Cato Attorneys is a leading employment and labour law firm based in Cape Town. Guided by extensive expertise and years of experience, our specialist labour lawyers have helped hundreds of clients to achieve successful outcomes and are ready to fight for your rights.
We offer a full range of employment and labour related legal advice and services to both employers and employees, with a strong focus on dispute resolution. We pride ourselves on providing our clients with high quality, professional and accessible legal advice and services.
As a specialist practice rather than a general practice, we ensure that our clients always receive the best possible legal expertise, advice and assistance in any employment and labour law related matter. Often labour disputes move at lightning speed and with high stakes on the line, you really can't afford anything less than a specialist!
Our firm offers a free consultation and will work to find the most cost-effective solution for you. In qualifying labour litigation cases we undertake to represent clients on a "no win, no fee" basis. Contact us to find out more!
an overview of SOME OF OUR SERVICES
Our comprehensive range of dispute resolution and litigation services include:
We offer a full range of advisory and employment related services which include:
Drafting customised and tailored legal documents including:
fREQUENTLY ASKED QUESTIONS
DISMISSALS
The Labour Relations Act (LRA) distinguishes between two types of unfair dismissals, namely (i) automatically unfair dismissals; and (ii) other unfair dismissals. Generally, there must be a fair reason (substantive fairness) for a dismissal and a fair procedure must be followed (procedural fairness) in effecting the dismissal. Both must be fair for the dismissal to be fair. Identifying the correct category of dismissal is critical in ensuring that both the reason and the procedure is fair; and the best time to get expert advice is therefore before any steps are taken in seeking to effect or challenge a dismissal.
Conduct; capacity (poor performance or ill-health); retrenchments.
An automatically unfair dismissals is as the name suggests and usually involves a dismissal of an employee based on or related to any discriminatory ground like pregnancy, age, race, religion, etc.
A constructive dismissal occurs when an employer makes the working environment impossible for the employee to endure, forcing the employee to resign.
All disputes start at the CCMA or Bargaining Council, and will, depending on the nature of the dispute, either be arbitrated at the CCMA or Bargaining Council or will be adjudicated by a Judge at the Labour Court.
Section 191(1)(a) and (b) of the LRA requires an employee disputing the fairness of a dismissal to refer the dispute in writing to the CCMA or the Bargaining Council within 30 days of the date of dismissal or, if it is a later date within 30 days of the employer making a final decision to dismiss or uphold the dismissal.
unfair labour practices
An unfair labour practice is any unfair treatment by an employer of an employee or job applicant. There are a limited number of unfair labour practices that the Labour Relations Act (LRA) defines. Section 185 of the LRA states that “every employee has the right not to be subjected to an unfair labour practice.”
An unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving:
- The unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee
- The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee
- The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement
- An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000, on account of an employee having made a protected disclosure as defined in that Act.
All disputes start at the CCMA or Bargaining Council, and will, depending on the nature of the dispute, either be arbitrated at the CCMA or Bargaining Council or will be adjudicated by a Judge at the Labour Court.
An employee must refer a dispute within 90 days from the date of
the act or omission which allegedly constitutes an unfair labour
practice or, if it is a later date, within 90 days of the date which the
employee became aware of the act occurrence.
UNFAIR DISCRIMINATION
Unfair discrimination occurs when an employer shows favour, prejudice or bias for or against a person on a prohibited ground, including a person’s 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 or birth, or on any other arbitrary ground.
Any employee who feels that he/she has been unfairly discriminated against
or that an employer has contravened the laws must lodge a grievance in
writing with their employer. If unresolved the matter may thereafter be referred to the
CCMA within 6 (six) months. If
the CCMA is not able to resolve the dispute through conciliation, the matter
can either be referred to arbitration if the employee earns less than the
amount set by the Minister of Labour. If the employee earns above the amount
referred to in the BCEA, the matter may be adjudicated by the Labour Court.
sexual harassment
Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation. Sexual attention becomes sexual harassment if:
- the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or
- the recipient has made it clear that the behaviour is considered offensive; and/or
- the perpetrator should have known that the behaviour is regarded as unacceptable.
A complaint of sexual harassment may be referred to the CCMA for conciliation within 6 (six) months after the act or omission that allegedly constitutes unfair discrimination (sexual harassment). An applicant may apply for condonation where the dispute is referred after six months. All disputes relating to alleged unfair discrimination, including sexual harassment, are conciliated by the CCMA. Where the matter remains unresolved at conciliation, the applicant has a choice between referring the matter to the CCMA for arbitration or to the Labour Court for adjudication. An applicant has ninety (90) days in which to refer the matter for arbitration or to the Labour Court.
If it is found that an employee has been unfairly discriminated against,
an arbitration award may include an appropriate order that is just and
equitable in the circumstance including payment of compensation,
payment of damages and an order directing the employer to take
steps to prevent the same unfair discrimination or a similar practice
occurring in the future in respect of other employees. The Labour
Court has broader powers that also include the publication of the
Court’s order.
DISCIPLINARY HEARINGS
A formal hearing does not always need to be held, but it is about ensuring that an employee is given the opportunity to properly respond to whatever the employer’s concerns might be.
The hearing itself should be preceded by:
– an investigation into the issues;
– notification of the allegations;
– an opportunity for the employee to state a case in response;
– a reasonable time before the hearing to prepare a response.
As any sanction that is imposed must be for a fair reason and after having followed a fair procedure, a legally qualified and experienced chairperson will ensure that the correct legal principles are applied and that the process is handled fairly.
If the process is handled correctly at this stage, and a fair result is the outcome, the matter will not be successfully challenged at the CCMA, a Bargaining Council or the Labour Court.
A formal disciplinary hearing does not always need to be held, and is largely dependent on the issue at hand, and one should seek the correct legal advice before making a decision as to whether a formal hearing should be held or not.
CCMA, bargaining councils and the labour court
The CCMA or a Bargaining Council is where all disputes are initially lodged and will, depending on the nature of the dispute, either be dealt with at the CCMA or Bargaining Council, or will be adjudicated by a Judge at the Labour Court.
The Labour Court functions include Granting interdicts to prevent unprotected strikes; Making settlement agreements an order of the Court; Reviewing and setting aside unsatisfactory arbitration awards; hearing disputes involving retrenchments involving more than one employee; Automatically unfair dismissals for reasons related to for example pregnancy, race, and age.
Conciliation is not only the first step in the dispute resolution / litigation process, but is a compulsory step, in resolving any dispute, and a failure to refer a dispute to conciliation may mean that an employee cannot further proceed with a claim.
Conciliation is an attempt, with the assistance of a commissioner, to try and amicably resolve the dispute.
The commissioner can only advise and assist both parties to try and reach a settlement, but the commissioner cannot make a decision in favour of either party at the conciliation stage.
Arbitration takes place when a matter has not been resolved at conciliation. The commissioner will listen to the case presented by the parties and will then make an arbitration award which decides the matter in favour of either the employer or the employee. An arbitration is like a trial at which the parties will be required to present evidence to prove their cases, call witnesses, cross-examine the other side’s witnesses, and present argument why the commissioner should find in their favour, which is why it is critical to obtain proper legal advice in preparing for the arbitration.
Con-Arb is when the arbitration occurs on the same day as the conciliation in the event of the conciliation being unsuccessful. Either party may object to the arbitration proceeding immediately after the conciliation so that the arbitration is held at a later date, but there are rules which must be strictly adhered to in filing such an objection.