Ivan Israelstam

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.

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.

Employers who conclude employment contracts, and then terminate the contract for some reason prior to the employee commencing work, need to be aware that the CCMA and Labour Courts will regard this as a dismissal. The meaning of the wording "...works for ..." has been interpreted to include after the contract has been signed, but before actual work has begun. This week Ivan Israelstam explains further.

Benefits paid to employees may represent an increasing cost to employers, but it is not possible for an employer to simply remove benefits that an employee previously enjoyed without challenge. Such challenges will be heard at the CCMA. This week Ivan Israelstam explains just how much a successful challenge may cost an employer who loses their case.

In a country of high unemployment rates, competition for jobs is fierce. Some individuals feel that they will improve their chances of employment by enhancing the contents of their job history - or alternatively hiding the details of previous disciplinary action, or dismissals. While some personal information is protected by the Constitution to prevent unfair discrimination, the recruiting employer is entitled to all details relevant to the job requirements. Ivan Israelstam explains the types of deception and how they have been handled by the CCMA.

Employers may not realise that many of their decisions to restructure or reorganise reporting relationships within the company many in fact represent a demotion for an employee. Changes that affect an employee adversely may be defined as a demotion. This week Ivan Israelstam explains what may constitute a demotion, and how the CCMA will interpret the preocedural requirements related to demotions..

Employers may view probation as a means of easily terminating employees, who don't quite "fit in" or don't meet company standards. There are clearly set out requirements for employers to comply with before dismissing a probationary employee. This week Ivan Israelstam explains what happens when the James Bond type employer meets the CCMA commissioner.

Management, executives, and company boards do not always agree on an appropriate method to deal with senior employees when a company suffers a financial downturn. This week Ivan Israelstam points out how important it is to investigate the facts before deciding on the correct path to follow. A company should not agree on a retrenchment and then try also to dismiss for some form of misconduct or lack of performance.

Employers may retrench employees for reasons of economic, structural, or technological reasons, in terms of the Labour Relations Act and the Code of Good Practice on Operational Requirements Dismissals. The Labour Appeal Court has stated that retrenchment has a serious impact upon employees. Decisions on retrenchment therefore have to be made based upon sound objective criteria, which emerge after consultation with the parties concerned, and are backed by evidence. Ivan Israelstam sets out the issues determined by the courts in two cases.

Employers deal with a range of issues related to illness, for example: a genuinely ill employee who obtains a certificate from a bogus medical practitioner, or a traditional healer; or an employee who is not ill at all but obtains a fake medical certificate; or an employee who was ill but who extends the time given on a genuine certificate by altering the date - such as from a 1 to an 11 to obtain more days off. This week Ivan Israelstam explains the approach of CCMA Commissioners, and when disciplinary action may be taken.

Many employers think that by not putting anything in writing they are protecting themselves. On the contrary, as Ivan Israelstam explains this week, they are putting themselves in a very vulnerable position, where they will not be able to protect themselves when a dismissed employee claims that the company did not have any rules and standards, and allege that no procedure was followed in their dismissal.

Employers may feel that issues of sex and gender have nothing to do with running their business. However, the Employment Equity Act has specific prohibitions against unfair discrimination. Such allegations may arise as a result of employee behaviour, but also management decision-making in recruitment and promotion appointments This week Ivan Israelstam explains how the Labour Court has dealt with these cases.

The circumstances of every disciplinary enquiry are different - as are the personal circumstances of the employee involved. Therefore before deciding upon a dismissal decision, the chairperson of a disciplinary enquiry needs to take into account a range of factors in addition to what occurred. Ivan Israelstam explains how the CCMA and bargaining councils have given guidance on how extenuating circumstances should be taken into account.

An employer may think that by offering an employee a fixed term contract, they will be able to simply terminate the employee at the end of the contract. However, as Ivan Israelstam explains it depends upon the circumstances and company policy and practice. An employer may inadvertently give a temporary employee an expectation of further employment.

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