Duties and Obligations of the Employer of Foreign Nationals
Section 38 of the Immigration Act 13 of 2002 places strict obligations on employers in South Africa to ensure that foreign nationals they hire is legally permitted to work in the country. The legislation outlines not only who may be lawfully employed, but also the due-diligence steps employers must take to verify foreign nationals’ immigration […]
What is a constructive dismissal
In this post we explore what a constructive dismissal is within the context of the South African law. Is there such a thing as constructive dismissal? The answer is absolutely, but tread cautiously … such a dismissal is unfortunately very hard to proof. To make matters worse, the burden of proof is reversed. We see […]
Disciplinary hearing procedures
In South Africa disciplinary hearing procedures are guided by most notably the Labour Relations Act (LRA) and the associated Code of Good Practice: Dismissal (Schedule 8). PRE-DISCIPLINARY INVESTIGATIONS IN THE WORKPLACE It is quite scary to notice that some Employers do not investigate grievances or incidents, that could possibly lead to disciplinary steps to be […]
10 Documents required for a company registration in South Africa
If you are thinking about a company registration in South Africa then your have most probably asked yourself; What documents are required for the incorporation of a company? The following list describes the different documents that will have to be prepared and filed with the Commission to incorporate a new company: It is important to […]
Can employees be banned from recording communications in the workplace
The courts have confirmed that employers do have the right to discipline employees for unlawfully recording workplace activities, where there is a business interest for doing so – it was on this basis that the employee’s dismissal was upheld in NUMSA and Another v Rafee N.O. and Others [2017] 2 BLLR 146 (LC). In the above […]
General outline and checklist for Joint Ventures
Joint Ventures in South Africa require you to take legal consideration before starting. In the post we provide you with a general outline and checlist. JOINT VENTURES: PRELIMINARY MATTERS What is the station of deliberations between the parties to date? Is a confidentiality undertaking required from either, both or all the parties or their affiliates? […]
Effect of Business Rescue on Employees and Contracts
Section 136 of the Companies Act sets out the effect of business rescue on employees and contracts, providing the legal framework for how employment relationships and existing contractual obligations are treated when a company enters financial distress. Because the purpose of business rescue is rehabilitation rather than liquidation, the Act aims to protect employees by […]
Protection for Whistle Blowers (Section 159 of the Companies Act, as Amended)
We see that any provision of a company’s Memorandum of Incorporation or rules, or an agreement, is void to the extent that it is inconsistent with, or purports to limit, set aside or negate the effect of this section 159. From a proper reading thereof, it is save to concluded that it applies to any […]
Retrenchments in terms of Sections 189 of the Labour Relations Act
Retrenchments are becoming a “normal” thing in modern South Africa. Often employers find themselves in difficult financial positions. The employer sometimes has no choice but to retrench some of its employees in order for its business to continue. Some employers however try to use retrenchments to get rid of employees, instead of following eg. Disciplinary […]
Remedies for Unfair Labour Practice
In terms of Section 193(4) of the LRA, we see that it is directed that an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include the following: ordering re-instatement; re-employment; or compensation. It is indeed so […]