We offer a range of FAQ’s and answers to help you achieve the results you’re after. Not sure what you need, or what your process are? We can explain what services are right for you and tell you more about your specific question.
I am an employer and contractor has decided to enforce a lien on my project, can you assist me with getting repossessions off my premises?
Generally your right to suspend works for non-payment of an interim claim is derived from the contract you have signed. So for example if the contractor has failed to pay you in terms of an issue payment certificate, most contracts provide that you are entitled to give notice of intention to suspend the works if the employer fails to make payment to you in terms of the issue payment certificate.
When you suspend works, you are not expressing an intention to abandon the site, merely that work will be suspended until such time that the employer remedies his breach.
I need to discipline an employee – how do I go about it?
As each matter needs to be determined on its own merits it is essential that every employer follows its own rules/standard of conduct (usually contained in the company’s codes and procedures). The procedure of disciplinary action is usually in the company’s codes and procedures and if there are none such guidelines can be found in the scheduled to the Labour Relations Act. It is essential first to be able to establish whether or not there is in fact an existing rule/standard, whether the employee knows or could reasonably have been aware of the rule or standard, whether the employee breached the rule or standard and if so what are the consequences of such breach.
How do I chair a disciplinary enquiry?
To chair a disciplinary enquiry takes considerable skill in that the chairperson is required to be able to evaluate the evidence before him/her and to make a finding on the merits of the charges and to determine the appropriate sanction. As a chairperson you are required to be impartial and objective, to know and understand that company’s codes and procedures, to maintain and control the processes, and to be able to evaluate the evidence before you taken into account the evidentiary burden and probate of weight of the evidence before making a determination on the merits of the case before you.
What is the difference between disciplinary and grievance procedures?
in a nutshell disciplinary process is whereby the employer enforces its rules and standard of conduct established to maintain a harmonious and productive work environment, whereas the grievance process is a process by which an employee can fully ventilate his/her unhappiness/dissatisfaction within the workplace and establish the basis for resolution.
I am an employer and contractor has decided to enforce a lien on my project, can you assist me with getting
off my premises?
As a general comment a contractor has a right in law to retain another parties property if that contractor has put money or money’s worth into the property until such time he’s been compensated. In order to challenge the lien, you would need to determine whether in fact monies owed and if they are whether the contract that you have with the contractor provides that contractor’s lien has not been waived by the contractor. Generally, if the construction is being financed by development bond, the banks usually require the contractor to sign a waiver in which they waive their right to exercise a lien or right of retention.
What do I need to do to prepare for a disciplinary hearing?
Allegations need to be investigated thoroughly, charges need to be formulated and preferred against the employee, the company codes and procedures pertaining to misconduct, incapacity (performance or medical) need to be adhered to, appointment of a chairperson, initiator and evidence leader, hearing, outcome/finding and recommendations.
How do I formulate charges?
Firstly it is essential to properly investigate any allegations to establish whether or not there is any substance to such allegations. During the investigation you will establish through evidentiary means such as witnesses, documentation, recordings, CCTV et cetera the basis for such substantiation and will thus be able to determine exactly in what respect the employee has broken the company rules or performance standards. More often than not the nature of the charges themselves, if proved, will determine what sanction is to be imposed. The rules of evidence, whilst not enforced as strictly as in the other courts, are nonetheless the basis upon which Decisions at the CCMA/Bargaining Councils are determined. It is essential therefore that you seek professional assistance if in any doubt and more especially in the factually complex cases.
My company is in need of construction attorneys as we are ready to start a
project. Will you be able to assist?
Yes we are. When the employer accepts a tender by the employer/principal agent, it issues a letter of acceptance/appointment and reference is made to the incorporation of a standard building contract such as JBCC and specific terms applicable to the project . It is our experience that often contractors receive the letter of acceptance/appointment without obtaining a copy of the standard building contract and without completing the data provided for in the schedule. The only time that the contract is read is when an issue arises. We offer a service where we ensure that the full terms and conditions of the contract are understood by you, especially in respect of issues like performance guarantees and your rights in terms of payment certificates. We then keep a copy of the contract and the letter of appointment so that if an issue arises you simply pick up the phone and ask for advice.