Disciplinary procedures

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.

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.

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.

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.

This week Ivan Israelstam lists the type of services that employers can expect from a labour law expert, and what qualifications a reputable lawyer or consultant should hold.

South African labour law - often criticised for restricting recruitment because employers believe that they cannot dismiss an employee. Whereas, as Ivan Israelstam points out, investing the time and money into good quality training on labour law for management, will pay off many times over in costs saved from adverse CCMA and Bargaining Council decisions.

This week, Ivan Israelstam sets out what the term "dereliction of duty" means. He explains why it is important for management to use the term correctly, neither to come on too strong against an employee, when other factors could explain events, nor to be too soft when the allegation of dereliction of duty would be correct.

This week Ivan Israelstam addresses questions about: the loyalty that an employer can legitimately expect from employees; what employees' rights are, for example to join a union; what a conflict of interest is, and how an employer should deal with conflict of interest.

This week Ivan Israelstam explains exactly why employers who have disciplinary procedures - and put those disciplinary procedures in the employee's contract - need to make absolutely sure that they follow exactly the procedures that have been set out. The Labour Court will take a dim view of employers who simply make minimal effort to ensure that the procedures are followed.

"I'll give you a warning". That is something heard by employees, when a supervisor or manager makes the statement as a threat because they are frustrated with the behaviour or non-compliance of an employee. This week Ivan Israelstam explains exactly how warnings should be viewed, and when different levels of warning are appropriate. 

This week, Ivan Israelstam explains two aspects of the interview and employment process. This article explains what information the law requires a job applicant to provide to the potential employer. Then, what action an employer may take - if they find out that the - now employee - misrepresented any aspect of their qualifications or experience.  Cases are quoted to indicate why it is necessary to follow the correct procedures prior to taking such action. 

Last week, Ivan Israelstam explained the personal reasons employers may have to utilise probation to dismiss employees. This week, Ivan describes the alternative action the employers may take - instead of dismissing the employee, the employee is demoted.  This action, equally as with the dismissals, may run into criticism at the Commission for Conciliation Moderation and Arbitration (CCMA). 

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.

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.