LC) for examples of how the Courts applied the PDA.Constructive Dismissal
What can the employee do when the employer makes working conditions intolerable?
Constructive dismissal means the employee resigns and claims that the resignation occurred because of the employer's intolerable conduct. To convince an arbitrator or judge that unfair constructive dismissal has taken place the employee must show that:
- The employment circumstances were so intolerable that the employee could truly not continue to stay on;
- The unbearable circumstances were the cause of the resignation of the employee;
- There was no reasonable alternative at the time but for the employee to resign to escape the circumstances;
- The unbearable situation must have been caused by the employer;
- The employer must have been in control of the unbearable circumstances.
Section 186 (1) (e) includes in the definition of dismissal the situation where:
"… an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee".
A resignation by the employee for purposes of avoiding the disciplinary hearing is unlikely to constitute unfair constructive dismissal.
See Mvamelo vs AMG Engineering (2003,11 BALR 1294) where the employee claimed constructive dismissal when he was informed he was to face a disciplinary hearing for theft and that criminal charges would also be laid. See also Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd (2009, 4 BALR 406) where the Court found that the employee have been performing his work poorly.Harassment in the Workplace
What must I do if I am being harassed, intimidated and/or victimized?
It often happens that when an employer wishes to "get rid of" and employee, he/she adopts tactics that create extremely unpleasant or unacceptable working conditions. This may take many different forms - it could involve spreading malicious rumours about the employee or insulting them or degrading them, overloading them with work, continually picking on them, swearing at the employee, using foul and vulgar or abusive language towards the employee, and so on.
Such behaviour is unacceptable and a violation of the employee's right to be treated with dignity and respect. Employers have a duty to protect their employees from harassment as opposed to subjecting employees to harassment.
The employee should:
- keep notes of all incidents;
- note the date and time of all the incidents;
- note the exact nature of the incidents;
- note the names of any witnesses;
- Request the assistance of an EAP person;
- share the details of the incidents with a trusted fellow employee;
The harasser should be confronted and informed of his/her unacceptable behaviour. You can demand, in writing, that the harasser immediately cease the unacceptable behaviour. The employee can state that should the harasser not cease the harassment, the employee will refer the matter to the CCMA for conciliation, and if that fails, the matter will proceed to the Labour Court.
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