You Meant Well. The CCMA Will Not Care.
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Lorem ipsum dolor sit amet, consectetur adipiscing elit. Sed do eiusmod tempor incididunt ut labore et Have you ever had someone on a monthly invoice who works your hours, at your desk, on your software and for nobody else, and wondered whether she is really a contractor?
Have you ever watched a trainee leave after filing season and take three clients with her, and wondered whether the restraint in her contract was worth the paper it was printed on?
Have you ever been tempted to take a SARS penalty out of the salary of the junior whose mistake caused it?
If one of those sounds familiar, you are in good company. Most of the practice owners who sit across from me with a labour problem did not make a bad decision. They made a sensible decision and got there the wrong way, and in labour law the way you got there is usually what decides the case. So let me take you through those three questions the way I would if you had brought them to my office, and then tell you what else I would want to look at before you left.
The contractor who works your hours
Let me start with the person on the monthly invoice, because she is the one most practices never think about until she has already become a problem. You call her a contractor, she sends you an invoice, and as far as you are concerned that settles it. It does not. The law looks at how the relationship actually works and not at what you agreed to call it. If she earns less than the earnings threshold declared by the Minister, the law presumes that she is your employee if even one of a handful of things is true. Do you decide her hours or tell her how to do the work? Does she depend on you for her income, use your equipment or work only for you? Has she worked 40 hours a month or more for you over the last three months? If the answer to any of those is yes, and from what you have described it is yes to all of them, I would treat her as your employee.
Think about what follows from that. PAYE should have been deducted and UIF paid, she has been building up leave all along, and the day you tell her the arrangement is over she can refer an unfair dismissal dispute. I would also tell you something you may not want to hear, which is that you are the accountant, and you are the person everyone assumes would have spotted this. I made the same point earlier this year in The Label Won't Save You. The Substance Will. about how SARS treats these arrangements, and labour law works on exactly the same principle.
The same thinking applies to the tax-season staff you bring back every year. One fixed-term contract for filing season is perfectly lawful. By the third season, if the work is really there all year round, the law treats her as permanent, and if she reasonably expected to be renewed and you let her go, that can itself be a dismissal. A cheerful "see you next season" at the year-end function is often all it takes to create that expectation.
The trainee and her restraint
Now your trainee. You downloaded the restraint years ago, it says twelve months, the whole of Gauteng and any accounting work, and you feel protected. I understand why, because the starting point does favour you. A restraint is enforceable unless she can show that it is unreasonable. But a court will first ask whether you had something worth protecting, and her skills and general know-how do not qualify, because you cannot stop her from using what you taught her. What does qualify are the client relationships she built on your behalf and your confidential information. The court will then ask whether she actually dealt with those three clients or sat in the back office capturing journals, and whether the clause goes further than it needs to.
That last question is where your restraint falls down. A ban on any accounting work, anywhere in the province, for a year, protects you from competition and not from losing clients, and the law will not protect you from competition alone. Weigh against that a junior employee's right to earn a living, and in my view the clause will not be enforced as it is written. What I would do instead is replace it with a client non-solicitation clause, limited to the clients she actually served and to a defined period, together with a proper confidentiality clause. That has a real chance of holding. It is the same problem I wrote about last week in You borrowed the template. You own the consequences., and the lesson carries over. A document you inherited and never read as your own is still yours when someone tests it.
The SARS penalty
Then the penalty. I understand the temptation entirely. The client wants the penalty paid, the junior submitted late, and it feels fair that she should carry it. Before you do anything, ask yourself whether she knew the deadline and ignored it, or whether nobody trained her on your deadline calendar and nobody reviewed her work before it went out. If it is the second, and in my experience it usually is, that is a failure in your review process, and it belongs to the practice.
Even where she was at fault, you cannot simply deduct it. You need her written agreement to that specific deduction, a fair procedure before you deduct anything and proof that the loss was her fault, and even then the deduction may not exceed a quarter of her pay. A general clause in her contract allowing you to recover losses is not enough on its own. Deduct without all of that and she can claim the money back, which leaves you with two disputes instead of one. My advice would be to accept that the client's claim lies against your practice and not against your junior, and to fix the review step, because that is worth far more to you than one penalty recovered from a salary.
What I would ask you next
If you had brought me those three problems, I would not let you leave without asking about the rest of your office, because the same pattern runs through all of it.
I would ask about overtime. If your junior staff earn below the threshold, overtime must be agreed, it is capped at three hours a day and ten hours a week, and it is paid at one and a half times the normal rate. The line in their contracts saying that the salary includes overtime protects you only if the salary was genuinely calculated to pay for those hours at that rate. Take a junior on R18,000 a month working a 45-hour week. Her overtime rate is about R138 an hour, so eight unpaid extra hours a week from July to October comes to roughly R18,800 for a single season, and a claim like that can reach back three years.
I would ask about leave, because you may close leave for filing season but you may not refuse it for the year, and it must still be granted within six months after the leave cycle ends.
I would ask about probation, because many owners believe it lets them part ways without a hearing. It does not. Probation makes a fair dismissal easier to achieve, but before you extend it or dismiss someone on it, she must still be given a chance to respond.
And I would ask when your disciplinary code was last updated, because on 4 September 2025 a new Code of Good Practice on Dismissal replaced the old one. The good news in the new Code is that a small practice is not expected to run formal investigations or hire a chairperson, and the partner may deal with the matter directly and less formally. What it still requires is that the employee hears the case against her and has a real chance to answer it before you decide. A conversation, properly recorded, can be a fair hearing. A WhatsApp at ten at night is not.
Why I keep coming back to process
You will have noticed that I keep returning to how you got there rather than to whether you were right. That is because every dismissal has to answer two questions, whether there was a fair reason and whether there was a fair process, and almost every employer I have advised spent all their energy on the first and none on the second. You can be entirely right about the employee and still lose.
When you lose, it costs real money. A commissioner can award up to twelve months' pay for an unfair dismissal, and up to twenty-four months where the dismissal is automatically unfair. For a bookkeeper on R18,000 a month, that is R216,000 or R432,000. In an arbitration about misconduct or incapacity you are generally not allowed a lawyer unless the commissioner permits it, so it will most likely be you, in the middle of filing season, defending a process you ran yourself.
Most of those cases are lost long before the referral arrives. The warning was never written down, the dismissal letter was drafted before the hearing, or the employee was told to resign or be fired, which can be treated as a dismissal in its own right. What decides how it goes at the CCMA is the work you did, or did not do, months earlier.
When your client asks you
Sooner or later one of your own clients will ask you to help them get rid of an employee, and you will usually have seen it coming, because the warning signs sit on the payroll you process. You will find staff with no signed contracts, the same "contractors" invoicing year after year, fixed-term staff renewed every season and deductions with no written agreement on file, and in construction, retail and hospitality clients you will find them often. When the final pay run arrives after a sudden termination, I would ask one question before you process it. "Was she given the reason in writing, and did she get a chance to respond? If not, let's get a labour specialist involved this week, before the letter goes out." It accuses your client of nothing, and it may save them months of back-pay.
If a client tells you they are selling the business, ask what happens to the staff before you ask about the price. In a sale as a going concern the staff move to the buyer automatically, on the same terms and with their years of service and accrued leave intact, and dismissing them because of the sale is automatically unfair. The same applies if you are valuing your own practice with a sale in mind.
Can you run the hearing for your client yourself? Nothing in the law stops you, but in my view you should not, and particularly not without real experience in labour matters. If you advised the client on the problem, you are not an independent chairperson. If the process goes wrong you may end up as a witness at the CCMA, and your professional indemnity cover may not extend to labour work at all, which is a gap worth checking against Your PI Cover Has a Hole. Here's Where It Is. Flag the risk, recommend a specialist and record that you raised it. And please do not run a disciplinary hearing off a ChatGPT prompt. As I set out in Speed Bump, or Seven-Year Sentence?, a chatbot can describe a fair process in general terms, but it cannot tell you whether yours will survive a commissioner.
Where I would start
If you do one thing this month, put your own house in order before you advise anyone else on theirs. None of it needs a lawyer, and this is the order in which I would take it:
1. Give every employee a signed written contract, and take an honest second look at everyone you call a contractor.
2. Check every salary against the threshold declared by the Minister so that you know which of your staff the overtime and fixed-term rules protect.
3. Replace downloaded restraints with client non-solicitation and confidentiality clauses.
4. Bring your disciplinary code in line with the Code of 4 September 2025.
5. Diarise every probation end date and review it before it passes.
6. Put every warning in writing, signed, dated with its expiry and on file.
Once you have done it yourself, you can take the same checklist to your clients at their next payroll run or year-end meeting. That is the conversation in which a client stops seeing you as the person who runs the payroll and starts paying you as an adviser.
If you want to hear me work through these scenarios in more detail, together with a few I have not covered here, such as the employee who discloses a drinking problem for the first time at her own hearing, you can watch the full session, Labour Law: Where Good Intentions Get You Sued, on CPD.myCIBA.
👉 Join CIBA and we'll show you how to turn the payroll review into labour advice your clients will pay for.
Further Reading
• The Label Won't Save You. The Substance Will., Heynes Kotze, 5 May 2026. Why the substance of an arrangement, and not its label, decides how it is treated
• You borrowed the template. You own the consequences., Heynes Kotze, 8 October 2026. Why an inherited document is treated as your own, and how to check yours
• Your PI Cover Has a Hole. Here's Where It Is., Heynes Kotze, 18 May 2026. What decides whether your professional indemnity cover actually pays out
• What Is Your Practice Really Worth?, Leana van der Merwe, 10 May 2026. How buyers value a practice, and why the liabilities you carry change the number
• Speed Bump, or Seven-Year Sentence?, Heynes Kotze, 19 June 2026. What an AI tool cannot tell your client about a contract before it is signed
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