Labour Law

During 2014/15, and again in 2018, there have been a number of changes made to the legislation affecting the obligations of employers and the rights of employees, and responsibilities of commissioners presiding over misconduct hearings.  This week Ivan Israelstam points out that employers are failing to defend their decisions at the CCMA. A number of important changes are listed and Ivan will be covering these over the coming weeks.

Ivan Israelstam

Employers do not always take allegations of sexual harassment seriously - such allegations may give rise to jokes and innuendo. However, employees have a right to a safe workplace and protection from discrimination. Cases of sexual harassment that are mishandled may lead to findings of unfair discrimination. Ivan Israelstam cites some cases to demonstrate the implications of failing to take seriously allegations of sexual harassment.

Ivan Israelstam

Employers and labour lawyers frequently complain that the decisions of CCMA commissioners are inconsistent and consequently awards vary considerably and don't provide guidance on the standard to follow. This makes it difficult for employers to know how they should conduct their internal disciplinary processes. This week Ivan Israelstam explains how guidelines for commissioners conducting Misconduct Arbitrations will lead to more consistent decision-making.

Ivan Israelstam

When employee behaviour is dishonest or at a similarly serious level that dismissal appears to be the appropriate response, it is particularly important that employers follow the correct disciplinary procedures. Part of those procedures is to ensure that there is a suitably qualified, unbiased chairperson to hear the matter fairly and in an unbiased manner. Ivan Israelstam provides some examples.

Ivan Israelstam

This week Ivan Israelstam explains: what may be considered a mitigating factor, why it is important, and how the employer needs to take these factors into account. He explains why it is important that chairpersons of disciplinary enquiries are suitably trained to meet these challenges - what mitigating factors to consider, and how to give them due weight.

Ivan Israelstam

This week Ivan Israelstam launches a series of articles dealing with the changes to labour law implemented by the Department of Labour. The articles will also make reference to how case law - that is decisions by the CCMA, bargaining councils and courts affect how the labour laws are to be implemented.

Ivan Israelstam

Employers may believe that referring to any dishonest behaviour as "fraud" will help them in achieving a dismissal. However, as Ivan Israelstam explains "fraud" has a very specific meaning, and in order to sustain a dismissal decision at the CCMA, the employer needs to understand what is involved, and how to present the evidence to support this allegation.

Ivan Israelstam

This week Ivan Israelstam explains the differences between a retrenchment (an operational requirements dismissal) and a mutually agreed termination of an employment contract. The procedures to be followed are different and the nature of the document that concludes the ending of the employment contract are significantly different. Mixing up these two types of agreement can be expensive.

Ivan Israelstam

Takeovers, mergers and acquisitions are common business activities, as are decisions to outsource part of a company's activities. These business arrangements have implications for the employment relationship, but it is not always easily defined where the labour law and contractual obligations lie. Ivan Israelstam explains how these matters are viewed by the labour courts.

Ivan Israelstam

The precise nature of the ownership of companies can sometimes be difficult to discern. But employers should be under no illusion that if they attempt to avoid labour law obligations by creating complex ownership schemes, the CCMA and the labour courts will devote time and attention to "unveiling" the true nature of the ownership and the employer obligation. In this manner, more than one company may become jointly and severally responsible for the labour law obligations. Ivan Israelstam provides examples of how this may happen.

Ivan Israelstam

Employees and union officials sometimes allege that an employer is trying to "work an employee out", that is making life so uncomfortable that the employee will choose to leave and find work elsewhere. However, in South Africa with such extremely high levels of unemployment, alternative jobs are not easy to come by. As a result employees will remain with the company and put up with the unfair treatment - or alternatively, resign and allege that they had no alternative course of action - that the employer effectively caused the termination. Ivan Israelstam explains the test to prove such an allegation.

Ivan Israelstam

The South African Constitution and the Employment Equity Act are very clear on the grounds that may give rise to unfair discrimination. Not all discrimination is unfair. Employers constantly make choices, for example: on who to appoint, who to promote, who qualifies for a company car, and many similar decisions. It is the fairness and objective grounds upon which the decisions are based that matters. Ivan Israelstam explains further what is required of an employer.

Ivan Israelstam

The media often features stories of bribery and corruption. Employers often simply assume - or hope - that these activities happen elsewhere. However, employers would be well served to follow Ivan Israelstam's guidance on what constitutes these activities - how they are defined, and how they should be managed professionally.

Ivan Israelstam

Victimisation is an allegation made by employees sometimes under the Labour Relations Act and sometimes under the Employment Equity Act. Ivan Israelstam explains various acts that are classified as victimisation, but also points out gaps in the laws. He advises employers to proceed with caution and not think that they have a free hand in their behaviour with employees.

Critics of South Africa?s labour laws fail to compare the country?s laws to those of
other similar countries or to consider the country?s history when workers had few
rights, President Jacob Zuma said.

Labour brokers are not exempt from following employment policies, these
temporary employment providers have to adhere to strict labour legislation if they
hope to avoid losses.

Amendments to the labour law are intended to respond to the growing informalisation
of work in the South African labour market and to align the Basic Conditions of
Employment Act with the Labour Relations Act in addressing unfair labour practices.

In business, a poorly-run and inefficient payroll division is a serious risk to a company
but a highly trained payroll administrator means a legally compliant business as well as
happy
and motivated staff.

Recently employers have suffered a spate of losses at CCMA and bargaining councils
in cases relating to fixed-term contracts. The reason for this is that employers do
not understand the legal purpose of fixed-term contracts and the circumstances
under which they are safe to implement or terminate.

How should managers deal with incompatibility in the workplace? While the legal
meaning of incompatibility can be stretched to include an employee’s inability to fit in
with corporate culture it cannot be stretched to include the straightforward breaking
of the employer’s rules.

The Labour Courts are most intolerant of employers who do not follow their own
disciplinary policies and who cannot justify their dismissal decisions based on the
facts of the case at hand.

Employers should not assume that they can hide behind foreign incorporation or
foreign workplaces. Instead they should always first obtain expert labour law advice
before taking any action against employees regardless of where the employee works
or where the employer is based.

The law does not protect employers from unfair acts of employees. "The
fact is that, if employers cannot rely on the law for protection, they must protect
themselves" - Ivan Israelstam.

Most entrepreneurs assume that the probationary employment period provides a
license to dismiss the probationary employee at will. Allon Raiz explains that there is
very little difference between the rights of an individual who is fully employed and one
who is on probation.

One of the key objectives to amending the Basic Conditions of Employment Act (BCEA) is to protect vulnerable workers from exploitation, members of Portfolio Committee on Labour were told

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