Cases where a dismissal has not occurred but where an employer acts untoward towards an employee, rendering such act or failure to act an unfair labour practice, as defined in the Labour Relations Act.

The incapacity of an employee requires a different approach to that of misconduct. Incapacity cannot be defined as misconduct, but misconduct overlaps with incapacity, depending on the state of mind of an employee. It all depends on the state of mind of an employee in order to determine whether an employment issue falls within the category of misconduct or incapacity.

Incompatibility is seen as a sub-form of incapacity. Incapacity, in its general sense, is seen to be either physical or mental incapacity, while incompatibility may be defined as an employee not being able to comply with the ethos, ethics, culture and work environment reasonably expected by an employer. Incompatibility, if willful, may be categorised as misconduct, while, if not willful, may be categorised as incapacity.

Labour dispute resolution can adopt many forms, for example, mediation, arbitration and/or formal proceedings in the Labour Court. As with discrimination and workplace harassment, the correct approach with regard to forum and procedure needs to be carefully considered whenever a labour dispute is addressed.

Voluntary separation agreements may find application under circumstances where employer and employee(s) prefer to separate on an amicable basis, without the necessity of involving formal processes such as misconduct, incapacity or retrenchment procedures. Voluntary separation agreements, if fair and balanced, are always to be preferred to forced processes, which can create animosity and psychological consequences.

The firm is well equipped and has the necessary resources and legal networking to access and advise on any labour issue that may be unique in nature. The firm has access to all legal resources and is satisfied that any unique situation can be effectively addressed by the firm via its expertise, resources and networking.

An unfair dismissal may entail a dismissal following a procedure or a summary dismissal without a procedure followed, constructive dismissals, automatic unfair dismissals (containing an element of discrimination) and dismissal due to operational requirements (so-called retrenchments).

This subject is a vast and expansive subject. It is not easy to approach correctly by lay persons, and whenever discrimination or workplace harassment is identified in the workplace, legal knowledge and the correct approach to such an issue are essential.

Although a written employment contract is not required in law in terms of the provisions of the Basic Conditions of Employment Act, it makes sense to have an employment contract properly recorded in a written document. After all, “the written word” is always better than “the spoken word” when it concerns contracting. It adds certainty to the employment relationship.

Mediation and labour disputes may serve as an alternative to voluntary separation agreements in order to address disputes which may not necessarily involve a dismissal or termination of employment. It can find application in an unfair labour dispute but can also be applied in all other processes, such as mediation in retrenchment disputes.

It is evident that whatever legal labour solution is addressed, such will have to comply with applicable South African labour legislation as may be interpreted by the courts. For instance, a solution considered or offered may not be contra bonos mores (against public policy) or unconstitutional.