FAQ

Contact Clive Hendricks at 021-423 4250  

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.
• where an employee is dismissed following a disclosure made by him/her in terms of the ‘Disclosure of Information Act’

Clients shou

Substantive 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.

Procedural fairness

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.

ld notify the firm of any change of address. Similarly, clients should notify the firm about any change in telephone numbers, email address and any other change in contact details.

There is no appeal against an arbitration award. You lodge an application to the Labour Court to review the arbitrator’s decision, if you think:

• The arbitrator exceeded his or her powers;

• There was something legally wrong in the proceedings; and

• The arbitrator did not consider relevant issues in accordance with the law.

The review must be lodged within 6 weeks of receiving the arbitration award.

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 may 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 is calculated in accordance with the worker’s salary as at the date of the dismissal.
• 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.

• If the reason for the dismissal was not a fair reason based on the worker’s conduct or capacity, or the employers operational requirements, then the compensation awarded must be fair, but not more than twelve months of the worker’s salary.

Employees can claim UIF when their employer is insolvent, your service contract has expired or you have been dismissed by your employer.

Employees dismissed for reasons based on the employer’s operational requirements (Section 41 of the BCEA) are entitled to severance pay or a retrenchment package of at least one week’s remuneration for each completed year of continuous service with the employer, unless the employer is exempted from paying severance.

Contact Clive Hendricks at 021-423 4250

A personal injury is considered any injury that gives rise to legal liability of the responsible party. When one person gets hurt because another person or company acts negligently, the victim has a personal injury. The victim may bring a claim for financial compensation against the wrongdoer. The lawsuit is a civil lawsuit brought by the victim. The victim may receive financial compensation for the injuries sustained.

After a car accident, most people experience some degree of shock. However, there are certain steps that should be taken to help ensure a strong case. If possible, do the following:

• Call the police.
• Take photos of the accident scene.
• Talk to any witnesses and get their contact information.
• Get insurance information from the other driver.

Most importantly, see a doctor. This is important even if you believe your injuries are minor – or even if you think you have no injuries at all.

If you have been injured in an accident caused by someone else’s negligence or recklessness, you may be entitled to compensation for your injuries and suffering. It is important to speak to a personal injury lawyer about your legal options. A personal injury attorney can help you seek maximum compensation for all damages and expenses associated with your accident.

Most personal injury cases do not go to trial. Most resolve by settlement before the trial date arrives. A case is most likely to go to trial when the facts are in dispute or when there is a contested legal issue. The more carefully you build your case, the more likely it is that you and the other party can agree on the strength of your evidence and reach an appropriate settlement. If your case is in the minority of cases that go to trial, your attorney can help prepare you for what to expect.

You maximize your injury settlement by carefully building strong evidence in your case. It is essential to understand all the categories of damages that apply and build the evidence of each category of loss that you’re claiming. It is also important to carefully prepare court filings that comply with the law in your state. When the other side files court motions, you must respond aggressively and appropriately to maximize your injury settlement.

No, pain and suffering do not include medical bills. But you have a right to claim full compensation for all your medical bills as part of your injury case. In fact, your pain and suffering compensation is on top of and in addition to your compensation for medical bills.

Contact Clive Hendricks at 021-423 4250

The Insolvency Act, 24 of 1936, defines the term “insolvent” as a debtor whose estate is under sequestration and includes such a debtor before the sequestration of his estate seen in context. The Insolvency Act also defines the term “insolvent estate” as an estate under sequestration, however the Act does not define the term “insolvency”. According to South African case law, the test for insolvency is whether the debtor’s liabilities exceed his assets. The mere inability to pay debts is not necessarily indicative of a state of insolvency.

In this regard, the courts have drawn a distinction between factual and commercial insolvency. Factual insolvency is found where a debtor’s liabilities exceed his assets, while commercial insolvency refers to the situation where a debtor is unable to pay his debt due to a cash flow or other problems, but his assets still exceed his liabilities.

A private person would also be deemed insolvent if it is proved that he has committed an act of insolvency as provided for in Section 8 of Insolvency Act, as is also the case with a company which commits an “act of insolvency” in terms of Section 344 of the Companies Act, 61 of 1973.

The creditor of a company or individual can apply to the court for the liquidation of a company or for the sequestration of an individual debtor. If the court is convinced on the face of it that the company or individual is insolvent, the court will make a provisional liquidation or sequestration order.

The application for liquidation or sequestration, along with the provisional order, should always be brought to the attention of the insolvent and all his creditors. Upon the issue of the provisional liquidation or sequestration order, a date is fixed upon which any person or entity can approach the court in order to submit why the company or individual should not be liquidated/sequestrated. Once the court is convinced that the company or individual is indeed insolvent, a final liquidation/sequestration order is made

When a company is deemed to be insolvent, the company is liquidated and a liquidator is appointed to realise the assets of the company in order to settle the company’s debt or liabilities to the advantage of the creditors.

When an individual is declared insolvent, he is sequestrated and a curator is appointed to take control of his assets for the purpose of realising them in order to settle his debt to the advantage of his creditors.

Once a natural person is sequestrated, the Master of the High Court appoints a trustee / curator who must take control of the assets. In the case of a company, close corporation or certain other legal entities, the person appointed by the Master is referred to as a liquidator. Both a curator/trustee and liquidator fulfil the same duty and have the same rights and responsibilities.

If it appears that it is reasonably unlikely that a company will be able to pay all of its debts within the following six months or it appears to be reasonably likely that the company will become insolvent within the next six months, the directors of such a company can make a decision to place the company under business rescue.

When a person or individual is over-indebted and entering the realms of insolvency, he is entitled to consult a debt counsellor in terms of Section 86 of the National Credit Act, 34 of 2005, for an evaluation of his state of indebtedness and to make a formal application for debt review. The effect of a debt review process is in essence that an arrangement is made with the insolvent’s creditors in terms of which a debt counsellor apportions the insolvent’s income to the satisfaction of his creditors.

In the event that a company or an individual’s assets are realized or sold in order to pay its debts, and it becomes apparent that the value of the assets is not enough to settle the debts of a company or an individual, thus creating a shortfall in the estate of such a company, the creditors of that company or individual which have proved claims against the estate may be held liable to contribute to the administration costs of the estate, pro rata according to the value of their claims.

A trustee / curator / liquidator is entitled to receive, for his services, a reasonable remuneration to be taxed by the Master generally according to the prescribed tariff. The said remuneration is generally based on the proceeds or the value of the insolvent estate’s assets. The trustee / curator / liquidator would be entitled to a certain percentage of the proceeds generated by the realisation of the insolvent estate’s assets as prescribed by the relevant tariffs applicable thereto.

If a company is insolvent, the directors of that company can decide by way of a resolution that the company should be liquidated. The company’s voluntary application for liquidation is then submitted to the Registrar of Companies and is duly registered, after which a provisional liquidator is appointed.

In the case of an individual, the individual himself can make an application to the court for the surrender of his estate. The court will, however, only grant such an application if it is convinced that the individual is insolvent, that there is an actual advantage to the individual’s creditors if he were to be sequestrated and that the realisation of his assets will be sufficient to cover the administration costs of the sequestration.