Practice AREA
Employment and Labour Law
MHA’s labour and employment department has advised South African businesses favourably since the firm’s formation. The practice head, Dawn Norton, has over 20 years of experience in the field and has forged a reputation as one of the country’s pre-eminent labour specialists. She is ably supported by a team of professionals.
The department provides a full-spectrum service offering and advises clients on individual and collective aspects of their employment practices, including executive dismissals and industrial action, retrenchment processes, unfair labour practices (promotions, demotions, suspensions), s 197 transfers, discrimination disputes and general industrial relations issues. We appear regularly in the CCMA, bargaining councils, the Labour Court and the Labour Appeal Court.
We offer the following services:
- Advising on disciplinary action and dismissal of employees.
- Drafting and review of employment contracts and HR policies (including disciplinary and grievance procedures, and sexual harassment reporting processes).
- Representation in the CCMA, bargaining councils and Labour Court.
- Preparation of legal opinions on a variety of employment-related matters, including internal dispute resolution processes, employment benefits, recruitment processes, incapacity and poor work performance, and various matters concerning litigation in the Labour Court.
- Training of employees on ER-related matters.
- Chairing of disciplinary hearings (as a presiding officer) or representing the employer (as a prosecutor/evidence leader).
- Advising on matters concerning collective labour law, including strikes and lockouts, communication with unions, and drafting collective agreements.
- Conducting investigations into allegations of misconduct.
- Launching or defending urgent applications in the Labour Court (including interdicts).
- Assisting with the enforcement of restraint of trade clauses.
- Advising on retrenchments (including s 189A large-scale retrenchments).
- Advising on transfers of contracts of employment in terms of s 197 of the LRA.
Our team advises clients that operate in all industries including mining, aviation, education, manufacturing, insurance and telecommunication. We have advised and represented state-owned entities like PRASA, ACSA, Transnet, Eskom Holdings, the Commission for Conciliation Mediation and Arbitration (CCMA), the South African Civil Aviation Authority (SACAA), numerous SETA’s established by the Skills Development Act, and ICASA. We also regularly advise private sector clients such as Diageo SA, Wescoal, AngloAmerican and the Simeka Capital Group (Pty) Ltd.
- Represented PRASA in numerous cases arising from the Public Protector’s ‘Derailed’ report. MHA prosecuted senior executives in internal disciplinary inquiries and then defended the dismissals at the CCMA arbitrations, and later in the Labour Court. The transgressions related to unlawful procurement in terms of the Public Finance Management Act, 1999. One matter was appealed to the LAC in 2023.
- Successfully represented Eskom in an internal enquiry, prosecuting the General Manager of one of the power stations in Mpumalanga.
- Acted as legal representatives on behalf of the Commission for Conciliation, Mediation and Arbitration (CCMA) in a private arbitration against a CCMA senior commissioner.
- Represented Statistics South Africa and Rotek in claims for equal pay for work of equal value brought by employees in terms of the Employment Equity Act, 1998 in the Labour Court.
- Represented Transnet in the national strike in 2022. This included advising on Transnet’s recourse regarding the strike action (replacement labour, no work no pay etc), bringing an urgent application to interdict the strike, advising on essential service provisions, and on the extension of the settlement agreement to minority unions.
- Chairing disciplinary enquiries and defending unfair dismissal disputes in the CCMA on behalf of MTN.
- Represented the Board of the City of Johannesburg Property Company (“CJPC”), successfully opposing an urgent application brought by the CEO, who alleged unlawful conduct on part of the Board for placing her on a precautionary suspension pending an investigation into allegations of misconduct relating to the procurement of PPE items.
- Drafted employment contracts and HR policies for South African National AIDS Council (SANAC); Gauteng Growth and Development Agency; South African MineWorkers Union (SAMWU); Diversity Institute; and Foodbev SETA.
- Chaired disciplinary enquiries, defended unfair dismissal disputes in the CCMA and drafted collective agreements for SA Tourism.
- Chaired internal disciplinary enquiries, defended unfair dismissal disputes at the CCMA and opposed review applications in the Labour Court on behalf of the South African Civil Aviation Authority.
- Advised Diageo SA on the risks of a Section 197 transfer.
- Acted on behalf of ICASA in opposing review applications instituted in the Labour Court.
Reported judgments:
- Botes / City of Johannesburg Property Company (2021) ILJ
- Statistics SA v Molebatsi and others (2019) 40 ILJ 2603 (LC)
- Njikelana v Kruger (2019) 40 ILJ 2371 (LC)
- Blue IQ Investment Holdings v Southgate (2014) 35 ILJ 3326 (LAC)
- Cachalia & others v Vinning (2012) 33 ILJ 611 (LC)
- SAMWU v Emalahleni Local Municipality (2011) 32 ILJ 2196 (LC)
Insights
- South Africa’s strike law fails to balance competing interests, Mail and Guardian and TimesLIVE (15 November 2022)
- Strike Action – Failure to implement a no work no pay principle (8 August 2023)
- Suspended dismissal sanctions have no place in labour law (12 July 2023)
- No shows at the CCMA – Rescission process clarified (6 July 2023)
- Mass Retrenchment – CCMA facilitation is no substitute for conciliation (29 June 2023)
Academic publications
- The Public Sector Wage Arbitration in Essential Services, SALB, October 2000
- Remedies for Unfair Labour Practices: Contemporary Labour Law (“CLL”), December 2006;
- When is a secondary strike “reasonable”: CLL, October 2008;
- In transit: The position of Illegal Foreign Workers and Emerging Labour Law Jurisprudence (2009) 30 ILJ 66;
- What is (and what isn’t) a constitutional matter in the context of labour law (2009) 30 ILJ 772;
- Workers in the shadows: An international comparison on the law of dismissal of illegal migrant workers (2010) 31 ILJ 1521;
- The validity of traditional healers’ certificates: CLL, May 2011;
- When is a suspension an Unfair Labour Practice? ILJ, 2013;
- Amendments to the CCMA Rules, CLL, June 2015
- Fake qualifications and dismissal: Misrepresentation and materiality: CLL, Vol 25, No.10, May 2016
- SETA Mandatory Grants: Employers battle with Minister of Higher Education & Training: CLL, Vol 29. No. 4 February 2020
- Skills Development Levies: Contestation and Court Challenges (2022) 43 ILJ 63
- Tel: +27 11 783 8020
- Fax: +27 11 783 3842
Address
- 2024
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