employment

Our employment practice area covers all aspects of employment law.

We specialise in the following areas:

litigation: alternative dispute resolution

A major function of the employment law department is the handling of disputes arising out of the employment relationship. Many of these disputes culminate in employment litigation in the Commission for Conciliation, Mediation and Arbitration ("CCMA"), the Labour Court, the Labour Appeal Court, the High Court or in private arbitration. We assist and represent parties throughout the process of dispute resolution.

Much of the employment litigation handled by the department concerns disputes regarding dismissals. We also handle litigation arising out of alleged discrimination, strikes and lock-outs, the review of CCMA arbitration awards, wage and collective bargaining disputes, and disputes over medical and retirement benefit funds.

restructuring and retrenchment planning

The reintegration of South Africa into the international economy has resulted in the expansion of many domestic companies and the acquisition by multinational companies of interests in South African businesses. Major employers are striving to achieve world-class manufacturing standards. Changes in government policies have also resulted in significant transformation initiatives in government, parastatal and private organisations. In many instances, this results in the corporatisation, privatisation or transfer of businesses and organisations, and necessitates the restructuring of those businesses and organisations and their workforces.

Our legal team assists clients in planning this corporate restructuring. We also offer legal advice to clients on procedures to be followed in transferring employees, and in the implementation of retrenchment exercises.

due diligence exercises and corporate transactions

We work in close co-operation with our corporate law colleagues in ensuring comprehensive legal advice on corporate transactions. In particular, we advise on the employment aspects of corporate transactions including privatisations, mergers and acquisitions, takeovers and outsourcing exercises. We regularly conduct due diligence exercises on employment-related aspects of corporations.

employment discrimination law

The right to equality is guaranteed in the Constitution, and in the employment context, this right is given effect to by the Employment Equity Act. The law on unfair employment discrimination is one of our legal areas of expertise. We give legal advice on unfair employment discrimination claims, the lawfulness and implementation of affirmative action measures and policies, medical testing (including HIV-testing of employees and applicants for employment), as well as sexual harassment and victimisation of employees. In addition, we advise clients on the right to privacy in employment.

public law employment issues

We advise on the impact of the Constitution on the operations of public and private institutions and corporations and give advice to a number of government departments, statutory bodies and parastatal institutions regarding various public law issues.

pension law and employee benefits

Bowman Gilfillan’s employment law department has been at the forefront of the rapid transformation of the law governing employee benefits and is one of the largest of its kind in South Africa. Our employee-benefits lawyers are leaders in their field. This practice area focuses on achieving the effective resolution of employment disputes, and on finding solutions to the complex issues that arise in relation to retirement funding and medical insurance for employees.

The appointment of the Pension Funds Adjudicator has opened a new avenue for the processing of complaints relating to, for example, the allocation of pension fund surpluses, the conduct of trustees, and members’ rights generally. The legal team assist clients in dealing with these types of complaints and in making representations to the Adjudicator where necessary.

Our employment law department advises clients on the interpretation of provident and pension fund rules and medical aid schemes. We supply legal advice on, and draft amendments to, these rules and assist in resolving disputes arising in terms of these rules.

policy development: drafting policies, procedures and employment contracts

Our legal team gives clients legal advice on the development and formulation of policies and procedures on a range of employment issues, including codes of conduct, retrenchment procedures, employment equity plans, recruitment policies, strike and picketing codes, sexual harassment and policies relating to HIV/AIDS in employment.

We draft agreements relevant to employment and industrial relations matters. These include employment contracts, executive performance contracts, restraint of trade agreements, recognition agreements and constitutions for employer organisations.

In addition, we assist clients in protecting confidential information given to employees, as well as customer connections, by preparing specialised restraint of trade agreements and enforcing them in the appropriate courts.

collective bargaining issues and strike management

Picketing, strikes and lock-outs are commonplace industrial relations issues. We provide legal advice on how to manage strikes and all forms of industrial action. Additionally, issues surrounding freedom of association, organisational rights, collective bargaining and protest action by employees are part of our legal forte.

disciplinary investigations and enquiries

We supply legal advice on the reasons justifying dismissal in our law, as well as on the appropriate procedures to be followed when dismissing an employee. In particular, we assist with the investigation of allegations of misconduct on the part of employees, the formulation of charge sheets, advising on the appropriate disciplinary procedures and in appropriate cases, represent clients in disciplinary enquiries.

arbitration and mediation

Members of the employment legal department are on various panels of mediators and arbitrators and are highly qualified to assist clients with both arbitrations and mediations. Members of our legal department regularly appear before the CCMA and elsewhere in arbitrations relating to a variety of matters including unfair dismissal and unfair labour practice disputes.

employment legislation

There are a number of significant statutes in the sphere of employment law. We offer legal advice on the implications and implementation of, inter alia, the Employment Equity Act, the Skills Development Act, the Basic Conditions of Employment Act and the Labour Relations Act. We advise on issues arising from the Occupational Health and Safety Act and the Compensation for Occupational Injuries and Diseases Act and represent clients in enquiries arising out of these statutes. We provide detailed legal opinions on the impact of new legislation on all areas of a client’s operations.

training, seminars and employment law updates

We have a close association with Conflict Dynamics CC. Conflict Dynamics CC’s training programmes and seminars are highly respected and are presented by persons who have expertise in the various fields of employment law. Members of our legal department participate regularly in the presentation of these training programmes and seminars.

Our department has also been involved with facilitating a relationship-building exercise in the peace process in Northern Ireland, the training of International Labour Organisation mediators, and the training of mediators and arbitrators in several developing countries including Namibia and Mauritius.