Ivan Israelstam

This week Ivan Israelstam pays attention to the use of labour brokers and temporary employment service agencies (TES). There are many reasons why employers make this decision on how to fill their company needs. But are there risks to using these services, instead of employing people on the company payroll as permanent employees? Read on for further details.  

This week Ivan Israelstam covers disciplinary hearings. What should an employer take into account when an employee does not attend a disciplinary hearing, and what does the law say about employees who deliberately try to delay the disciplinary hearing from proceeding? 

Some employers may assume that illegal immigrants or employees without work permits have no legal rights in South Africa. This view may lead employers to mistreat staff, who are vulnerable because the employer believes that such employees have no recourse to labour law. This week Ivan Israelstam explains that employers should take note that this view is incorrect and why it is ill-advised. 

This week Ivan Israelstam looks at the cases of alleged sexual harassment.  Questions answered are: how should an employer respond to sexual harassment allegations by an employee, and what are the obligations placed upon an employer?   

What should an employer do if they believe that a Commision for Conciliation Mediation and Arbitration (CCMA) arbitrator has behaved inappropriately, or failed to take into account all aspects of the case, or otherwise misdirected themselves and come to an incorrect conclusion? Ivan Israelstam uses a number of cases to provide examples of how employers have taken up challenges to the the decisions of CCMA Commissioners in the Labour Court.  

Ivan Israelstam explains the implications for certain employers of the Criminal Law Amendment Act. This applies especially to those employers who employ persons who work with children or vulnerable adults, such as the mentally disabled. Criminal prosecution could result if the employer does not verify the status of the persons they employ - and employ persons who are listed as sex offenders.

What is the procedure for an arbitration? Must I take my witnesses along with me? Must I take the evidence - the documents/video recordings along to the CCMA with me? This week Ivan Israelstam makes clear exactly how the CCMA Commissioner will run the arbitration.  The following questions are answered: who speaks first, what do the participants present, what is the role of the witnesses, and how is the evidence presented?  

This week Ivan Israelstam explains that labour law does allow an employer to dismiss an employee.  However, labour law expertise is required to ensure that the dismissal is both procedurally and substantively fair. Employers cannot simply to decide to dismiss an employee on the word of an external party - without following any internal procedures. 

This week Ivan Israelstam explains why it is important for employers to understand the rights of pregnant women and the responsibilities of the employer. How should the employer deal with maternity leave? There is an entitlement for 4 months maternity leave and employees should not be pressured to take a shorter period of maternity leave. 

 

Ivan Israelstam sub-titled this article: Sick employees can drive employers to drink. This week Ivan explains what the obligations are on employers when they have an employee who is ill.  The question is: what does "ill" mean? Employees who have become addicted to substances, or who have become disabled in some manner have certain rights, which the employer is obliged to uphold.  Ivan explains further ...

How does the dispute resolution system work in South Africa? New employers and new employees in the human resources, personnel, and industrial relations fields, as well as students will find the explanation by Ivan Israelstam this week very useful.   

This week Ivan Israelstam provides a comprehensive explanation on what is required to investigate allegations of misconduct.  Ivan points out that ignoring incidents represents poor management, but before acting upon allegations of misconduct, it is important to conduct investigation into the all the relevant evidence of misconduct. 

This week Ivan Israelstam addresses the danger of an approach used by some employers, who have not effectively managed performance and behaviour. To remove "troublesome" employees - who should have been disciplined or performance managed - the employer goes to great lengths to manipulate positions, and to create a redeployment pool, which effectively amounts to a redundancy pool. Ivan demonstrates how the Labour Appeal Court has the power to uncover alternative agenda, and the consequences of such poor management performance. 

This week, Ivan Israelstam explains the legally distinct reasons for dismissal: for misconduct, for poor work performance, and for operational requirements.  These are distinctly different reasons, and each has a distinctly different procedure to achieve a legally compliant dismissal. There are always exceptions in the cases, but employers are well-advised to follow the standard methods for each circumstance. 

Everyone can quote examples of entering a retail store, other service provider, or office, looking for service - only to find an employee filing their nails, or talking on a private call on their the cell phone, or clearly on a social network. Now who is responsible for this behaviour?  Yes, the individual himself or herself, but the key question is where is management?  Why is this employee allowed to behave like this in company time? This week Ivan Israelstam approaches the issue of management responsibility.

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?

What is a "transfer as a going concern" and what are the implications for employees who are part of the transfer? This week Ivan Israelstam explains how the courts have developed the answer to these very complex questions over a period of time. 

What rights does an employer have to discipline an employee for misconduct outside the workplace? What will be taken into account when an employee commits an offence - or a related crime - outside the workplace? This week Ivan Israelstam explains what factors will be taken into account by the CCMA. 

This week Ivan Israelstam persuades employers to protect themselves by joining an employer organisation - so that they have protection at the CCMA. Ivan expresses the opinion that labour law provides very little protection for employers and that the protection of employees has been increasing over time. He provides examples from the cases.

 

This week Ivan Israelstam asks the question: why do employers continue to get it wrong?  The requirements are clearly laid out in plain English, but employers don't follow the procedural consultation requirements.  Even though there may be a valid operational requirement, it is still necessary to ensure that the procedures according to the Labour Relations Act are still followed - to ensure a procedurally fair retrenchment.  

Ivan Israelstam

Employers sometimes think that employing a person on a fixed-term contract will save the company any obligations in terms of labour law. Under employment equity legislation and codes, there are already implications for employing people on long term contracts in what are permanent positions. This week Ivan Israelstam explains the implications of a Labour Court decision, which finds the employer did not have a right to terminate a fixed-term contract before the end of the term.  

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

Labour law - sometimes referred to as a minefield or a jungle - intended to indicate the complexity of the field for the unwary and unqualified. This week Ivan Israelstam sets out how to judge whether the person advising you really is knowledgeable and experienced, and what services they should be able to provide to you. 

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.

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