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.

Since 1995 South African people in leadership positions have talked at NEDLAC about the need for drastic steps towards our economic development. Nearly three decades later, South Africa is so underdeveloped that we have frequent water outages, blackouts for many hours almost every day, the burgeoning of organised crime, record levels of violence, extremely high unemployment rates and widespread poverty.

Employers generally seek legal advice before proceeding with retrenchment exercises, but how many accept that the potential retrenchees are equally allowed to seek legal advice? Unionised workers are able to rely upon their union legal advisers,but what of other employees? Ivan Israelstam argues for external representation in retrenchment consultations

Parties in disciplinary hearings often feel pressure to "win" - to succeed at all costs - and on occasion, this may lead to dishonest behaviour. This week Ivan Israelstam provides examples of such behaviour and the consequences.

Case law reveals countless reasons given by CCMA arbitrators for an employer’s dismissal decision to be deemed unfair.

Our articles over the past years have made it crystal clear that, for an employer, South African labour law is a minefield riddled with endless hidden dangers. That is, there are numerous labour acts, regulations, codes and determinations that are mainly focussed on protecting employees. 

When will it be fair to dismiss an employee for poor performance? What is poor performance? What are the employer's rights in setting the performance standard and what are the employer's responsibility towards employees?  This week Ivan Israelstam responds to these critical questions that apply to all employers and explains what the employer will need to be able to demonstrate to a CCMA commissioner in an unfair dismissal arbitration. 

Once a dispute has been lodged with the Commission for Conciliation Mediation and Arbitration (CCMA). there are different stages in the process to achieve resolution: conciliation, or con-arb - conciliation and arbitration, or arbitration. This week Ivan Israelstam explains how a pre-arbitration meeting may assist in speeding up resolution - but also points to the risk involved.

A common example of hearsay evidence is where the person placing the evidence before the presiding officer of the disciplinary or arbitration hearing is not the person who witnessed the incident.

This week Ivan Israelstam gives examples of fair discrimination. Then explains how one employer was able to successfully defend against an allegation of unfair discrimination, and another employer could not defend against a dismissal that was found to be an automatically unfair dismissal. 

Sometimes employees do come in to work and declare that they are resigning with immediate effect. This can be for a number of personal reasons, irritation with management, and so on.  This week Ivan Israelstam explains the potential implications for employers when this occurs.

South Africa’s labour legislation changes periodically and case law decisions of ten 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 into account when making their decisions.

When employers are faced with financial challenges, and contemplate retrenching employees, it is critical for the employer to first consult on alternatives to avoid retrenchment. Ivan Israelstam explains what is required, and how employers should consider alternatives. If the employee makes proposals, which the employer does not accept, it is necessary that the employer provides a response on why the alternative proposed is not a viable option.    

Sections 189 and 189A of the Labour Relations Act (LRA) make retrenchment exercises very difficult and costly for employers.

Labour brokers and temp. agencies employ hundreds of thousands of people in South Africa and are referred to in the Labour Relations Act (LRA) as “temporary employment services” (TES).

Not only employers, but also union officials and employees sometimes wonder what the words in the employment legislation mean. This is also seen in differences between the Labour Court and the CCMA and bargaining council arbitrators. This week Ivan provides examples of how the different acts aren't always clear.  

All employers need to be aware of RICA. This week Ivan Israelstam explains what RICA is, and what the implications are for employers who want to intercept an employee's emails, or listen to phone calls. What are the implications if an employer simply goes ahead without understanding the legal constraints?

Labour legislation in South Africa is heavily weighted in favour of employees. The heavy protection of employees against being dismissed makes it very difficult for employers to run efficient workplaces. This in turn compromises the ability of businesses to grow and to employ more employees.

It can be expensive to accuse employers of being unfair without any evidence. This is partially due to the fact that the CCMA, Labour Court, Labour Appeal Court, and negotiating councils handle over 180 000 cases each year and do not have time to waste on dealing with unfounded allegations.