Disciplinary Procedures - Dismissal

There are a number of ways that employers attempt to avoid agreeing permanent contracts with employees, for example: the use of fixed term contracts, or contracting with labour brokers to provide workers. Ivan Israelstam suggests that these actions are a reaction to difficulties in the ability of employers to dismiss permanent employees. He quotes cases to illustrate this point. 

This week Ivan Israelstam explains the background to the Commission for Conciliation Mediation and Arbitration (CCMA) Guidelines. What is the purpose of publication of the guidelines, and what are some of the important items included in the document? The guidelines are intended to ensure greater consistency in Commissioners' arbitration decisions, and meet the Constitutional right of employers to fair administrative action. In conclusion, Ivan reinforces that the onus to prove a fair dismissal rests with the employer.  

Employers do become emotionally involved in some of the serious disciplinary cases at the workplace. So as Ivan Israelstam points out, it is very important to have a trained person to chair disciplinary hearings. It is important to understand the requirements of Schedule 8, which requires a two step process - first to prove what happened, and then to consider all circumstances before taking the decision to dismiss. That is the requirement of considering mitigating factors.  

Many organisations experience hostility between employees for a number of reasons: favouritism, nepotism, affairs, jealousy over promotions, power struggles, sexist, racist, or bigoted behaviour - are just some of the situations. An employer may believe that the easist way to solve the problem is simply to dismiss the employees involved. This week Ivan Israelstam explains how this approach may backfire. 

This week, Ivan Israelstam uses examples of cases from the CCMA, the Labour Court and the Labour Appeal Court, to explain how decisions can be overturned from one court to the other. Ivan explains why it is important for employers to have an understanding of the pattern of decisions, to understand what is clearly decided, and what is still uncertain - in order to be able to identify what is relevant to their own cases. 

What is a conflict of interest, and may an employer dismiss an employee if there is a conflict of interest? This week Ivan Israelstam explains exactly what is required before a dismissal for conflict of interest will be sustainable at the CCMA. 

Don’t underestimate the power of trade unions. That is the advice of Ivan Israelstam. How should shop stewards be treated? Is it possible to discipline shop stewards? Are there additional requirements before disciplining a shop steward? Is it possible to dismiss a shop steward? This week Ivan explains the rights and responsibilities of shop stewards, and uses an example of a shop steward dismissal he defended successfully at CCMA.

When an employer is faced with an employee who fails to perform, the Labour Relations Act sets out specific requirements to be fulfilled before the employer contemplates dismissal. These requirements are followed by a fair procedure. This week Ivan Israelstam explains what the requirements are, and how poor performance should be handled. 

Are there different requirements for disciplinary action against a shop steward, and if so - what are the differences? That is the question Ivan Israelstam addresses this week. Essentially not all infractions by a shop steward would amount to gross misconduct. One example is the shop steward's position during negotiations - in that forum the shop steward addresses management as an equal. So using strong terms to reject management's proposal would not be insubordination. Ivan quotes cases to explain the differences between dismissing a shop steward and dismissing an employee.

When an arbitrator finds that an employee as been unfairly dismissed, the award will require the employee to be re-instated - unless there are conditions preventing reinstatement. This week Ivan Israelstam indicates the practical and psychological implications for the employer of having a re-instated employee within the workforce.

This week Ivan Israelstam explains why it is important for an employer not only to refer bribery and corruption activities to the SAPS, but also to conduct an internal disciplinary hearing before terminating the services of an employee. 

Employers generally are now respecting an employee's right to a disciplinary hearing before deciding upon dismissal.  The question is: who chairs the disciplinary hearing, that is: who is the presiding officer of the disciplinary hearing? How important is it that the presiding officer has not been involved in the events leading up to the disciplinary hearing? This week Ivan Israelstam answers these questions.

This week Ivan Israelstam explains potential forms of disruption and indiscipline at the workplace - what he refers to as workplace rebellions. The article goes on to consider when dismissal is a fair response by the employer, quoting cases to show how the CCMA will respond to allegations of unfair dismissal. 

Why is is important that disciplinary action takes place timeously? This week Ivan Israelstam explains how difficult it is to prove that the trust relationship has been broken sufficient to warrant dismissal - if the disciplinary procedure was delayed and the employee was allowed to continue working.

Sex related acts not always sexual harassment - that is the outcome of a case Ivan Israelstam examines this week.  This case indicates how important it is to ensure that disciplinary action is taken timeously.  A delay - and allowing the employee to continue working - would indicate that the trust relationship is not broken. Therefore, dismissal may be found to be unfair.

This week Ivan Israelstam explains why it is necessary to ensure that no names with racial meanings are used at the workplace. Also why it is important that employers investigate any allegations of racism at the workplace. Decisions of the Labour Court and a Bargaining Council provide good guidance.

This week Ivan Israelstam explains why it is important that an employee should be allowed to cross-examination witnesses giving evidence at a disciplinary hearing. Sometimes a chairperson will interrupt or limit the employee's questions.  What is the implication when this happens?

Ivan Israelstam

Many employers will be able to provide examples of how employees ignore or don't comply with requests or instructions. When does failure to comply with instructions constitute sufficient grounds for dismissal?  This week Ivan Israelstam quotes from actual CCMA cases, where employees have been re-instated. Ivan highlights the challenge employers face - achieving a fair dismissal acceptable to the CCMA.  

Ivan Israelstam

Many employers will be able to relate to the situation of being infurirated by employee behaviour. However, as Ivan Israelstam explains this week, it is very dangerous for an employer to react emotionally and overstate the allegation of misconduct - by alleging dereliction of duty. This term has a very specific legal meaning and therefore at the CCMA the employer will have the responsibility for proving that the misconduct was a deliberate and intentional action by the employee.

If an employer assumes that an imprisoned employee has simply dismissed themselves, or absconded, the employer will not be on firm legal ground to dismiss the employee. This week Ivan Israelstam explains how the CCMA and bargaining council commissioners have dealt with such dismissals.

Why do some employers regards employees as an expense rather than an investment to nurture and retain? This week Ivan Israelstam explores the costs to an employer of non-compliance with labour laws, and gives constructive advice to employers on how to adopt a balanced approach.

When employers include disciplinary policy, procedures and codes in employment contracts, it is especially important that the employer follow 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 would be unwise to assume that just because an employee already has a final written warning on file, that the employer can simply go ahead and process a dismissal. This week Ivan Isralstam explains the complexities to be taken into account - such as the validity of the final written warning.

Employers may be surprised to find that there are costs that may accrue when they fail to follow correct disciplinary procedures in dismissing employees. There may be Conflict Dispute Resolution Centre - attached to Bargaining Councils (CDR) or Commission for Conciliation Mediation and Arbitration (CCMA) costs. This week Ivan Israelstam explains what the potential costs are when employers fail to follow the requirements for dismissing employees for a fair reason and following a fair procedure.

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