Ivan Israelstam


ivan israelstamIvan Israelstam is the CEO of Labour Law Management Consulting and writes for Skills Portal on Labour Law topics. He also writes for Independent Newspapers’ Talent 360 and for several other important publications, has been a CCMA Commissioner, and is the vice chair of the Labour Market Committee of the SA Board for People Practices.

He has been recognised as part of the “Who’s Who In Southern Africa” and also does public speaking at conferences and seminars.

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Ivan's Articles:

There are several unfair methods that might be used at disciplinary hearings, appeal hearings and arbitration hearings. These unsavoury tactics include the falsification of documents, the influencing of witnesses, illegal entrapment, coercing employees to make admissions or confessions and tampering with audio and video tapes. 

South African law does not allow employers to sue employees at the CCMA or Labour courts. In fact, it is clear that labour legislation and its enforcement structures are there to protect employees, often at the cost of employers.

Section 6 of the EEA coupled with case law findings prohibits unfair discrimination against employees on arbitrary grounds where such discrimination affects the employee’s dignity.

South Africa’s labour legislation changes periodically and case law decisions often have the effect of changing the law. As management at all levels make daily decisions affecting the myriad of employee rights, all managers need to be able to take the complex, increasing and constantly changing labour laws in to account when making their decisions.

The Rustenburg Platinum finding and the Shoprite Checkers finding that I discussed in previous articles show that arbitrators and judges are ready to overturn dismissals of employees who have committed serious offences.

A default award is one made by an arbitrator where the employer fails to attend the arbitration hearing. The arbitrator is entitled to do this unless he/she has received an acceptable reason for the employer’s non-attendance. In the employer’s absence the arbitrator has little or no way of checking as to whether the employee’s version is true.

The law does allow employers to dismiss employees for dishonesty. This is because dishonesty can destroy the ability of the employer to trust the employee. However, this does not mean that all decisions to dismiss dishonest employees will automatically be upheld by the CCMA and the courts.

The Labour Relations Act (LRA) makes it obligatory for employers that are contemplating retrenchments to first consult about this prospect before making any decision to retrench. Where the relevant employees belong to a trade union the employer is required to consult with that union on a number of issues, the most important of which is any means of avoiding job losses.

The purpose of a disciplinary hearing is to give the parties the opportunity to present all their evidence. The chairperson of the hearing is required to hear and understand all evidence presented so that he/she can properly take it into account on completion of its presentation.

Schedule 8 of the Labour Relations Act allows the dismissal of guilty employees only as the last resort. The Act, together with its Code of Good Practice: Dismissal, effectively places the duty on the employer to justify the imposition of dismissal by showing that the employee’s misconduct is so serious that it makes continued employment intolerable.

The practice of disciplining an employee twice for the very same infraction is called “double jeopardy”. In most cases, such practice would be found to be unfair because it both excessive and punitive instead of corrective. 

It is a major challenge for employers to distinguish between employees who are genuinely sick from those who are malingering. The Labour Relations Act (LRA) requires that employer’s may consider dismissing employees incapacitated by illness or injury only as a last resort. 

Important labour legislation applies to circumstances where a business or part thereof is transferred by one employer to another as a going concern. That is, section 197 of the Labour Relations Act (LRA) forces the new entity to take over all the employees of the old undertaking. 

The Cape Town taxi strike created severe harm to employers, employees and the taxi industry alike. The fact that people so frequently choose to use such destructive means of getting their way demonstrates just how discordant our societal and economic relationships are.

If an employer fails to attend an arbitration hearing, the CCMA has the power to issue a default award in favour of the employee.

I too frequently receive frantic requests from employers to help them get rid of an employee at all costs. In the midst of their panic they fail to realise that the ‘costs’ they are shouting about could be immense.

It is well known that South Africa’s Constitution, the Equality act and the Employment Equity Act, all render racism unlawful. Despite this powerful and well publicised legislation and society’s repugnancy for racist behaviour, the biases and unfair discrimination that characterised the ‘old South Africa’ still exist in the hearts and minds of many people.

Employers commonly opt for alternative and temporary resources, such as staff provided by labour brokers, to avoid direct employment of workers. This practice is known as labor brokering or outsourcing, and it has become a common trend in the modern job market. 

The ability to get away with breaking the law has encouraged many employers to mistreat undocumented foreign people employed by them. That is, employers have paid illegal immigrants low wages, deprived them of employee benefits and have dismissed them at will.

The Labour Relations Act (LRA) provides for employees who have been passed over for promotion to lodge an unfair labour practice dispute at the CCMA or at the relevant bargaining council. 




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