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.

South Africa’s Labour Relations Act of 1956 was replaced soon after the transition of government in the mid 1990s because it was considered to favour employers in the view of the new government and its trade union allies. By 1995 South Africa’s new constitution had entrenched labour law rights very strongly and the labour movement had become very strong.

Employees who report employers for committing illegal or otherwise irregular acts are protected, in the first instance, by the Constitution of South Africa. Specifically, section 16 of the Bill of Rights gives everyone the right to freedom of expression and to impart information.

Employers sometimes think that employing a person on a fixed-term contract will save the company any obligations in terms of labour law. Under employment equity legislation and codes, there are already implications for employing people on long term contracts in what are permanent positions. This week Ivan Israelstam explains the implications of a Labour Court decision, which finds the employer did not have a right to terminate a fixed-term contract before the end of the term.  

Employers often hire staff on the basis of a fixed-term contract, thinking that this can make life easier for the employer. This is often not the case because, when they want to end the employment relationship, the pawpaw could hit the fan.

Everyone can quote examples of entering a retail store, other service provider, or office, looking for service - only to find an employee filing their nails, or talking on a private call on their the cell phone, or clearly on a social network. Now who is responsible for this behaviour?  Yes, the individual himself or herself, but the key question is where is management?  Why is this employee allowed to behave like this in company time? This week Ivan Israelstam approaches the issue of management responsibility.

South Africa’s government is seriously considering implementing a 4-day work week. This appears to be in response to the very severe unemployment problem in South Africa. There is almost 40% are out of all the people in this country who are eligible to work (because they are over 14 years of age and below retirement age).

This week Ivan Israelstam explains that labour law does allow an employer to dismiss an employee.  However, labour law expertise is required to ensure that the dismissal is both procedurally and substantively fair. Employers cannot simply to decide to dismiss an employee on the word of an external party - without following any internal procedures. 

This week, Ivan Israelstam explains the legally distinct reasons for dismissal: for misconduct, for poor work performance, and for operational requirements.  These are distinctly different reasons, and each has a distinctly different procedure to achieve a legally compliant dismissal. There are always exceptions in the cases, but employers are well-advised to follow the standard methods for each circumstance. 

Sick employees can drive employers to drink. This week Ivan explains what the obligations are on employers when they have an employee who is ill. The question is: what does "ill" mean? Employees who have become addicted to substances, or who have become disabled in some manner have certain rights, which the employer is obliged to uphold.

Handling investigations and disciplinary matters competently and ensuring that any procedures at CCMA or courts are well prepared, are important matters. To explain their importance, Ivan Israelstam uses a dismissal case that went from CCMA, to Labour Court, and finally to the Labour Appeal Court, which ended with the dismissed employee still being re-instated.

This week Ivan Israelstam explains how strikes can damage a company in the long term - way after the strike has concluded, and how employees are also adversely affected. He provides guidance for employers on how to manage a strike and how to go about re-building the employment relationship. 

This week Ivan Israelstam explains that employees have many rights, but there is also a fiduciary duty towards the employer.  He explains what this means, and why there is a stronger duty to be trustworthy upon the more senior the employee.  

Employers sometimes know that misconduct has definitely taken place, but the employer can’t pinpoint the actual culprit/s. The temptation is to dismiss every employee, who may have possibly been involved. This week ivan Israelstam deals with cases where this has happened.