Our Employment practice

delivers proactive solutions to the challenges our clients face in the management of their people.

Groundbreaking Matters

Clients appreciate the firm’s timeliness and provision of relevant updates regarding employment law. One source summarised the group’s strengths as “excellent service; they’re always attentive and understanding of our time constraints. We are always included in client seminars and newsletters, including notification of ground-breaking court rulings.”

Chambers Global 2019

Dispute resolution

We support our clients by appearing in all employment-related forums including the Commission for Conciliation, Mediation and Arbitration (CCMA), Statutory Councils, Labour Court, Labour Appeal Court, High Court, Supreme Court of Appeal and Constitutional Court. We also assist our clients with private arbitrations. We represent our clients in their dealings with the Department of Labour.

Our expertise extends to advising and representing clients in the following disputes:

  • Unfair dismissals
  • Unfair labour practices
  • Organisational rights
  • Collective agreements
  • Lock-outs
  • Strikes
  • Alleged non-compliance with the Employment Equity Act (EEA)
  • Unfair discrimination
  • Non-payment of wages, overtime, leave and severance pay

Consulting

We advise clients and give opinions on a wide range of non-litigious employment law matters and commercial matters with employment law implications. 

We undertake the following:

  • Corporate restructuring exercises 
  • Offer a step-by-step guide on the retrenchment process
  • Manage the restructuring process
  • Draft all notices and documentation
  • Consult with trade unions, employees and their representatives
  • Scrutinise minutes from consultation meetings
  • Advise on selection criteria
  • Formulate severance packages
  • Draft retrenchment agreements
  • Represent clients at CCMA or bargaining council facilitation meetings

  • Disciplinary proceedings
  • Draft notices of disciplinary hearings
  • Assist in preparing for disciplinary hearings
  • Represent our clients at hearings, when permissible

  • Performance management issues
  • Manage poor performers
  • Introduce performance management systems and employee grading systems

  • Transfer of a business as a going concern
  • Valuation and apportionment of liability
  • Restructuring of a joint venture, merged entity or service provider following transfer

  • The impact of a merger on employees 
  • Assist in the consultative process with employees and their representatives
  • Prepare the necessary impact reports and documentation to support a merger filing with the Competition Commission

  • We advise clients of their obligations under the following Acts
  • Basic Conditions of Employment Act (BCEA): Annual leave, leave pay, sick leave and overtime
  • EEA: How to draft an employment equity plan and report
  • Compensation for Occupational Injuries and Diseases Act: Reporting obligations in cases of injuries on duty
  • Employment Services Act
  • Occupational Health and Safety Act (OHSA)

Industry Expertise

Our Employment team works extensively in an ever-expanding list of industries including:

  • Aviation
  • Banking
  • Catering and hospitality 
  • Cellular services
  • Chemical
  • Financial services
  • Insurance
  • Luxury goods
  • Mining
  • Media and telecommunications
  • Pharmaceutical
  • Petroleum
  • Retail
  • Transport
  • State-owned enterprises
  • Government departments

Training

To help guide clients through the intricacies of employment law, we present seminars and run customised training sessions and workshops on a range of issues, including how to run disciplinary hearings and how to prepare for and run arbitrations. 

We develop compliance checklists that are designed to help companies avoid or minimise costly employment disputes.   

We keep clients informed on proposed legislation and regulations affecting aspects of the employment relationship, and support clients with seminars, conferences and specialist newsletters and email alerts.

Drafting

We draft a wide range of agreements, reports, policies, guidelines and procedures including:

  • Contracts of employment for executives, managers, permanent employees and employees employed for a fixed term or specific task
  • Collective agreements at all bargaining levels
  • Severance and settlement agreements
  • Restraints of trade and confidentiality agreements
  • Agreements contemplated by s197 of the Labour Relations Act (LRA)
  • Valuation and apportionment agreements in relation to transfers of businesses, undertakings or services
  • Temporary employment services agreements
  • Training agreements
  • Independent contractor agreements 
  • Disciplinary and grievance regulations and procedures, warnings and dismissal notices
  • Lock-out notices and ultimata
  • Codes on sexual harassment, retrenchment, picketing, social networking and various others

Alternative dispute resolution and collective bargaining

We chair various hearings on behalf of our clients, including grievance, disciplinary and appeal hearings. We also mediate employment disputes and assist in collective bargaining. 

Public law

We advise on the Constitution and the influence it has on the operations of both public and private organisations and corporations. We advise government departments and state-owned entities on wide-ranging legislation.

Auditing

We undertake statutory or collective agreement compliance audits, including assessing whether the client’s terms and conditions of employment comply with the BCEA, a collective agreement, an arbitration award or Labour Court ruling.

Occupational health and safety

In terms of the OHSA, we conduct accident investigations and represent clients in serious incident and fatality inquiries. We also conduct legal compliance audits and advise on health and safety policies and procedures.

Due diligence

We undertake employment law due diligences in relation to the transfer of a business, undertaking and service as a going concern, or the purchase of shares. The results of this process form the basis of the warranties and valuation and apportionment agreements required under s197 of the LRA.

Corporate immigration

We assist international and South African companies with the immigration requirements associated with the import of foreign skills and relocation of expatriates and their families. 

Our services include:

  • General work permits
  • Intra-company transfer work permits
  • Special skills work permits
  • Section 11(2) business visitors’ visas
  • Quota work permits
  • Visa applications for spouses and dependent children
  • Study permits
  • Permanent residence applications
  • Temporary residence status within the borders of South Africa

We assist with legal queries regarding immigration-related issues; especially the current requirements of the Department of Home Affairs.

Employee benefits

We assist public officers and other representative taxpayers with the onerous obligations of related tax provisions including:

  • The application of pay-as-you-earn to independent contractors and fringe benefits
  • Share schemes
  • Other benefits employers must provide

We help clients to identify potential non-compliance and to restructure employment benefits (including share incentive schemes) to improve tax efficiency. 

We assist with pension and provident funds and retirement benefits.

The Companies Act

The Companies Act, which came into effect on 1 May 2011, has a significant impact on employment relationships. From an employment law perspective, our team of experts can:

  • Advise on the impact of the Act on:
  • Policies
  • Processes
  • Employment agreements
  • Collective relationships and agreements
  • Conduct audit compliance with the Act
  • Redraft policies, processes and agreements to ensure compliance with the Act
  • Provide training on clients’ responsibilities under the Act

Some of the more significant areas in which the Act impacts on employment relationships are:

  • Removal of directors
  • Extended director, prescribed officer and committee member liabilities
  • Indemnities and insurance for directors, prescribed officers and committee members
  • Whistle-blower protections
  • Employee, board and statutory committees
  • Share incentive schemes
  • Mandatory notices to employees and unions
  • Retrenchments during business rescue processes
  • Extended union rights (eg access to sensitive financial information)
  • Cliffe Dekker Hofmeyr is representing the City of Cape Town, one of South Africa’s largest metropolitan municipalities and an important repeat client of the firm across practice areas. Our employment law team has been appointed as the lead attorney in advising on the alleged fraud perpetrated against the City by employees of services providers involved in the City's MyCiti public transport system.  Our strategic and legal counsel focuses on possible breaches of the Municipal Finance Management Act as read with all applicable local government legislation and by-laws, including an action for damages.   

  • Cliffe Dekker Hofmeyr is representing Sibanye, the largest individual producer of gold from South Africa and one of 10 largest gold producers globally. Our employment team is advising this client in the Constitutional Court matter of Sibanye/M Bester. The case relates to an assessment of racism in the workplace and, more particularly, deals with the question of direct and indirect racism. This dispute is not about defamation or injuria, but rather it focuses on statements which are actually racist or perceived to be racist in the workplace and which have the potential of causing divisions between workers and disrupting workplace harmony. The matter emanates from the Labour Appeal Court and was referred to the Constitutional Court on appeal. 

  • Cliffe Dekker Hofmeyr has represented ArcelorMittal South Africa Limited (AMSA), a company part of the globally-renowned steel conglomerate, on a number of employee restructuring exercises at its various operations based in Vanderbijlpark and in Vereeniging. We have assisted AMSA during the entire Section 189 process; the development of voluntary separation packages; and the retrenchment of employees. We have also led work for this client in its dealings with the majority unions flowing from the restructurings. We continue to advise AMSA in the implementation of the ensuing cost reduction process.

  • Cliffe Dekker Hofmeyr is representing Victoria & Alfred Waterfront, a massive mixed-used development which comprises of both residential and commercial developments and attracts more than 23 million visitors per year. Our employment law team led work in a major investigation into an alleged fraud committed by a Senior Executive employed by SAW, and the employee’s subsequent termination. Following the completion of the investigation, legal action for the recovery of damages has been instituted against the Senior Executive.

  • Cliffe Dekker Hofmeyr continues to represent Anglo Platinum, a leading platinum group metals miner with operations at the Rustenburg Platinum Mine. Our employment team has been leading work for this client in proceedings before the Labour Appeal Court involving the use of racist and derogatory language in the workplace.
  • Cliffe Dekker Hofmeyr have advised and continue to advise Uber B.V., a legal entity resident in the Netherlands; and Uber South Africa Technology Services (Pty) Ltd, a legal entity resident in South Africa, regarding Uber B.V.'s smartphone application ("the Uber App") that connects independent operators with riders in South Africa.  Our employment team has been leading work for these clients regarding the status of partner-drivers and drivers in South Africa.  This includes advising on whether partner-drivers and drivers may be found to be employees under South African employment law.  We were successful in obtaining a ground-breaking judgment before the Labour Court that the affected partner-drivers and drivers are not employees of Uber SA.  We have also advised on the partner-drivers’ and drivers’ endeavours to unionise and the organisation's strategy and response to unionisation as well as other employee-related issues in South Africa.

    Seven drivers and their unions referred alleged unfair dismissal disputes to arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), alleging that Uber SA was their employer.  Uber SA disputed this claim in an important test case.  In July 2017, the CCMA ruled in favour of the partner-drivers and drivers, finding that they were the employees of Uber SA.  Uber SA made an application to the Labour Court, which reviewed and set aside the CCMA's ruling, finding that the affected partner-drivers and drivers were not employees of Uber SA.  Drivers have since referred alleged unfair dismissal disputes against Netherlands-based Uber B.V., which we represented in disputes which examined the drivers’ relationship with Uber B.V. (as opposed to Uber SA).  The status of Uber B.V.'s partner-drivers and drivers has received significant attention in the media globally and has been challenged in countries around the world.  We were successful in defending the claim before the CCMA.  The Labour Relations Act, 1995 was found not to apply and accordingly, the CCMA had no jurisdiction in relation to Uber B.V.  Both this CCMA ruling and the judgment of the Labour Court are critical to Uber’s continued operation in South Africa
  • Cliffe Dekker Hofmeyr is providing strategic advice for Sibanye Stillwater, the largest individual producer of gold from South Africa and one of 10 largest gold producers globally, in respect of their wage dispute with union, AMCU at Sibanye Gold. We represented Sibanye Gold at the Labour Court on a challenge by AMCU to have the extension of the wage agreement set aside on an application of the principle of legality. This important aspect of the dispute is destined for the Constitutional Court.

Practice Area Rankings

  • Chambers Global 2014–2019 ranked our Employment practice in Band 2 for employment.
  • The Legal 500 EMEA 2009–2019 ranked our Employment practice in Tier 2 for employment law.

Ranked Practitioners

  • Aadil Patel is the National Practice Head of the Employment team. Chambers Global 2015–2019 ranked him in Band 2 for employment. The Legal 500 EMEA 2012–2019 recommended him for employment. He was named as the exclusive South African winner of the ILO Client Choice Awards 2014 in the employment & benefits category. Who’s Who Legal 2017–2018 identified Aadil as a leading labour & employment practitioner. He was identified in The International Who’s Who of Business Lawyers 2014, and in The International Who’s Who of Management Labour and Employment 2011–2014.

  • Chambers Global 2017–2019 ranked Gillian Lumb in Band 4 for employment. The Legal 500 EMEA 2012–2014 and 2017–2018 recommended her for employment.

  • Chambers Global 2014–2019 ranked Hugo Pienaar in Band 2 for employment. The Legal 500 EMEA 2014–2019 recommended him for employment. He was named as the exclusive South African winner of the ILO Client Choice Awards 2017 and 2019 in the employment & benefits category.

  • Chambers Global 2018-2019 ranked Fiona Leppan in Band 2 for employment. Chambers Global 2016–2017 ranked her in Band 3 for employment. The Legal 500 EMEA 2012–2019 recommended her for employment. IFLR1000 2012 recommended Fiona as a leading lawyer. Who’s Who Legal 2017–2018 identified her as a leading labour & employment practitioner. She was identified in The International Who’s Who of Business Lawyers 2014, and in The International Who’s Who of Management Labour and Employment 2011–2018.

  • Chambers Global 2018-2019 ranked Gavin Stansfield in Band 4 for employment. Who’s Who Legal 2017–2018 identified him as a leading labour & employment practitioner.

  • ILO Client Choice Awards 2015-2016 named Michael Yeates the exclusive South African winner in the employment & benefits category. In 2018, he was named the exclusive South African winner in the immigration category.

  • Chambers Global 2010 ranked Faan Coetzee as a leading lawyer in Employment and Labour. Who’s Who Legal - The International Who’s Who of Management Labour and Employment 2008 to 2013: Faan has been selected by clients and peers as being among the world’s leading Management Labour and Employment lawyers. Who's Who Legal - International Who's Who of Business Lawyers 2008, 2009, 2011, 2012 - 2013 lists Faan among the world's leading Management Labour and Employment lawyers. Practical Law Company Which Lawyer? 2008 – 2010 and 2012: Faan is endorsed, "with a practice emphasis on employment and labour law. Strong corporate client base providing advice on restructuring, collective bargaining, general employers' rights, pension funds and medical aid schemes." Legal 500 EMEA 2010 to 2016: Faan is recommended for "his insight, knowledge and promptness" in Labour and Employment Law. Expert Guides 2009 and 2011 rates Faan as a pre-eminent practitioner in Labour and Employment Law.

  • Who’s Who Legal 2018 identified Mohsina Chenia as a leading labour & employment practitioner.