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Ivan Israelstam

Employees may be hired on a variety of different forms of contract. This week Ivan Israelstam explains what the implications of the various contracts are, when employers are not happy with employee performance and seek to terminate the contract. 

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. 

When is a dismissal justified - and what circumstances need to be taken into account before an employer decides to dismiss an employee? Various courts have confirmed that the circumstances do matter. So it is not possible to simply state X action requires dismissal. Ivan Israelstam provides examples to illustrate how an employer should consider all the circumstances before coming to a decision.  

The key document for employers to follow when taking disciplinary action, is the Code of Good Practice: Dismissal (The Code), contained in Schedule 8 of the Labour Relations Act (LRA). This should be read in conjunction with the employer's own Disciplinary Procedure. This week Ivan Israelstam uses cases to explain the difficulties that arise should an employee request to be represented by a lawyer at the internal disciplinary enquiry. 

There are a number of reasons why employers might suspend an employee. This week Ivan Israelstam deals with these questions: What are the reasons for suspension? What are the risks associated with each reason?

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.  

The CCMA Guidelines: Misconduct Arbitrations (The Guidelines) states that it is not unfair for employers to use third parties such as attorneys to chair disciplinary hearings. However, these highly important guidelines do not give disciplinary hearing chairpersons the right to conduct such hearings in a biased manner. The Guidelines oblige Commissioners to assess whether workplace dismissals are fair or unfair, and it is difficult to see how such dismissals can be fair if the presiding officer is biased and if it is shown that such bias results directly in prejudice to the employee.

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.  

Employers sometimes become emotional about an employee, and will manipulate circumstances to achieve a dismissal. One of the ways of doing this is to put further allegations against an employee, when the matter has previously been decided. Ivan Israemstam quotes a number of cases to illustrate the point of when re-doing hearings is justifiable - and how employers may lose if they manipulate the circumstances.

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.

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