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Labour Law
Employment Law
TNK Attorneys is particularly active in the public sector labour relations environment and have a sound working knowledge of public sector labour and employment legislation and collective agreements. Its attorneys have presided over several disciplinary hearings in both the public and private sector.
Our services in this field include;
- Misconduct/disciplinary investigations and hearings,
- Restructuring & Retrenchment Processes,
- Performance Management
- CCMA/bargaining Council/Labour Court/Labour Appeal Court Litigation
- Drafting of workplace policies and training materials,
- Representation at collective bargaining chambers
- Training on Disciplinary Processes and Trial Advocacy
WHAT ABOUT INJURIES ON DUTY?
If you have been injured on duty you may claim compensation from the Compensation Commissioner. Your employer must assist you with the necessary documents to lodge your claim.
When you want to claim for an injury on duty you must remember the following:
1. Report the injury to your supervisor or employer immediately; the employer must report it to the Compensation Commissioner and send the necessary forms;
2. You must get the W.CL2 form from your employer and take it to the doctor to be completed. You must then take the form back to the employer;
3. The employer must send the form to the Compensation Commissioner and you must keep the employer up to date with contact details so that any monies received by he employer form the Compensation Commissioner can be sent to you;
4. If the employer did not send in the forms or the claims take long, you must contact your nearest labour centre and report it.
The processes described by the LRA will take time to comply with and entails more than a once off meeting with the employer.
Your attorney will be able to give you more information about these processes.
Frequently Asked Questions
If you have been dismissed (regardless of the reason for the dismissal) you may claim money from the Unemployment Insurance Fund. Your employer must assist you with the correct forms in order for you to approach the Department of Labour.
If you are employed by a labour broker or temporary employment service, you may be provided to the client for a period of three months only. If you are working at the client for longer than this, you will be regarded as an employee of the client. If there is an infringement of any of your rights you may also hold the labour broker and/or client liable.
• A labour broker must be registered with the Department of Labour. • If a labour broker dismisses an employee just to avoid the Act it will
be unfair.
If you feel that you have been dismissed unfairly, you must institute a claim at the CCMA within 30 days of dismissal. The CCMA will then provide you with a date for a conarb. At this date, the Commissioner will try to conciliate the matter and see if the parties can settle. If not, he/she will continue with the arbitration (which is like a court case).
Legal representation is generally not allowed at the CCMA, but a trade union official or co-employee may represent you.
The CCMA call centre number is 0861 16 16 16.
Forms to commence with a process can be downloaded from the CCMA website at www.ccma.org.za
You can also visit the website of the Department of Labour for more information on any of the matters discussed in this brochure at www.labour.gov.za
An employer may dismiss an employee if he/she has a fair reason AND follows a fair procedure. There are only three reasons why an employee may be dismissed:
• Misconduct;
• Operational reasons;or
• Incapacity
Incapacity can refer to illness, injury or poor work performance. Operational reasons are also often referred to as retrenchment or redundancy.
The employer must comply with its own disciplinary code and procedure. If there is no such procedure in the workplace, the procedure prescribed by the Labour Relations Act 66 of 1995 (LRA) will apply. The LRA determines that there is a very specific process which the employer must follow when he/she wants to dismiss an employee for any of the above three reasons. Even if the employer should have a valid reason but fails to follow the process prescribed by the LRA, the dismissal will be unfair.
If you have worked for less than 6 months you must give one week’s notice.
If you have worked for more than 6 months but less than 12 months you must give 2 weeks’ notice
If you have worked for more than a year you must give 4 weeks’ notice.
If your contract says something different, e.g. that you must give a calender month’s notice, that provision will apply as long as the
employer and employee are bound by the same notice period.
An employee may be dismissed if he/she breached valid rule, provided that the employee was aware (or should have been aware) of the rule and that the rule was consistently applied in the workplace.
The employer must then hold a disciplinary hearing where the employee must get reasonable notice of the hearing in order to have time to prepare. The employee must get an opportunity to state his/her case at the hearing and also be allowed to call witnesses and cross examine witnesses. An employee is not automatically entitled to bring a legal representative to a hearing, but he/she may use a trade union representative or co-employee. Even if the employee is found guilty, dismissal as a penalty is not always appropriate. The employer must take the employee’s circumstances into account before decision to dismiss an employee is made.
A fixed-term worker is someone who is appointed for a specific duration or project and they qualify as employees. Normally you may not be appointed on a fixed- term contract for longer than three months. If you are, you are regarded as a permanent employee. This provision applies to employees earning more than a certain salary scale which is determined annually by the Minister of Labour. The threshold in 2016 was about R205 000.00 per year. There are also a few other exceptions which your attorney would be able to explain to you.
Labour law protection is available only to employees and not to independent contractors. An independent contractor is someone who performs work for another but for his/her own account and who does not form part of the organization or fall under the control of the employer. If, for example, you call a plumber to come and repair a broken pipe, he performs and independent service and is not an employee.
Domestic workers and garden workers who work part time, are employees and fall under labour law protection. In fact, there are special regulations issued for this sector, which are available from the Department of Labour’s website.