Ivan Israelstam

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.

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.

Before embarking upon large scale retrechments, employers need to have a very clear understanding of what labour law requires. This week Ivan Israelstam explains the definition of large scale retrenchment and describes how the Labour Court has decided on retrenchment procedures. He concludes that everything is not clear and advises employers to seek legal assistance before embarking on large scale retrenchments.

Labour brokers - or temporary employment services (TES) - provide staff to companies, but sometimes fail to realise that they are also bound by the rquirements of labour law as employer. In addition to the legislation there may also be additional bargaining council determinations, which set conditions such as minimum wage rates. This week Ivan Israelstam explains how the CCMA has decided dismissal arbitrations involving labour brokers.

This week Ivan Israelstam expresses his view that the employer’s right to dismiss has been weakened. He explains how the Sidumo matter proceeded through various courts ultimately ending in a Constitutional Court decision, which provides the standard for employers to adhere to when deciding upon a dismissal sanction.

In dismissal or other disputes, when employers believe that the employee is not telling the truth or misrepresenting the facts related to the case, it is very important that employers take it very seriously and carefully prepare their own case, so that the Commissioner is able to reach the correct conclusion. Ivan Israelstam explains further.

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.

Employers who use consecutive fixed-term contracts for an employee, and then don't issue one for whatever reason - need to understand that the CCMA Commissioners will regard that employee as being permanent. This is just one of the examples that Ivan Israelstam quotes this week to explain why employers should not misuse fixed-term contracts. Using a fixed-term contract for probationary purposes is also not correct. Where the position is permanent; probation should be covered by a probationary clause in a permanent contract. There is also a requirement to provide instruction, guidance and counselling prior to reaching a dismissal decision for poor performance during the probationary period.

Over a long period of time, many employers will be able to recall employees, who have not fitted in well in the organisational culture - despite being qualified for the position. However, sometimes the responsibility for not being able to get on with other employees does not rest with the employee, but elsewhere - and possibly with the manager or boss. This week Ivan Israelstam provides a practical example of the limits of managerial prerogative, and how any apparent incompatibility should be identified and handled. He also explains how this differs from misconduct such as the refusal to follow company rules..

Leadership skills and organisational ability are required by a union organiser as much as a supervisor or manager. Employer development and promotion policies and practices are likely then to identify someone who is a union member for promotion to a managerial or supervisory position. This week Ivan Israelstam quotes from a Labour Court case, which covers the employee rights and how the employer should handle the apparent conflict of interest.

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.

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.

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.

The Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act) provides the guidelines for employers to follow in disciplinary proceedings. This code does not specifically require "cross-examination" but does provide that the employee must be aware of the allegations against them, to understand them, and be given a chance to state their side of the story - or defence - in response to the allegations.This week Ivan Israelstam explains the meaning of "cross-examination" and provides advice on how employers should proceed.

The South African Constitution provides employees with the right to fair labour practices. Prior to a dismissal decision an employee should be made aware of the allegations against him/her and given chance to be heard on the matter.

When does South African labour law apply? This week Ivan gives us a number of examples where foreign firms thought - incorrectly - that they could do as they please with their employees. No - not so. Ivan demonstrates through a number of cases where these employers made some very serious - and extremely expensive - mistakes. Our courts found that they did have jurisdiction and the defaulting employers paid the employees' costs - in addition to all the other costs.

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 are sometimes disappointed and angry that a CCMA arbitration award has gone against them. This week Ivan Israelstam explains why this sometimes occurs, and what the standards are that CCMA Commissioners must meet. Ivan explains how this helps an employer deciding whether they should challenge the award.

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.

When faced with challenges raised by employees, employers may be tempted to opt for a retrenchment exercise to remove employees who may seem to be too challenging of management authority. This week Ivan Israelstam explains what may genuinely be regarded as an operational requirement and why employers should be careful not to concoct reasons that will not stand up in court.

The world of work is changing rapidly. As a result of technological advances, globalisation, and competition employers need to make changes to their working conditions. This week Ivan Israelstam deals with how an employer should react when employees are reluctant to change their working arrangements, such as shift patterns. How should the employer respond?

In the past, employers has consistently refused to allow lawyers to be present at internal disciplinary hearings. However, the ground has shifted slightly and employers would be well advised to consider the individual circumstances and individual disciplinary matter that is being heard. This week Ivan Israelstam explains how the ground has shifted.

A second generation transfer arises when a company first outsources a part of the company to a service provider company, who takes over the employees related to that company department or service. The contract is for a fixed period and the orginal company then re-tenders to a different service provider company to take over the provision of the services. The question arises: does the second service provider company have to take over those employees who were part of the original transfer? The answer has not been clear, and the courts have differed on the correct interpretation of s197 of the Labour Relations Act. This week Ivan Israelstam explains these different interpretations.

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.

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