Ivan Israelstam

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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.

Connect with Ivan on LinkedIn.

Ivan's Articles:


Every employer and every employee has the right to expect that the other is trustworthy. As a result, either party could forgo his/her right to continue the employment by destroying the trust relationship.


South African law provides heavy protection for pregnant employees, and does so via numerous pieces of legislation. 


Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability or illness. This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled or ill. In fact the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.

 


In 1995 South Africa’s old Labour Relations Act was scrapped and replaced by the Labour Relations Act of 1995 (LRA). This act makes it very much easier than before for employees to challenge alleged unfair dismissals and other unfair practices at private or statutory dispute resolution forums.


Investigation of misconduct allegations is a crucial step in legally acceptable disciplinary action and cannot be bypassed. However, employers often fail to investigate allegations of misconduct or poor performance because they are busy, because of feelings of anger towards the employee or due to ignorance of the labour law pertaining to disciplinary process.


Due to the fact that some employers are unskilled in dealing both effectively and legally with poor performance or misconduct they look for other ways of getting rid of troublesome employees. 


The legal procedures that an employer is required to follow in implementing dismissals for misconduct, retrenchments and poor work performance are all different.


Exceptional employees exist who always manage their own conduct and seldom need to be managed. However, most employees do need to be managed, and this is the job of their superiors.

 


The purpose of workplace disciplinary hearings is to enable the chairperson of the hearing to hear, from both sides and evidence relating to the charges against the employee.


Section 197 of the Labour Relations Act requires that, where a business is taken over, the new owner must take over the staff from the old owner. During such takeovers, employees are often desperate to stay on with the new enterprise.


What rights do employers have to discipline employees for misconduct perpetrated outside the workplace? 


There appears to have been a notable change in how employers structure automatic termination clauses in employment contractual agreements. A number of legal precedents indicate that these changes primarily favour the employee rather than both parties involved. 


A disciplinary warning is an oral or written statement made by an employer informing the employee that his/her conduct or performance level is not acceptable and that any further failure to meet the required standards will result in stronger measures being taken. In this sense a warning is not a punishment. Instead it is a notification that punishment or other corrective measures could follow.


When employers include disciplinary policy, procedures and codes in employment contracts, it is especially important that the employer follows their own documented procedures. Failure to follow their own procedures will call into question the status of the dismissal of employees. In this case, Ivan Israelstam details how the Labour Court judge analysed the failures of both the employer, and the CCMA arbitrator, who supported the dismissal.


Employers frequently suspect that serious misconduct has occurred but are unable to prove which employee or employees are responsible. Some case law has given the impression that, in such circumstances, group dismissals may be justified. This impression has been given by two important cases; those involving Score Supermarkets and Snip Trading.


The Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act) provides the guidelines for employers to follow in disciplinary proceedings. This code does not specifically require "cross-examination" but does provide that the employee must be aware of the allegations against them, to understand them, and be given a chance to state their side of the story - or defence - in response to the allegations.This week Ivan Israelstam explains the meaning of "cross-examination" and provides advice on how employers should proceed.


What should an employer do when an employee is absent from the workplace for an extended period of time? What is the attitude of the CCMA if an employer dismisses the employee in their absence? What constititutes a resignation by an employee? There are many permutations to these questions. This week Ivan Israelstam points to some of the dangers in these cases, and cautions employers not to act in anger or in haste.


This week Ivan Israelstam explains why it is so important for management to be knowledgeable in labour law. The management of discipline is part of management responsibility and should not be seen as a specialist area for the HR or IR people to handle. Therefore training of all management is extremely important.


Angry employers too often fire employees on the spot for having broken workplace rules, or for doing poor work. This is understandable in circumstances where the employee has seriously messed up a business deal, damaged equipment, lost crucial information, committed a dishonest act, refused to obey an instruction or caused other serious damage. 


The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.

 

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