Labour Law
Malcolm Lyons & Brivik Inc. specialises in Labour Law in South Africa, offering services such as
unfair dismissal, retrenchments, discrimination, and more. Get expert legal representation nationwide.
Read more about our services:
Unfair Dismissal
The Labour Relations Act as amended provides protection to employees from an unfair dismissal. Malcolm Lyons & Brivik Inc. have in the past litigated
these claims both at the Commission for Conciliation, Mediation and Arbitration and at the various Bargaining Council’s around the country.
We represent clients on a no- win no- fee basis.
The Labour Relations Act provides only three substantive grounds for the valid termination of employment. These are for misconduct, poor work
performance and operational requirements. Prior to the termination of employment an employer must follow the correct procedures. These
procedures include handing to the employee a Notice to Attend a Disciplinary Hearing with a reasonable period to allow the employee to prepare.
The Notice to attend a Disciplinary Hearing in a dismissal for misconduct must adequately set out the grounds of the alleged misconduct.
Malcolm Lyons & Brivik Inc. assist in the drawing of the Notices to Attend the Disciplinary Hearing ensuring that they meet the legislative
requirements.
In a claim for alleged unfair dismissal an employee can recover up to a maximum of 12 months compensation. Compensation is calculated as
a factor of his or her salary.
“if an employee would like to but can not that is a performance issue, if the employee can but does not want to that is misconduct”.
Retrenchments
An employer may also terminate the employment of any of it’s employees if it intends to restructure it’s workforce. The restructuring could be for any one of the following grounds: technical innovation , financial reasons and restructuring. If the employer cannot substantiate any one of those three grounds then a termination for operational requirements will not be considered substantively fair by the Courts. A referral can be made to the Labour Court if a termination of employment occurs for operational requirements.
Malcolm Lyons & Brivik Inc. have vast experience in Labour Courts nationally. A Statement of Case must be issued in the Labour Court. Strict time periods apply for any referral of a dismissal for operational requirements and there are also procedures of law which affect the manner in which a claim is handled depending on whether one or more people were dismissed.
Compensation is calculated as a factor of monthly remuneration up to a maximum of 12 months.
Unfair Labour Practice
Remedies for unfair labour practice vary from referral to referral and are dependent on the nature of the complaint.
An unfair labour practice is defined as an act or omission which arises between an employer and an employee involving unfair conduct relating to promotion, demotion and probation or training of an employee or to the provision of a benefit. It also includes an unfair suspension of an employee or
any unfair disciplinary action short of dismissal.
Finally it may include a refusal or failure of an employer to reinstate or re- employ a former employee.
Discrimination
The Labour Relations Act as amended sets out the grounds, which should an employee be dismissed for these, would constitute an automatically unfair dismissal.
Victims of automatically unfair dismissals are entitled to receive up to double the ordinary amount of compensation namely 24 times their gross monthly salary.
The Labour Relations Act as amended defines automatically unfair dismissals as those instances where an employer unfairly discriminated against an employee either directly or indirectly on any arbitration worthy ground including race, gender, sex, social origin, colour, sexual orientation, age, disability, religion, etc. It may also include when an employer compels an employee to accept a demand in respect of any matter of mutual interest i.e. when strike action would usually be considered by an employee, usually a termination of employment for an automatically unfair reason does not fall into the ordinary categories of misconduct or incapacity.
These claims can only be litigated in the Labour Courts.
Malcolm Lyons & Brivik Inc. have litigated various number of these types of claims nationally. Most common causes for termination which ultimately are found to be automatically unfair are related to race, age and pregnancy.
We accept these claims on a no- win no- fee basis.
Protected Disclosures
Malcolm Lyons & Brivik Inc. were the first law firm to litigate to trial at the Labour Court in Johannesburg and all the way to the Labour Appeal Court a claim on behalf of an employee based on her termination for a protected disclosure which she made.
The Protected Disclosure Act protects whistleblowers who are honest and who raise their concerns and report any wrongdoing. The Act applies to both employees in private and public employment.
Any employee who is subsequently victimised as a result of their whistleblowing or disclosures is therefore protected . The protection extends to any prejudice they may experience in the workplace from termination of their employment right down to unfair labour practices related to or arising from the disclosures which they made.
As a termination of employment on the basis of a disclosure is considered an automatically unfair dismissal an employee would be entitled to 24 months compensation.
The matter would have to be litigated in a Labour Court. At Malcolm Lyons & Brivik Inc. once we have evaluated your claim will pursue it on your behalf on a no- win no- fee basis.
Strikes/Lock-Outs
The Labour Relations Act as read together with the Basic Conditions of Employment Act has created an environment for discussion between employers and employees. In larger workplaces employees are ordinarily represented by a trade union.
If the employers and employees cannot reach agreement and the discussion brakes down,with regards to matters of mutual interest which most usually include increases in salary and wages , then the employees are entitled to embark on a protected strike. Provided that they have followed the correct procedure.There is a vast amount of case law regarding when a strike is protected and what remedies the parties are entitled to. For instance an employer may be entitled to a protected lock- out. Certain formalities must be complied with before either party embarks on a strike or a lock- out . The CCMA can also be used to intervene and to bring the parties nearer together.
At Malcolm Lyons & Brivik Inc. we have assisted both employers and employees in the course of a strike action.
We have brought numerous urgent applications to the Labour Court interdicting strikes. Strikes and lock-outs are an invaluable component of a dialogue between employers and employees.
Disciplinary Hearings and Contracts
We have assisted employers in their day to day management of employees. This includes preparing Notices to attend Disciplinary hearings, chairing disciplinary hearings, preparing the outcome/ recommendations from Disciplinary hearings and managing the warnings system. We have at Malcolm Lyons & Brivik Inc. also drafted company codes and procedures ranging from misconduct to sexual harassment.
We have also prepared Contracts of Employment and reviewed Contracts of Employment on behalf of employees.
Often employers and employees are uncertain whether they have contracted as independent contractors or entered into an employment relationship; or whether they wish to have fixed term employment arrangements or temporary employment arrangements.
On other occasions Malcolm Lyons & Brivik Inc. have been asked to prepare the Tri-partite agreements between labour brokers, the employees themselves and the clients and customers of the labour brokers.
This includes determining when and how payments will be made, whether any indemnities need to be signed and who ultimately is required to make the statutory deductions including payments of the Workmens Compensation Commissioner.
Conferences and Seminars
We provide course material and case studies for the inhouse training and guidance to the attendees during the courses and seminars.
For more information a request can be made directly to Malcolm Lyons & Brivik Inc.
Should you wish to contact Malcolm Lyons & Brivik Attorneys Inc.
to assist please contact us on:
Cape Town, Western Cape:
0861 MLB INC / (021) 425-5570
Johannesburg, Gauteng:
0861 MLB INC / (011) 268-669
With offices and representatives country wide from Cape Town and Johannesburg
we are able to represent clients throughout South Africa.
