Our Employment practice

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

Groundbreaking Matters

"They are always ahead of the game and on top of things that are happening in the industry,"

Chambers Global 2018

"They perform above expectations."

Chambers Global 2018

"We are very happy with the speed with which we get feedback from them."

Chambers Global 2018

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 advising Eskom Holdings SOC Limited with regard to an essential services dispute before the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa.  South Africa-based, Eskom is the largest electricity producer in Africa, so the outcome of this matter is of particular national significance. 

    The generation, transmission and distribution of power is deemed to be an essential service under South African law and is the subject of a minimum services agreement between the government and several energy & natural resources companies, including Eskom.  However, the National Union of Mineworkers (NUM) and the National Union of Metalworkers (NUMSA) refused to abide by the agreement as they were opposed to the definition of 'general workers'. 

    The unions were of the view that the agreement was too restrictive and that the definition of general workers precluded employees designated as such from participating in industrial action.  The matter is now being heard at the Essential Services Commission.

    Our work on this matter is a strong example of the skills for which this team has earned its strength of reputation.  Our team is advising the continent’s leading electrical energy producer in a headline dispute relating the labour law aspects of the provision of essential energy service in South Africa.  The issues at hand are highly complex, the negotiations are taking place at the highest levels and the outcome has huge ramifications for South Africa.

  • Cliffe Dekker Hofmeyr advised repeat client, Lonmin Platinum, representing its interests at the Marikana Commission of Inquiry chaired by retired Judge Farlam and his two Commissioners.  This Judicial Commission of Inquiry investigated the causes of the death of 44 persons (including 34 striking miners) in August 2012 during the Marikana miners' strike which received extensive media coverage. 

    Work in the period under review on this case included advising with regard to a review of Lonmin's role in the crisis that developed in the platinum sector at that time.  This was clearly a business-critical matter for the client, with enormous implications for all relevant role players.  Our team was able to play a lead role.

  • Cliffe Dekker Hofmeyr advised Lonmin, the UK-based mining giant and an anchor clients of the firm, in this major dispute which was a highly significant in respect of the protracted nature of the devastating impact of the strike across the platinum sector.  Our team counselled Lonmin at the highest strategic levels in its handling of all issues of labour law throughout this difficult period.
    This case called into question the application of the principle of Boulwarism (not previously considered in our law).  That is, whether a protected strike marred by violence and bad faith bargaining could lose its protected status as well as the right of employers to unilaterally implement their final wage proposals.  Only a Tier One team is capable of handling all of the high end, complex issues we have faced alongside our client during this case.  Our ability to guide the client at every stage – offering commercial, legal and strategic advice at the highest levels has been of major commercial benefit to the client.

  • Cliffe Dekker Hofmeyr is advising Arcelormittal South Africa Limited, a leading playing in the energy & natural resources sector.  Our employment law team has been advising the client with regard to its labour broker strategy.  Arcelormittal’s business is primarily reliant on labour brokers to restructure their business operations so as to minimise the risk and cost.  The recent changes in South Africa’s employment laws have had a very significant impact on the company’s operations.  Our team has been called to guide the client in each step of the implementation of a new compliance programme to ensure Arcelormittal’s restructuring plans meet the new requirements.

    Our work on this matter demonstrates very clearly the Tier One nature of the experience to which clients of our employment team have access.  Our lawyers have been able to handle all of the issues raised by Arcelormittal’s complex workforce restructuring, helping the client to comply with changing labour legislation.

  • Cliffe Dekker Hofmeyr is advising Standard Bank, one of the four largest financial institutions operating in our country.  Historically, Standard Bank employed only permanent employees who worked a fixed number of hours per week, from Monday to Friday.  As the requirements of Standard Bank's business changed in accordance with customer demand, there was a need to introduce a more flexible work force.  This was achieved by the introduction of TES employees.

    Standard Bank currently makes use of circa 5000 temporary employees, most of which are TES employees.  TES employees are not provided with the same terms and conditions of employment as permanent employees and do not have any benefits or work the same business hours as permanent employees. 

    As a result of further developments in the business world, including digitisation and customer self-service, there will a reduction in the number of Standard Bank branch networks, resulting in a reduction of branch staff.  In addition, Standard Bank has recognised that a number of the TES employees currently being utilised are required on a permanent basis and not merely as temporary employees.  Accordingly, Standard Bank intends to employ circa 10 per cent of its temporary workforce on a permanent basis.
    The changes Standard Bank is making in the composition of its employee-base are taking place again the backdrop of the new employment legislation which came into force in January 2015.  Our work on the implementation of this major employee redeployment process for the bank demonstrates once again how we are able to advise on major labour law programmes, helping our clients anticipate and comply with fast-changing legislation affecting their operations.

  • Cliffe Dekker Hofmeyr is advising firm anchor client, Eskom, the largest electricity producer in Africa with regard an application brought by the client to review and set aside the ruling issued by the CCMA of November 2014. 

    As a result of our work with Eskom, the Commissioner dismissed to key points in limine raised on behalf of the client:

    The first related to the jurisdiction of the CCMA to arbitrate in an alleged unfair discrimination dispute under the Employment Equity Act given the timing of the case.  The dispute therefore had to be referred to the Labour Court. 

    The second was that NUMSA (a major union – see more above) and its members were obliged to exhaust the remedies provided in terms of a grievance procedure which is a collective agreement between Eskom and NUMSA, prior to referring the dispute to the CCMA.

    These major labour law matters of first impression were of key importance to our client.  We were able to guide the client to a successful outcome thanks to our deep working knowledge of the relevant law.  The decisions set important precedents for the sector in South Africa.
  • 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 cross-practice.  Our employment law team has been appointed as the lead attorney in advising on an 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), 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 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 represented the Anglo Platinum, a leading platinum group metals miner with operations at the Rustenmburg 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.  

Practice Area Rankings

  • Chambers Global 2014–2018 ranked our Employment practice in Band 2 for employment.
  • The Legal 500 EMEA 2009–2018 ranked our Employment practice in Tier 2 for employment law.
  • Our practice was identified as leading in The International Who’s Who of Management Labour and Employment Lawyers 2013.

Ranked Practitioners

  • Aadil Patel is the National Practice Head of the Employment team. Chambers Global 2015–2018 ranked him in Band 2 for employment. The Legal 500 EMEA 2012–2018 recommended him for employment. Best Lawyers International 2018 listed him for labour and employment law. 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 2017–2018 ranked Gillian Lumb in Band 4 for employment. The Legal 500 EMEA 2012–2014 and 2017–2018 recommended her for employment.

  • Best Lawyers International 2018 listed Gillian Lumb for labour and employment law.

  • Chambers Global 2014–2018 ranked Hugo Pienaar in Band 2 for employment. The Legal 500 EMEA 2014–2018 recommended him for employment. Best Lawyers International 2018 listed Hugo for labour and employment law. He was named as the exclusive South African winner of the ILO Client Choice Awards 2017 in the employment & benefits category.

  • Chambers Global 2018 ranked Fiona Leppan in Band 2 for employment. Chambers Global 2016–2017 ranked her in Band 3 for employment. The Legal 500 EMEA 2012–2018 recommended her for employment. Best Lawyers International 2018 listed Fiona for labour and employment law. 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.

  • Best Lawyers International 2017–2018 listed Samiksha Singh for employee benefits law.

  • Chambers Global 2018 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.