Employment Law

The Leeuwner Maritz legal team can assist you with any aspect of employment and labour law from dismissal to retrenchments.  Call us  . . .

The Employment Law is law regulating the workplace in respect of Employer and Employee relations, i.e collective bargaining, establishment of trade unions and employer organisations, establishment of specialised tribunals for dispute resolution, dismissal, retrenchment, unfair labour practices, restructuring etc

A) DISMISSAL

Dismissal occurs when the Employer has terminated the contract of employment with or without notice, when an Employee reasonably expected the employer to renew a fixed term contract of employment on the same terms and has failed to do so, when an Employee resigns because the Employer made continued employment intolerable, when the Employer refuses to allow the Employee to resume work after returning from maternity leave etc.

Requirements of Dismissal

• The Dismissal has to be effected in accordance with the correct procedures (Procedural Fairness).

• The Dismissal has to in relation to a fair and legally acceptable reason (Substantive Fairness).

• Dismissal must be appropriate in the circumstances.

Procedural Fairness

The Employer must follow the correct procedures when dismissing an Employee for whatever reason.

For example when the Employer wishes to dismiss an Employee for misconduct the Employee is entitled to receive sufficient notice of the disciplinary hearing, be notified of the charges against him, be given the opportunity to prepare a defence to the allegations brought against him, have the hearing adjudicated by an impartial chairperson and be allowed to challenge the evidence brought against him/her as well as present his/her full version of the events to the tribunal.

Should any of these requirements not be met by the Employer such a dismissal may be unfair and the Employer may be ordered to pay compensation to the Employee.

The processes differ widely for alternative reasons for dismissal such as dismissals based on poor performance and dismissals due to operational requirements (retrenchment).

Substantive Fairness

Even when an Employer follows the correct procedure relating to the dismissal of an Employee but the reasons given for the dismissal is not legally acceptable and fair such dismissal may be unfair and in this instance might result in the Employer having to reinstate the Employee along with compensation.

There are 5 requirements which determines whether or not a dismissal was substantively fair and an Employer must ensure that it clears all of the requirements before embarking on the process of dismissing an Employee.

Dismissal appropriate sanction

Any person vested with the responsibility of having to determine whether or not a dismissal was affected fairly will always ask whether or not the dismissal was a fair sanction in the circumstances.

An Arbitrator or judge will determine this by looking at factors such as the length of service of the Employee in question, the nature of the Employers’ business and the nature of the Employee’s function within the business, the nature of the trust relationship between the Employer and Employee as well as the previous disciplinary record of the Employer as a whole.

Should both Substantive Fairness and Procedural Fairness be present but the sanction of dismissal is deemed to be too harsh such a dismissal may be overturned and the Employer may have to reinstate the Employee retrospectively and with compensation.

B) RETRENCHMENT

(“Dismissal affected due to no fault on the side of the Employee but based on the operational requirements of the business.”)

This is a form of dismissal where the Employee is entirely innocent of misconduct but the Employer needs to dismiss the Employee for reasons such as financial strain, downsizing and general restructuring, moving of offices and workplaces etc.

Because this is not due to any fault on the side of the Employee there is a general need for the Employer to consult with the Employee to discuss certain issues contained within Section 189 of the Labour Relations Act.

The Act also places the Employer under very strict obligations with respect to the severance pay which the Employee should be entitled to in terms of the Act.

Retrenchment is a very onerous and difficult process to run for most Employers but when done correctly can easily achieve a minimisation of job losses whilst allowing the Employer to make the required changes to the operation thereof.

“Our Attorneys can assist in respect of the above, as well as in preventing and opposing same. Our attorneys are also very skilled at drafting and implementing policies and employment contracts, assisting with the implementation of employee handbooks and have had vast experience in dealing with blue chip corporate and multinational corporations to align foreign policy with local policy in order to achieve the best approach in terms of governing employment laws. Our firm also assists in investigations, drafting of charges, chairing of disciplinary hearings and so forth in order to be the most cost effective and efficient solution for your business”