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:

Labour Law – Employee Rights & Unfair Dismissal Claims in South Africa

South African labour law protects employees against unfair treatment and unlawful dismissal in the workplace. Employers must follow strict procedures and comply with the Labour Relations Act when terminatingemployment. If an employer dismisses an employee without proper reason, fair procedure, or in violation of labour legislation, the employee may have the right to challenge the dismissal and claim compensation.

Our labour law attorneys assist employees across South Africa in understanding their rights, challenging unfair dismissals, and pursuing appropriate remedies through the CCMA, bargaining councils, or the Labour Court. We provide clear legal guidance and strong representation to ensure that employers are held accountable where they fail to comply with the law.

Dismissals for Incapacity

Dismissal for incapacity occurs when an employee is unable to perform their job due to ill health, injury, or poor work performance. Unlike misconduct, incapacity does not involve wrongdoing by the employee.

Where incapacity arises from illness or injury, employers are required to properly assess the employee’s medical condition, consider reasonable accommodations, and explore alternatives before dismissal. This may include adjusting duties, allowing time for recovery, or considering alternative positions within the organisation.

In cases of poor work performance, employers must provide guidance, training, and reasonable opportunity for the employee to improve before termination is considered.

If an employer fails to follow these steps or dismisses an employee prematurely without proper assessment or consultation, the dismissal may be unfair and open to legal challenge.

Dismissals for Operational Requirements

Dismissals for operational requirements, commonly referred to as retrenchments, occur when an employer terminates employment due to the operational needs of the business. This may arise from economic difficulties, restructuring, technological changes, or redundancy.

South African law requires employers to follow a strict consultation process before retrenching employees. Employers must engage meaningfully with affected employees or their representatives, explore alternatives to retrenchment, and apply fair selection criteria.

Where employers fail to consult properly, act in bad faith, or use retrenchment as a disguise for another reason, the dismissal may be procedurally or substantively unfair. Employees in these circumstances may challenge the dismissal and seek compensation or reinstatement.

Automatically Unfair Dismissals

Certain dismissals are considered automatically unfair under South African labour law because they violate fundamental employee rights. These dismissals occur when an employee is terminated for reasons that the law specifically prohibits.

Examples include dismissals based on pregnancy, participation in lawful trade union activities, whistleblowing, exercising workplace rights, discrimination, or refusing to perform unlawful acts. Employees who are dismissed after reporting wrongdoing or asserting their legal rights are also protected.

Automatically unfair dismissals are treated with particular seriousness by the Labour Court because they undermine constitutional rights and workplace protections.

Employees who succeed in these claims may be entitled to significantly higher compensation than ordinary unfair dismissal claims.

When Can You Claim?

If you believe that your dismissal was unfair, you may have the right to refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council. In most cases, the referral must be made within 30 days of the dismissal.

Depending on the type of dismissal and the circumstances involved, the matter may proceed to arbitration or the Labour Court.

Our attorneys assist clients at every stage of the process, from initial assessment of the claim to representation during conciliation, arbitration, or litigation.

Compensation and Remedies

Employees who successfully challenge an unfair dismissal may be entitled to several remedies under the Labour Relations Act. These include reinstatement to their position, re-employment, or financial compensation.

For ordinary unfair dismissal claims, compensation is generally limited to a maximum of 12 months’ remuneration. However, in cases of automatically unfair dismissal, compensation may be up to 24 months’ remuneration, which is double the compensation available in ordinary claims.

In certain circumstances, employees may also pursue additional delictual damages where the employer’s conduct has caused further harm, such as reputational damage or emotional distress.

Why Choose Our Labour Law Attorneys

Our firm has extensive experience in labour law disputes and is committed to protecting the rights of employees across South Africa. We understand the emotional and financial impact that dismissal can have on individuals and their families, and we work diligently to ensure that every client receives the strongest possible legal representation.

Our attorneys provide strategic advice, thorough preparation, and skilled advocacy in all labour law matters. Whether your case involves misconduct, incapacity, retrenchment, or an automatically unfair dismissal, we are equipped to guide you through the legal process and fight for the best possible outcome.

We pride ourselves on providing clear legal guidance, personal attention, and results-driven representation. Our goal is to help you understand your rights, challenge unlawful conduct, and secure the compensation or remedy you deserve.

If you have been dismissed or believe your rights have been violated in the workplace, contact our team today for a confidential consultation.

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.

CONTACT

Online Training

Online Labour Law Business Training Solutions

Established in 1965, Malcolm Lyons and Brivik Attorneys have a wealth of experience in advising and successfully representing clients in navigating both labour law and labour law dispute resolution processes.

Recognised as leading experts in the field, Malcolm Lyons and Brivik are now offering online labour law training workshops as part of the specialist services provided to small and medium-sized business owners, managers and labour relations or human resources consultants.

Run by our team of experienced lawyers and expert legal consultants, all training workshops can be tailored to meet your specific business needs.

R1450 per person (Based on a 1-2 hour workshop)

Topics include:

Sexual Harassment in the Workplace – Employer Duties and Employee Rights

This workshop will
(i) provide an overview of the laws relating to sexual harassment in the workplace
(ii) empower employers and employees to comply therewith; and
(iii) assist employers to respond appropriately when sexual harassment occurs.

Workplace Discrimination and How to Address it

This workshop will
(i) provide an overview of the relevant laws relating to discrimination in the workplace
(ii) empower employers and employees to comply therewith
(iii) provide guidance regarding fair and unfair discrimination; and
(iv) assist employers to respond appropriately when workplace discrimination occurs.

Pregnancy in the Workplace: The Laws Pertaining to Pregnant Job Applicants and Employees

This workshop will
(i) provide an overview of the laws relating to pregnancy and maternity in the workplace,
(ii) empower employers and employees to comply therewith
(iii) assist employers in respecting the rights of pregnant job applicants and/or employees as well as those entitled to maternity or other family responsibility-related benefits; and
(iv) provide guidance regarding fair termination of employment (including retrenchment) in appropriate circumstances.

Disciplinary Codes – Workplace Offences and Legally Defensible Sanctions

This workshop will
(i) provide an overview of the laws relating to misconduct in the workplace
(ii) empower employers and employees to comply therewith
(iii) provide guidance regarding the creation and consistent application of a disciplinary code; and
(iv) assist employers to respond in a legally defensible manner when misconduct occurs.

Employee Duties – What can Employers Reasonably Expect of Employees in the Workplace?

This workshop will
(i) provide an overview of employers’ rights and the duties of employees in the workplace
(ii) empower employers and employees to comply therewith; and
(iii) assist both employers and employees to understand what employers can reasonably expect of employees in the workplace.

When to Counsel, Accommodate, Discipline or Terminate: Managing Poor Performance, Incapacity, Incompatibility and Misconduct

This workshop will
(i) provide an overview of the laws relating to the day-to-day management of employees in the workplace; and
(ii) empower employers to comply therewith by providing guidance regarding when and how to counsel, accommodate, discipline or terminate employment.

Retrenchments – A Practical Guide for Employers

This workshop will
(i) provide an overview of the laws relating to retrenchment; and
(ii) empower employers to comply therewith by providing guidance regarding legally defensible methods of selection, consultation, and process finalisation

Substantively and Procedurally Fair Dismissals – A Practical Guide for Employers

This workshop will
(i) provide an overview of the laws relating to dismissals in the workplace; and
(ii) empower employers to comply therewith by providing practical guidance aimed at ensuring that dismissals are affected both for fair reasons and in a manner that is legally defensible as procedurally fair.

Unfair Constructive Dismissals – When Employees Resign Due to Intolerable Working Circumstances

This workshop will
(i) provide an overview of the laws relating to, and remedies available to, employees who resign due to intolerable working circumstances – including circumstances of workplace discrimination; and
(ii) assist employers to avoid; alternatively, respond appropriately to (automatically) unfair constructive dismissal claims.

Poor Work Performance – A Practical Guide for Employers

This workshop will
(i) provide an overview of the laws relating to poor work performance; and
(ii) assist employers to respond appropriately when poor work performance occurs.

For more information about our online labour law business training solutions contact us below:

Telephone:
Cape Town Office:
Telephone: +27(0) 21 425-5570
E-mail: Cape.office@mlblegal.co.za

Johannesburg Office:
Telephone: +27(0) 11 268 6697
Email: Jhb.office@mlblegal.co.za