Which side to show

Labour law · Cape Town

We act for both sides. That is the point, not the compromise.

Audi alteram partem — hear the other side. It is the first rule of a fair hearing, and it is why an employer who knows what the employee will be advised is in a better position than one who does not, and the same in reverse.

So this site answers every question twice, in the same words we would use to your opponent. Nothing here is written to make either of you feel better about a weak case.

021 000 0000Start with dismissal
About twelve people seated in a loose semicircle in a plain hall: two in blue and orange work overalls, a woman in a headscarf, a man in a suit jacket, several taking notes, one laughing, with a presenter standing at the edge of the circle.

A Saturday session in a community hall in Mitchells Plain. Overalls, a supermarket uniform and a suit jacket in the same semicircle, being told the same thing about the same Act.

Nobody in this room outranks anybody

Five rules, twice each

The same law, from where you are standing.

A dismissal has to be fair, and it has to be fairly done.

If you are the employer

Two separate tests, and you must pass both. Most employers who lose at the CCMA had a good reason and a bad process: no proper notice of the allegations, no chance to state a case, a chairperson who had already made up their mind. The reason was never the problem.

If you are the employee

Two separate tests, and the employer must pass both. If the reason was good but the hearing was a formality, the dismissal can still be unfair — and procedural unfairness is the ground employees most often have without knowing it.

Thirty days.

If you are the employer

A referral outside thirty days needs condonation, and condonation is not automatic. It is worth knowing the date, because an employee who is late has a hurdle before they reach the merits — and worth not relying on, because commissioners grant it more often than employers expect.

If you are the employee

Thirty days from the date of dismissal to refer an unfair dismissal to the CCMA. Ninety for an unfair labour practice. Late referrals can be condoned, but you have to apply and show good cause, and "I did not know" is a weak reason. Refer first, argue later.

You may not simply bring your attorney to the arbitration.

If you are the employer

In a misconduct or incapacity arbitration, legal representation is not a right. The commissioner decides, on the complexity of the matter and the comparative ability of the parties. Budget for the possibility that you argue it yourself, with us behind you rather than beside you.

If you are the employee

The same rule protects you. An employer who arrives with senior counsel while you appear alone is exactly the imbalance the rule exists to prevent, and it is a factor the commissioner must weigh. We prepare employees to run their own arbitration where that is how it falls.

What it is worth, if it is unfair.

If you are the employer

Compensation for an ordinary unfair dismissal is capped at twelve months’ remuneration, and awards are usually well below the cap. Reinstatement is the primary remedy in law, which employers consistently underestimate when deciding whether to settle.

If you are the employee

Up to twelve months’ remuneration, or twenty-four where the dismissal was automatically unfair. But reinstatement is the default remedy, not money — and if you want your job back rather than a payment, say so at the referral stage rather than at the arbitration.

Most of these settle, and the good ones settle early.

If you are the employer

A matter settled at conciliation costs a fraction of one arbitrated, and it does not produce an award that your next dismissal will be measured against. We will tell you when your case is weak, which is the only way that advice is worth anything.

If you are the employee

An offer at conciliation is usually lower than an award and arrives two years sooner. Neither is automatically the right answer. We will tell you what your case is actually worth, including when it is worth less than you were told by somebody at work.

The same for both of you

Four time limits. None of them care whose side you are on.

This is the one part of labour law that is genuinely neutral. A date missed is a date missed, and it is the commonest way a good case becomes no case at all.

30 days

Unfair dismissal

From the date of dismissal, to refer to the CCMA

90 days

Unfair labour practice

Promotion, demotion, benefits, probation, suspension

30 days

After a certificate

To request arbitration once conciliation has failed

60 days

Large-scale retrenchment

The s189A consultation period, before notice may be given

The obvious question

“How can you act for both?”

Never in the same matter

We act for one party in any given dispute. If we already act for your employer, or for the employee who has referred against you, you will be told on the first call and before you have said anything about the merits.

The conflict check happens first

Before a consultation, not after it. It takes about two minutes and it is the reason we ask for the other party’s name before we ask what happened.

Knowing both playbooks is the service

We chair disciplinary hearings for employers and we prepare employees to sit in them. Each of those makes us better at the other, and neither is a side business.

What it means for your file

Nothing you tell us is shared, whichever side you are. A firm that would carry your opponent’s information across the corridor would carry yours, and would not be worth instructing either way.

What it costs

Two schedules, because the two of you are not in the same position.

An employer is buying predictability and usually wants a retainer. An employee is out of work and cannot pay an hourly rate at all. Pretending otherwise would be a way of only really acting for one of you.

Employers

Monthly retainer, under 50 employees
R7,500
Monthly retainer, 50 to 200 employees
R16,500
Chairing a disciplinary hearing
R9,500 a day
CCMA conciliation
R11,000
CCMA arbitration
From R24,000
Section 189 process, start to finish
From R45,000

Employees

First consultation, 45 minutes
No charge
Referral drafted and lodged
R2,800
Preparing you to run your own arbitration
R6,500
CCMA conciliation, with you
R8,500
CCMA arbitration, where representation is allowed
From R19,000
Contingency, where the claim justifies it
Capped by statute

Tell us which side you are on, and then tell us what happened.

We will run the conflict check, tell you whether you have a case, and tell you what it is worth. If the answer is that you should settle, you will hear that on the first call.

021 000 0000Or write to us