We provide specialist advice on the most effective implementation strategies for employers to ensure compliance with the following range of legislation including preparing clients in respect of impending amendments:

• Basic Conditions of Employment Act 75 of 1997 – Applies to all employers and workers and regulates leave, working hours, employment contracts, deductions, pay slips, and termination.
• Compensation for Occupational Injuries and Diseases Act 61 of 1997 – Workers who are affected by occupational injuries and diseases are entitled to compensation
• Employment Equity Act 55 of 1998 – Applies to all employers and workers and protects workers and job seekers from unfair discrimination, and also provides a framework for implementing affirmative action
• Labour Relations Act 55 of 1995 – Applies to all workers and employers and aims to advance economic development, social justice, labour peace and the democracy of the workplace.
• National Minimum Wage Act 9 of 2018 – Applies to all workers and aims to establish a national minimum wage and National Minimum Wage Commission.
• Occupational Health and Safety Act 85 of 1993 – Aims to provide and regulate health and safety at the workplace for all workers.
• Employment Services Act 4 of 2014 – Aims to establish productivity within South Africa by decreasing the levels of unemployment and by training unskilled workers.
• Skills Development Act 97 of 1998 – Aims to develop and improve the skills of the South African workforce.
• Skills Development Levies Act 9 of 1999 – Prescribes how employers should contribute to the National Skills Fund.
• Unemployment Insurance Fund (UIF) – Unemployment Insurance Contributions Act – Prescribes how employers should contribute to the UIF Contributions fund.
• Unemployment Insurance Act No. 63 of 2001 – Provides security to workers when they become unemployed.
• Companies Act 71 of 2008 – Regulates and provides for the duties and liabilities of Directors, the disqualification and ineligibility of directors and the appointment and removal of directors. It aims to promote the development of the South African economy by encouraging transparency and high standards of corporate governance as appropriate, given the significant role of the enterprises within the social and economic sphere of South Africa.
• Protected Disclosures Act 26 of 2000 – Introduces a mechanism for employees to report unlawful or irregular conduct by employers and fellow employees, while providing for the protection of employees who are whistle-blowers.
• Insolvency Act 24 of 1936 – The amended legislation is the primary legislation in dealing with employees during a liquidation procedure.
• Competition Law – Competition Act 89 of 1998. The legislation requires that competition authorities consider public interest grounds, including employment, in determining whether a merger can be approved with or without conditions or prohibited. Accordingly, the views of employee(s), trade union(s) and/or employee representative(s) on a proposed merger are a crucial aspect that competition authorities must consider in merger regulation.

We aim to make compliance simple, understandable and practical for employers – regardless of their size and industry – in assisting then to navigate the practical implications of the above legislation.

We assist companies with this in both a proactive manner – in the review of internal documents including employment policies and contracts of employment, internal processes and standard documentation.

We also advise on compliance when specific queries and issues have already arisen or where the company is facing an issue impacted by the relevant legislation, such as a restructuring, strike, or query on the terms and conditions of employment.

The Occupational Health and Safety Act (OHSA) addresses rights and obligations in health and safety in the workplace.

The legislation excludes employees in mines and on ships, where other legislation is applicable. The OHSA covers all other workers, including farm workers, domestic workers and state workers.

It requires employer to set up safety representatives and safety committees to ensure a participation in risk assessment and hazard control in the workplace.

The regulations in the Act provides guidelines on aspects such as toilets, change rooms, first aid, drinking water, washing facilities, protective clothing, machinery, stacking and packing, ladders, fire, ventilation, lighting, temperature, noise and asbestos. Inspectors have wide powers in terms of the Act to make sure that employers and workers comply with the Act.

Employees are required to take reasonable precautions over their own health and safety at work. They must follow any precautions and rules about safety and health. They must report any unsafe circumstances or accidents as soon as possible, to the safety representative.

The employer must make sure that the workplace is safe and healthy, and must not allow any worker to do work that is potentially dangerous to the employee’s health.

The general duties of the employer are to:

• Choose safety representatives
• Consult with the workers’ organisation about the safety representatives
• Inform workers of the dangers in the workplace
• Reduce any dangers to a minimum before issuing protective clothing
• Issue protective clothing where necessary
• Give necessary training to workers who use dangerous machines and materials, to make sure they know the safety precautions
• Prevent workers from using or working with dangerous materials or machines, unless all safety rules have been followed
• Ensure that dangerous machines are in good working order and are safe to work with
• Make sure that dangerous machinery carries visible warnings and notices
• Make sure that somebody who knows the work is supervising the operations to ensure the safety of workers
• Keep the workplace open so that workers can escape from danger if necessary
• Not move any evidence of an accident before an inspector has given permission, unless someone has been badly injured and needs treatment.

The Chief Inspector can ask any employer for a report of safety precautions.
An employer cannot take action against any workers who:

• Give information about their conditions at work
• Give evidence in court about their conditions at work
• Respond to any requests by an inspector
• Refuse to do anything that is against the law

The employer must keep a record of all accidents and safety or health incidents in the workplace. The employer must report certain accidents or incidents to the safety representative and to the Department of Labour.
The OHSA falls under the Department of Labour. Inspectors from the department have wide powers to search the workplace, question people, ask for explanations from an employer and so on.
An inspector can fine a person for contravention of applicable legislation.

Mental Health is one of the major health challenges in the workplace. Mental health conditions can impact the workplace for the employee, the employer and fellow employees and external parties with whom the affected employee engages with.

The World Health Organisation defines mental health as a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.

Mental health is a wide term and can include a person’s emotional, psychological and social well-being. It is therefore very important for employers to pay attention to employee’s workplace behaviour which is one of the indicators of employees struggling with a mental health issue. This is due to the fact that mental health disorders can often go unnoticed and therefore untreated resulting in damage in the employee’s health and career as well as a reduction in workplace productivity.

Common mental health conditions cover variations of depression, anxiety and stress but can also include chronic or long-lasting conditions such as bipolar disorder, dyslexia, OCD and autism spectrum disorder.

Depression has an impact on attendance, productivity and meaningful employee participation which in turn negatively impacts the employer.

Depression is known to cause problems with memory, and can also lead to procrastination, extreme fatigue, concentration problems and anxiety which negatively impacts the employee’s ability to meet performance expectations.

We assist employers in developing a suitable mental health policy taking into account the following factors:

• Defining mental health symptoms that are short term and those that significantly and permanent interfere with long term employment.
• Advising on dealing with diagnosed disorders such as: depression, anxiety, panic disorder, schizophrenia, bipolar
• Defining Reasonable accommodation in the context of any modification or adjustment to the workplace that will enable an employee with a disability to have access to or to participate or advance performance expectations.

Our experience includes working with specialists psychiatrists in identifying appropriate and suitable strategies taking into account the interests of the employer and employee in cases of alleged misconduct, poor performance or incapacity of the employee.

The Protection of Personal Information Act, No 4 of 2013 promotes the protection of personal information by public and private bodies.

The legislation will affect businesses operating in South Africa and companies will impact how employers manage employee and customer data as the legislation will strengthen South Africans’ right to privacy by introducing strict measures to regulate the collection, storage and distribution of personal information.

Some of the obligations that companies have under POPI are to:

• Only collect information that is needed for a specific purpose
• Apply reasonable security measures to protect it
• Ensure it is relevant and up-to-date
• Only hold as much as needed, and only for as long as you need it
• Allow the subject of the information to see it upon request

These regulations are specifically of relevance in employment law, and impacts both the responsibility of the human resource function in dealing with the personal information of employees, and with employees who breach these laws in course and scope of their employment.

Disciplinary codes and contracts of employment should take into account the applicable legislation where necessary, and should capture adequate rules and disciplinary offences related to breach of data privacy.

If you would like to know more about this legislation and how to ensure your organisation’s compliance, contact us now.

The purpose of the Employment Equity Act, 55 of 1998 is to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through elimination of unfair discrimination and implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure equitable representation in all occupational categories and levels in the workforce.

This Employment Equity Act provides for additional reporting requirements for designated employers to prepare an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce.

This employment equity plan must include the affirmative action measures to be implemented, the procedures used to monitor and evaluate the implementation of the plan, the timetable setting out the plan, objectives, duration, procedures and internal management of disputes regarding the plan and the numerical goals to be achieved of the appointment of underrepresented persons from designated groups (“black people, women and people with disabilities”) in order to achieve equality in the workplace.

A designated employer, who is obliged to comply with the abovementioned, section includes employers who employ more than 50 employees; or those employers with a total annual turnover equal to or above the annual turnover of a small business as prescribed.

Non-compliance with the provisions of the Employment Equity Act is monitored by complaints by any employee or trade union representative, the employment equity registry, Labour inspections and Director General Reviews.

In terms of s20(7), the Director-General may apply to the Labour Court to impose a fine in accordance with Schedule 1 if a designated employer fails to prepare or implement an employment equity plan in terms of this section.
We assist employers with compliance against the provisions of the legislation and in preparing and advising on the implementation of an employment equity plan.

We assist employers in assessing the most suitable type of employment or appointment and in this regard assist on the most prudent arrangement to implement. We assist in the drafting of the following key documentation:

• Executive service agreements
• Permanent employment agreements
• Fixed term contracts – project based or time based
• Independent contractor agreements
• Consultancy Agreements
• Temporary Employment Services Agreement (Labour Broker Agreements)
• Secondment Agreement
• Learnership Agreements
• Bonus/incentive/commission schemes
• Restraints of Trade Agreements
• Collective Agreements with Trade unions

As an employer, you need sound legal advice in preparing your standard documentation to help protect your business, manage your risk and to save you money.

We advise clients on trade union and collective bargaining related issues. In terms of section 27 of the Labour Relations Act an employer organisation is allowed to form a bargaining council and trade union for the purpose of seeking solutions to labour disputes, managing collective agreements and putting forward labour law policy recommendations.

The role of bargaining councils entails the creation and enforcement of collective agreements, establishment and management of a dispute resolution as well as preventing and resolving of labour disputes.

We therefore assist clients in relation to organisational rights and the right to bargain in terms of section 11 to 16 of the Labour Relations Act and helping clients to conclude recognition agreements for bargaining agents of groups of employees which helps to regulate the employment relationship and allow for negotiations.

Our experience includes: wage negotiations with unions and bargaining councils, review of collective agreement and preparation of advice on organisational rights and assisting clients with employee’s strikes and lockouts and negotiating with trade union representatives.

We advise clients on all labour and employment aspects related to sales and transfer of a business or service as a going concern.
We work strategically with our clients to ensure compliance with section 197 of the Labour Relations Act and applicable Competition Law legislation.

We assist with the engagement of trade unions and guide the client to reduce the negative impact on employees and ensure seamless transition.

Our experience includes: preparing the necessary staff communications; drafting appropriate provisions in respect of the transfer of business or service; negotiating and drafting alternative agreements outside of automatic transfer; assisting in post-transfer rationalisation of terms and conditions of employment; assisting in the change management process; harmonizing remuneration structures to avoid any unfair labour practice risk and ensuring appropriate updated communications to employees confirming new arrangements.

We have experience in employment litigation, including disputes in the CCMA, Bargaining Councils, Labour Courts and High Courts.

Our experience extends to defending and implementing claims involving race, sex, age, and disability discrimination; sexual harassment; employee benefits issues; unfair dismissals and unfair retrenchment claims; as well as breach of contract, retrenchments, organisational development, probationary employee disputes.

We also handle complex litigation involving non-disclosure, and restraint agreements and employee theft of confidential information and trade secrets

We provide third party workplace investigation to employers where a neutral third party’s unbiased opinion is required. Companies find the need to hire us to complete an on-site investigation into allegations of misconduct. We are efficient, discrete and conduct the investigations without bias and provide the employer with a comprehensive report making findings of fact to assist in resolving the matter and recommend an appropriate course of action and way forward.

A developing economy brings a new set of workplace challenges. The Basic Conditions of Employment Act set out minimum standards to which employers must adhere and the provisions thereof impact the terms and conditions of the contract of employment.

Under the BCEA employees are guaranteed basic minimum entitlements on things such as:

• hours of work;
• overtime;
• public holidays;
• annual leave;
• pregnancy and family responsibility leave; and
• termination and severance pay.

Given the importance of these basic conditions, they must be given due consideration when drafting letters of appointment, workplace policies, human resource policies as well as in making sound business decisions.

We advise our clients on these day to day to day issues which impact all businesses.

Many aspiring as well as established professionals can expect at some stage in their careers to have to take professional advice from an employment lawyer. This may be before the start of a new job, while they are employed or when they contemplate leaving. Good advice received at the appropriate time makes the difference between a nightmare fraught with uncertainty, risk and litigation and a measured, soft landing.
We represent executive or non-executive directors, senior management and members of professional organisations.
We are mindful of employer business imperatives, impact of new leadership, personality conflicts and the strategies used by employers and their advisers having been on the opposite side.
Our experience enables us to anticipate and deal with situations that call for a steadfast approach versus that of negotiation, mediation or, if necessary, legal proceedings.
Our approach is to deliver positive solutions and not litigate or escalate conflict unnecessarily., reserving same for circumstances which sufficiently justify such action.
Our approach is towards collaborative working relationship with the client to achieve the common shared objectives quickly and cost effectively.
Our areas of work are:

• Reviewing employment / secondment / dual employment contracts and negotiating fair and reasonable terms.
• Advising on key performance areas, incentive plans, restraint of trades and corporate governance.
• Advising on implications arising from shareholder agreements.
• Facilitating exits, transfers, early and late retirements.
• Advising directors and non-executive directors on their legal responsibilities as directors.
• Giving independent advice to boards of companies
• Assisting and advising clients on grievances, resignations and negotiations with their Companies.

Incidents of discrimination can be complex especially if approached in a subtle manner. If you believe that you are suffering from discrimination, you should obtain expert legal advice from the outset.

Discrimination laws protect a wide-range of individuals including employees and applicants for employment.

No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground;

It is not unfair discrimination to —

• take affirmative action measures consistent with the purpose of this Act; or
• distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination.

A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed above is unfair discrimination.

We advise employers and employees to resolve the matter in a way which meets their objectives.

Companies may also recognise that bullying, harassment and discrimination is occurring within the organisation and requires action.

Bullying and harassment in the workplace can include:

• Being humiliated in front of customers or colleagues
• Receiving physical or verbal abuse, unwelcome teasing, practical jokes and banter
• Being blamed for issues and problems caused by others
• Excessively unfair criticisms, removal of responsibilities
• Being unfairly blocked from promotions or denied holiday and training opportunities
• Being excluded from team activities, meetings or relevant emails
• Receiving baseless threats about your job security or regularly being threatened with the sack
• Being routinely overworked and having unrealistic expectations placed on you, which are impossible to achieve.

Harassment describes unwanted conduct that violates your dignity in the workplace, or makes it a hostile, degrading or offensive environment for you. Harassment is also a form of discrimination. These include bullying connected to:

• Disability
• Age
• Sex
• Race
• Sexual orientation
• Pregnancy or Maternity Leave
• Marriage or civil partnership
• Gender reassignment
• Religion or belief
• Examples of harassment
• Examples of harassment and discrimination in the workplace can include:
• Being treated unfairly because of your sexuality, gender, race or beliefs
• Receiving unwanted sexual advances from a colleague
• Being subjected to homophobic comments
• Being teased about a disability
• Receiving offensive materials, such as emails with sexual content.

Companies should handle such situations with care, so as to recognise the rights of both the victim and the alleged perpetrator. Failure to take reasonable action could result in liability for the Company. Expert advice is often useful navigating these sensitive situations to ensure that harmony is restored to the workplace.

We have extensive experience in advising on and negotiating separation agreements ranging from relatively straightforward settlement deals right through to complex, high-value arrangements that may involve variable pay, future commissions, share options, relocation and expatriation costs.

We have conducted various workshop and inhouse training seminars aimed at sharing recent developments and also creating capacity building to empower clients to confidently manage incidents.

Our employment law training sessions are interactive and based on case studies, industry challenges and prevailing patterns. This ensures that these sessions are not theoretical and ensures open meaningful interaction.

Some recent workshops conducted have focused on the following:

• Independent contractors v employment – the labour and tax guidelines and risks.
• Management training on investigating misconduct and poor performance
• Social media and its impact on the workplace
• Mental health in the workplace – depression and other disorders
• Bullying and harassment – Mitigating the risk
• Restraints of Trade
• Pre-employment dishonesty and recruitment
• How to present or chair a disciplinary, performance and ill-health hearing
• Employment law updates

We also provide one-on-one coaching on behalf of organizations where specific individuals may need assistance in understanding their legal obligations in the workplace.

It is an inevitable reality that businesses evolve and undergo changes resulting in retrenchment.  This has become more frequent in recent years due to the difficult economic conditions, weakening rand, increased amount of competition; globalization and alignment to more efficient business models.

As well as being difficult for those directly impacted, retrenchment can be a legal minefield due to the South African procedural requirements. So it is essential, for employers to follow the correct procedures to avoid legal risk of reinstatement and compensation and protect their reputation.

We have extensive experience advising employers on retrenchment – both minor and major having undertaken such assignments in various industries including financial services, mining, construction, advertising, travel and manufacturing.

We also have particular experience at managing the risks attached to retrenchment in the context of business transfers, outsourcing, winding down and closures.

We can advise you on:

• planning and implementing a restructure and establishing the commercial rationale
• identifying the risk issues
• designing viable selection criteria
• identifying an appropriate strategy in respect of trade union notification, involvement and engagement
• when to notify the CCMA on major retrenchments and preparing notification
• guiding on severance payment
• Preparing country retrenchment agreements

 

Some examples of our work:

• Advising an international diamond manufacturer on the closure of its South African operations.
• Advising international arms manufacturer in respect of the reorganization of its local operations.
• Advising international telecommunications Company on its South Africa and Africa operations and re-organisation.
• Advising international consumer goods on its business re-engineering and re design including outsourcing of functions.
• Advising several financial services companies on retrenchments in respect of complete or partial closure and reduction of key areas.
• Advising an international luxury goods Company in dispute with Department of Labour on various issues related to working hours, compressed working week and overtime.

We have experience when it comes to representing professionals in connection with internal investigations; disciplinary proceedings.

Allegations of professional misconduct, negligence and incompetence can be hugely damaging to a professional’s career.

Individuals who face allegations of professional negligence could end up paying a high monetary fine or face a period of suspension. In worst-case scenarios, their professional registration could be cancelled, effectively ending their career.

Our approach encompasses preparing any written response required; participating in an interview with the investigator, preparing for and conducting hearings, as well as negotiation of plea agreements.

The professional clients we represent include: Doctors, Lawyers, Teachers, Architects, Clergy who face discipline by religious institutions.

We have the experience, judgment and confidence to advise our clients when/how to resolve matters through the investigative stage and when to take it to a full hearing and beyond.

In a challenging economic landscape, employers are always going to face unanticipated developments – whether people or business risk. When faced with a major crisis, employers need lawyers with sound judgment, skills, relationships and experience to provide an integrated approach to resolving the crisis. That means having a lawyer who can identify and develop a strategy with a multi-disciplinary team that addresses all aspects of the matter—the legal issues; reputational aspects, regulatory risk areas and shareholder risks; civil litigation; public relations and general business sustainability.  We have experience working with and within teams of multi-disciplinary advisors in solving complex problems.

Prevention is better than cure, and most often there are sound reasons for an employee to exit an organization, whether it be for poor performance, misconduct committed or an illness preventing them from doing the work.

However, often times the process followed is not the correct process – leading to liability of the employer to the employee for unfair dismissal.

We assist employers by advising on the merits of the matter, the advisable process to follow, the drafting of applicable documentation such as charge sheets, and further assisting the employer to present their evidence in an enquiry.

In this manner, potential liability for unfair dismissal is greatly minimized and properly managed.

Our professionals of different levels of seniority and costs are available to chair enquiries on a wide range of issues, (disciplinary, poor performance and incapacity proceedings) where we have not been acted for the company in other respects, to ensure that our professionals can provide objective oversight of the proceedings and issue recommendations which are appropriate taking into account all the circumstances, once again, minimising the risk to the organization.