In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest. 

It happens too often that I receive panicked phone calls from employers who had received an unfavourable arbitration award in respect of a CCMA case that they never knew existed. That is, the employer had never received a summons to appear at the CCMA. In one such case the award required the employer to pay many tens of thousands of rands to an ex-employee. This can happen for a number of different reasons including:

Despite South Africa’s employment equity legislation, the biases and discrimination that characterised the ‘old South Africa’ still exists in the hearts and minds of many people.

In medium to large size companies, there will usually be a number of specialist departments. It is critical that employees within the company understand that any communication arriving from the CCMA should be passed on to the person designated to deal with CCMA matters. Failing to attend an arbitration hearing may well have serious - and expensive - consequences for the company.

This week, Ivan Istraelstam explains all of the dispute resolution bodies, and the fees and costs for an employer who is found to have unfairly dismissed an employee.

The Employment Equity Act (EEA) prohibits sexual harassment of employees by other employees and holds the employer liable in such cases even if the employer does not know that the sexual harassment is going on. The courts have upheld this provision.

Should an employer fail to bring any witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because witness testimony normally forms the crucial core of the procedure at any hearing. 

What are the policies that an employer should have in place to deal with allegations by an employee of sexual harassment? What steps should the employer take if they receive an allegation, and is dismissal always the correct disciplinary action? This week Ivan Israelstam provides guidance for employers.

Pregnant employees are strongly protected under South African law. There are no fewer than six pieces of legislation that require employers to treat pregnant and post-pregnant employees with the greatest of care. One of these pieces of legislation is the Code Of Good Practice On The Protection Of Employees During Pregnancy And After The Birth Of A Child (The Code).

The legal procedures that an employer is required to follow in implementing dismissals for misconduct, retrenchments and poor work performance are all different. For instance, it is not normally acceptable to use the procedure laid down for retrenchments in order to deal with poor work performance. 

Section 158 of the Labour Relations Act (LRA) gives the Labour Court the power to issue interdicts preventing employers, employees or trade unions from proceeding with threatened or current actions. 

The purpose of workplace disciplinary hearings is to enable the chairperson of the hearing to hear, from both sides, evidence relating to the charges against the employee. Part of the hearing of evidence is the right of the opposing party to cross examine any evidence brought. At such hearings the parties present are normally:

What rights do employers have to discipline employees for misconduct perpetrated outside the workplace? While employers have very few rights under the Labour Relations Act (LRA) they do have the right to discipline and even to dismiss employees for work related misconduct. However, a dismissal will only be upheld by the CCMA, bargaining council or Labour Court where:

It has become a practice by employers to insert automatic termination clauses into employment contracts for reasons including the following:

Disciplinary warnings are given with a view to correcting employee behaviour. But, what is the difference if the employer policy says that warnings have an expiry period and must be removed from files, or alternatively, the warning expires but if kept on record. Will this be relevant? Just one of the questions on warnings that Ivan Israelstam addresses this week.  

When an employer suspects that a group of employees may be cooperating in some way - in dishonest acts to defraud the company financially, or remove property - there is the suspicion of collective guilt. This week Ivan Israelstam examines how the Commission for Conciliation Mediation and Arbitration (CCMA) and labour courts have viewed this kind of collective behaviour. Ivan uses cases won and lost to demonstrate how crucial it is to consider the circumstances of the particular case. A Labour Appeal Court case shows what the employer needs to successfully prove such a case.

When an employer sets up a disciplinary hearing, or decides following an investigation that there is more to be answered and investigated, there may be reason to place the relevant employee on suspension. However, as with everything else in employment and labour law, there is a procedure regarded as fair, which should be followed, Is there a reason why the employer feels suspension is necessary, such as threatening or intimidating potential witnesses?  Ivan provides cases to demonstrate this point.

What is "whistle-blowing" , and when is it protected? This week Ivan Israelstam explains what legislation protects employees: not just the Protected Disclosures Act, but also the Labour Relations Act. Then Ivan  looks at cases, where the employee has disclosed information, and explains how the Labour Court and the Labour Appeal Court have dealt with such cases. 

 Labour law provides scant protection for employers. That is the opinion of Ivan Israelstam. This week Ivan explains why he holds that opinion, and gives advice to employers on how he believes they should react, and protect their businesses going forward.