Your Practical Employment Law Playbook
This lesson ties in with Module 4: People Power and Lesson 10.5 Process Properly for Privacy (coming up next)
This is not meant to be read once. It’s designed to be used:
- Sections 1–3 before hiring
- Sections 4–6 as your day-to-day HR operating system
- Sections 7–9 when risk spikes (discipline, dismissal, retrenchment, unions, business transfers)
- Section 10 as your compliance calendar.
Section 1: ⚖️ Your Legal Risk Map
What Governs You
- Constitution: fair labour practices + equality/dignity (baseline).
- LRA: unfair dismissal, unfair labour practices, unions/strikes, CCMA processes.
- BCEA: minimum standards (hours, leave, notice, pay rules).
- EEA: discrimination + (for designated employers) affirmative action.
- Plus: OHS Act, UIF, COIDA, SDL, sectoral determinations, and case law.
📑 Are you:
- Changing pay/hours/duties? – unfair labour practice risk
- Ending employment? – unfair dismissal risk
- Treating groups differently? – discrimination risk
- Unsafe? – OHS risk
✅ If “yes” to any, slow down, document, and use the tools in later sections.
Section 2: Employee or Contractor?👷♀️
Classification That Can Bankrupt You
The rule:
It’s the reality of the relationship, not the label.
🧰 Contractor Test Scorecard
Score each item Employee (E) or Contractor (C):
- Control/supervision over how work is done
- Fixed hours / must be available
- Integrated into your team and operations
- Uses your tools/equipment
- Can’t easily work for other clients
- Paid like a wage vs invoicing per project
- No real financial risk / no ability to delegate
If you have mostly E’s → treat as an employee.
🚩Red flags
Stop and get advice!
- “Contractor” wears your uniform, follows your schedule, reports to your manager.
- Rolling “3-month contracts” with no real end.
- Labour broker workers doing core work for months.
🧰 The “Safer Default” Tool
When uncertain, treat as employment and price it correctly. The “savings” of misclassification is usually fake as penalties arrive later.
Section 3: Hiring and Contracts 📝
Dispute-Prevention System
3.1 Written Particulars
Not Optional In Practice
Even though verbal contracts can exist, BCEA Section 29 requires written particulars when employment begins and they must be retained and explained.
🧰 Day 1 Pack
Give every employee:
- Written particulars / letter of appointment (Section 29 items)
- Job description (1 page)
- Code of conduct + basic disciplinary process (2–3 pages)
- Working hours + overtime rules
- Leave rules + how requests work
- POPIA employee privacy notice (short)
3.2 The Duty to Explain
If an employee may not understand the document, you must explain it in a language/manner they understand.
🧰 Simple “Explain and Sign” Script
- “Here’s what your pay is, when we pay, your hours, overtime, leave, notice, and how discipline works.”
- “What questions do you have?”
- “Please explain back to me how overtime/leave works.” (quick check)
- Record: date + who explained + language used.
3.3 Contract Clauses That Protect You
Without Being Nonsense
Include:
- Probation (with fair support + review dates)
- Confidentiality + return of property
- IP assignment (especially for creatives/software)
- Disciplinary + grievance reference
- Notice periods (at least BCEA minimums)
- Restraint/non-solicitation only if truly needed and reasonable
🚩 Red flag
A restraint that is broad (e.g., “anywhere in SA”, “3 years”, “any industry”) is usually a waste of ink.
Section 4: 🏖️Hours, Overtime, Sundays, and Public Holidays
BCEA Money Mistakes
4.1 Hours and Overtime
- Standard pattern: max 45 ordinary hours/week (then overtime rules kick in).
- Track hours. Always.
🧰 The Timesheet Rule
If you can’t prove hours worked, you usually lose the dispute.
4.2 Sundays
BCEA Sunday pay is commonly summarised as:
- Double pay if Sunday is not ordinarily worked.
- 1.5x if Sunday is ordinarily worked.
(Agreeing to paid time off instead is possible, but document it.)
4.3 Public Holidays
Work on public holidays is regulated and sector rules can change the detail. Treat as a high-risk payroll area and confirm against BCEA + any sectoral determination.
🧰 Payroll Sanity Checklist
- Ordinary hours recorded?
- Overtime recorded + approved?
- Sunday/public holiday coding correct?
- Deductions lawful + consented?
- Payslips issued and stored?
4.4 Leave
Even if you’re tiny, make it predictable and prevent resentment.
4.5 Parental Leave
Critical Update: Parental Leave After Van Wyk
On 3 October 2025, the Constitutional Court delivered judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, confirming constitutional invalidity and putting an interim arrangement in place while Parliament fixes the law.
Because the interim position interacts with UIF + internal policies, do this:
- Update your leave policy to reflect the current legal position (use a labour-law pro for the wording).
- Train managers: “Don’t improvise parental leave.”
- When an employee requests parental/commissioning/adoption-related leave, confirm the latest HR/legal guidance before responding.
🧰 Leave Dashboard
Track per employee:
- Annual leave accrued/taken
- Sick leave cycle usage
- Family responsibility leave usage
- Parental/maternity leave dates + UIF paperwork status
🚩 Red flags
- “Use-it-or-lose-it” applied unfairly or inconsistently.
- Sick leave patterns ignored until they explode.
Section 6: Minimum Wage + Thresholds + Non-Standard Employees 💰
The “Moving Numbers”
6.1 Earnings Threshold
Non-Standard Protections
A lot of LRA non-standard protections apply differently depending on whether someone earns below the earnings threshold.
As of 1 April 2025, the annual threshold was R261,748.45 (it can change—always verify the current figure).
🧰 The Threshold Habit
Add a calendar reminder: every April → confirm the new threshold and minimum wage updates.
6.2 Temporary Employment Services
Labour Brokers – Core Rule
If workers supplied by a TES are placed with you beyond the defined period and earn below the threshold, additional deeming/equal treatment rules can bite. Don’t “wing it”—this is a professional-advice zone.
Section 7: Health and Safety (OHS Act) 🧨
You, the Owner’s, Legal Duty
🧰 The 5-Step Safety System
- Do a simple risk assessment walk-through
- Fix “could kill/maim” risks immediately
- Write safe operating steps for risky tasks
- Train + record training
- Keep incident + near-miss logs and act on them
🚩 Red flags
- No risk assessment records
- No PPE policy where hazards exist
- Repeated “near misses” with no corrective action
Section 8: 🏛️Equity, Discrimination, Harassment
Prevent The Expensive Claims
🧰 Your “Fair Process” Hiring Checklist
- Job ads: only requirements that are truly needed
- Interviews: avoid personal questions (pregnancy plans, health, etc.)
- Selection: document scoring criteria
🧰 Harassment Response Protocol
(Use on the same day)
- Acknowledge receipt immediately
- Separate parties if needed (without punishing complainant)
- Investigate fast, confidentially, fairly
- Document everything
- Fix root causes (policy, training, discipline)
🚩 Red flag
Treating pregnancy/parenthood like “performance problems” after the fact.
Section 9: Dismissal, Retrenchment, Unions, Transfers ⚠️
The “Do Not Freestyle” Zone
9.1 The Dismissal Decision Tree
What is the reason?
- Misconduct → discipline route
- Poor performance / ill-health → incapacity route
- Operational needs → retrenchment route
If you can’t clearly name the category, pause and get advice.
9.2 Procedural Fairness
Your Defensibility Checklist
Before dismissal, you should be able to show:
- Investigation happened
- Employee got written notice of allegations
- Hearing occurred (or a fair opportunity to respond)
- Decision was impartial and reasoned
- Outcome was communicated in writing
- Appeal route existed
🧰 The Paper Trail Pack
Keep: incident notes, witness statements, warnings, hearing minutes, outcome letter.
9.3 Retrenchments
Sections 189/189A
Treat retrenchments like a project with consultation documents and timelines. If you’re contemplating retrenchments, bring in a pro early—fixing it later is expensive.
9.4 Unions and Strikes
You can’t block union membership. If a union arrives, your best move is usually structured communication + documentation, not panic.
9.5 Business Transfers
Section 197
When a business transfers as a going concern, employees transfer automatically with continuity. This is another area where due diligence + legal support is worth every cent.
Section 10: ⛔POPIA, Confidentiality, Restraints, Records
Protect The Business Properly
10.1 POPIA Employee Data Basics
Only collect what you need, store it safely, limit access, keep it as long as necessary, and let employees access their info on request.
🧰 POPIA Employee Notice
- What you collect
- Why you collect it
- Who you share it with (payroll, insurers, SARS/UIF)
- Retention
- Security and access requests
10.2 Restraint
Non-Solicit Reality Check
Use restraints only where you can justify:
- role seniority + access to secrets/clients
- narrow scope, geography, and duration
🧰 Practical Action Plan
What To Do This Week
If you are hiring (or already have staff)
- Implement the Day 1 Pack
- Start a timesheet + leave tracker
- Create a disciplinary code (short, consistent)
- Add a harassment reporting route
- Do a basic safety risk assessment and record it
If you’ve already had people issues
- Standardise documentation
- Run manager training on:
- classification
- overtime/leave
- discipline/dismissal process
- harassment response
When You Should Involve A Labour-Law Pro
Non-Negotiable
- Any dismissal that isn’t obviously minor misconduct
- Incapacity/performance dismissals
- Retrenchments
- Union disputes or industrial action threats
- Business purchase/sale (Section 197 transfer issues)
- Discrimination/harassment allegations
- Drafting senior contracts/restraints
- CCMA referral received
↙️ Next
Head to the quiz to access a host of templates.