We specialise in resolving Labour disputes and challenging any form of unfair dismissal, which is the most common matter referred to the CCMA. We provide immediate advice on "What to do if you are unfairly dismissed in South Africa", helping you determine if your dismissal was based on misconduct, incapacity (poor performance or ill-health), or operational requirements (retrenchment), and whether the employer followed a fair procedure, and whether their actions are justified.

A dismissal can be procedurally fair but substantively unfair, and vice versa, resulting in the following permutations:

1) Procedurally fair but substantively unfair, means the employer followed the procedures correctly, but the reason for the dismissal cannot be substantiated.

2) Procedurally unfair but substantively fair, means that the employer did not follow the procedures correctly, but the reason for the dismissal can be      substantiated.

3) Procedurally unfair and substantively unfair, means that the employer did not follow the procedures correctly, and the reason for the dismissal cannot be     substantiated.

The CCMA Commissioner can agree with one of the above scenarios, or decide in favour of the employer, and declare that the procedure was fair, and the reason for the dismissal can be substantiated. 

A key part for the employee is to distinguish between a standard unfair dismissal and an automatically unfair dismissal, which occurs for legally prohibited reasons like union activity or discrimination, carrying a higher compensation ceiling. 

Analyse your case to ensure the correct legal claim is lodged, for example, clarifying the subtle but important Difference between dismissal and unfair labour practice (which relates to unfair actions short of dismissal, such as a denial of promotion).

Whether you are part of a group dismissal or on your own, you must ensure that your correct severance pay was agreed to/offered in terms of the BCEA.

For employees, often, first prize is reinstatement, alternatively re-employment. Failing these options, a permissible maximum compensation (up to 12 months’ salary, or 24 months for an automatically unfair dismissal), can be applied.

For employers defending against frivolous or unsubstantiated claims, ensure that your decision was both substantively and procedurally fair in terms of the LRA. While the CCMA is generally more sympathetic to businesses, and therefore place a higher burden of proof on the employee, it is wise to always be prepared to demonstrate that your intention, and the procedures that you applied/followed were by the book, or alternatively, logical and ethically defendable. 

Our advice is to always do the right thing from the start - recruit well, ensure proper induction and any necessary training is completed, then track and monitor performance via proper performance contracts. Lawyerz can help you set this up so you're always on the right side of the law, with a happy and productive team motivated to perform. 

We'll assist you to successfully manage the legal risks associated with retrenchment and ensure compliance with all statutory requirements, avoiding costly awards against your business.

A robust employment contract is the foundation of any healthy working relationship, so, as a business owner, it is in your interest to detail as much of the job specifications, role(s ) and responsibilities to create the appropriate expectations. 

As an employee, this is also a critical tool for you, as you have clarity of what is expected of you, and also have a clear contract on what you're expected to deliver, and are able to manage role creep.

We'll happily offer a detailed labour lawyer for employment contract review for individuals and draft new contracts for businesses, covering complex issues like fixed-term contracts, restraints of trade, and confidentiality clauses.

To protect your rights and obligations as an employee, we also address important client concerns such as, 'Can an employer change employment conditions without consent?' 

Performance Management is a critical tool for articulating your expectations of an employee, and ensuring these expectations are clearly understood and executed accordingly. The appropriate monitoring and tracking of progress provides transparency for both parties, and makes poor work quality or lack of productivity easier to detect. 

'How to draft a performance Improvement Plan (PIP)', is a popular request from our clients. This is also an important process to follow and have on hand should one of your employees fall into the category of poor performance. 

These processes and documentation need not be complicated, just ensure it is legally defensible and adheres to the Code of Good Practice.

For employees facing a performance process, we offer coaching and legal advice to ensure the process is not being misused to force a dismissal. If this has already happened to you, let us assist you with your claim on how to prove poor performance dismissal is unfair.

By assisting both parties in establishing clear expectations and performance standards, we're assisting in minimising the risk of future labour disputes and trying to improve the employer/employee relationships in South Africa, making us a more productive nation. 

We'll ensure that contracts comply with the Basic Conditions of Employment Act (BCEA), covering minimum leave, working hours, and notice periods.

A clear contract and a fair performance system reduces ambiguity, fostering a productive environment while protecting your rights and limiting potential liability at the CCMA.

Facing a Disciplinary Inquiry is often the final step before dismissal, making legal assistance crucial for both employers and employees. 

Disciplinary hearing assistance for employers is crucial to ensure the entire process - from the initial charge sheet to the final sanction - is procedurally and substantively fair, preventing an unfair dismissal claim later at the CCMA. 

For employees, understanding employee rights during a disciplinary inquiry is vital to ensure that you are not being compromised - seek professional representation if you feel the charge and/or the process is unfair.

Depending on the severity and complexity of the disciplinary enquiry, the question of 'Legal representation at disciplinary enquiries' always pops up. This can be debated, and depending on the expected loss of reputation and income that an employee faces, a call can be made if they should have legal representation present, or be prepped by legal experts instead.

As an employer, ensure that your evidence is properly tested through cross-examination and that the appropriate penalty is being applied, should the employee be found guilty. 

As an employee, ensure that the employer, through the appointed chairperson, follows due process, as procedural fairness is a key requirement of the LRA.

We assist our clients to compile compelling 'defence bundles for employees'. 

Our service currently includes assisting employers with the drafting of disciplinary codes for employees, highlighting common procedural mistakes to avoid, and ensuring fairness is applied consistently to prevent claims of bias or pre-determination. By ensuring the inquiry is conducted in accordance with the principles of natural justice, we secure findings that will stand up to scrutiny at the CCMA or the Labour Court.

This guide provides general information about Labour Law and jurisdiction in South Africa as at the review date above and is not a substitute for professional legal advice.

Fees, forms, and procedural requirements are periodically updated – always confirm current details with the CCMA and/or Labour Court directly, or a qualified attorney before proceeding.