Disciplinary procedures

When may an employee reasonably refuse an instruction? When will a refusal to carry out an instruction be insubordination? Important questions for an employer to be clear about - to avoid launching into disciplinary action that will be unfair.

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.

There are a number of reasons why employers might suspend an employee. This week Ivan Israelstam deals with these questions: What are the reasons for suspension? What are the risks associated with each reason?

The Labour Relations Act (LRA) sets out the rights of an employee in disciplinary matters - giving effect to individual Constitutional rights. In disputes, the employer needs to be able to prove that all of the rights as set out in the LRA, were adhered to. This week Ivan Israelstam explains how an employer would provde their compliance - and the implications for employer procedures. 

The start of a new calendar year is a good time for employers to review company policies and procedures. This week Ivan Israelstam explains the value of a disciplinary code to set out the rules of the employer. The employer should then ensure that all management and employees are trained in the interpretation of the rules. Employees need to be educated in the implications and sanctions if they break the rules.   

This week Ivan Israelstam provides examples from the Commission for Conciliation Mediation and Arbitrator and the Labour Court to explain the complexity of decisions on what may be considered as an unfair labour practice.  

The word prejudice is used a great deal in the media, but there are certain legal implications of prejudice, prejudging, and implications for bias in disciplinary proceedings. Therefore, it is very important for employers to understand the dangers in not paying attention to these legal concepts. This week Ivan Israelstam explains the different meanings of these words, and how they are important for disciplinary proceedings, and for conducting matters at the Commission for Conciliation Mediation and Arbitration (CCMA).

Disciplinary hearings can be difficult situations for employers to handle.  Management who have been trained in the labour law and disciplinary processes stand the best chance of managing the difficulties that may arise. This week Ivan Israelstam makes these points and how disciplinary disruptions should be handled.

This week Ivan Israelstam explains the concept of double jeopardy, and why it is important that employers understand what it is, and how to avoid actions that count as double jeopardy.  

This week Ivan Israelstam uses a dismissal case that went from CCMA, to Labour Court, and finally to the Labour Appeal Court, but the dismissed employee was still re-instated - to explain the importance of handling investigations and disciplinary matters competently, and to ensure that any procedures at CCMA or courts are well prepared.  Above all to avoid emotion.  

This week Ivan Israelstam provides a comprehensive explanation on what is required to investigate allegations of misconduct.  Ivan points out that ignoring incidents represents poor management, but before acting upon allegations of misconduct, it is important to conduct investigation into the all the relevant evidence of misconduct. 

Ivan Israelstam

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.

This week Ivan Israelstam provides examples of how under-prepared, or inexperienced and untrained employers go wrong - and the financial an industrial relations implications when dismissed employees are re-instated.

Do not dilly dally in bringing disciplinary charges. This is the advice of Ivan Israelstam, who explains exactly why disciplinary action should be timeous - not overly hasty, but definitely not long overdue. This week, Ivan explains what to take into account and how to achieve this balance.

What should an employer do when an employee is absent from the workplace for an extended period? What is the attitude of the CCMA if an employer dismisses the employee in his/her absence? What constitututes 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.

Activities that may be classified as misconduct are sometimes provoked, causing raised emotions, which sometimes result in retaliatory action. However, whatever happens a senior manager needs to remain in control of their emotions at all times, and to ensure that only disciplinary actions consistent with the Code of Good Practice: Dismissal (Schedule 8) are taken against employees. This week Ivan Israelstam explains why resorting to biting a junior employee is inadvisable.

Employers may feel that an assault does always merit dismissal of the offender's employment. This week Ivan Israelstam explains why this may not always be the case, and why the CCMA arbitrator may re-instate a dismissed employee. He explains the procedural and substantive issues that need to be considered.

Not all employees behave perfectly every day. Employers are required to deal with employees that may be disruptive for a range of personal or work-related reasons. It is important for employers to remain calm at all time, not to overreact, and to follow their disciplinary procedure at all times. This week Ivan Israelstam explains further why this advice is so important.

What are the implications of saying that the disciplinary process does not mean to be a formal process? That is the question addressed this week by Ivan Israelstam. The key point is how will the employer prove that the procedure adopted was fair, and that the employee received a fair hearing if there is no documentary trail?

Ivan Israelstam

Suspension is an action usually associated with the disciplinary procedures - sometimes before a hearing and sometimes as a sanction. However, there are other circumstances where suspension may be used. But are these suspensions on full pay and for what period can an employee be suspended? This week Ivan Israelstam explains the options and the potential pitfalls.

Ivan Israelstam

Employers should be aware that allowing senior management to overrule junior management, who are more knowledgeable and experienced in disciplinary procedures may be risky. This week in his second article of the series, Ivan Israelstam explains what double jeopardy is, and how employers who fail to understand double jeopardy, may make very costly mistakes.

Ivan Israelstam

As ivan Israelstam demonstrates this week, there are many reasons why spiteful actions arise in workplaces. But when emotions and egos come into play, the results can be both expensive and destructive for the business. To avoid these dangers you may want to read on and follow Ivan's advice.

Is the use of polygraph testing in the workplace conclusive or even advisable? Kirsten Halcrow takes a look at the 'dos and dont's' of using this tool correctly in a disciplinary procedure, with reference to relevant Labour Court cases.

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