Contributors

Not only employers, but also union officials and employees sometimes wonder what the words in the employment legislation mean. This is also seen in differences between the Labour Court and the CCMA and bargaining council arbitrators. This week Ivan provides examples of how the different acts aren't always clear.  

All employers need to be aware of RICA. This week Ivan Israelstam explains what RICA is, and what the implications are for employers who want to intercept an employee's emails, or listen to phone calls. What are the implications if an employer simply goes ahead without understanding the legal constraints?

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.

The days when learning was thought to be a passive process of receiving new ideas and information are long gone. Today, effective learning is energic, active and actionable, and promotes the application of new ideas and information. This type of learning is referred to as “active learning”.

As Ivan Israelstam explains this week, employers may sometimes decide to "get rid of" an employer for reasons of age. However, if the decision does not follow an established, documented, fair, and legal policy and practice, the action could prove not only - very expensive for the employer, but also damaging to the company reputation. 

This week Ivan Israelstam answers these questions: What is a Con-Arb, and how does it differ from conciliation and arbitration? What the implications if an employer receives a notification for a Con-Arb at the CCMA? How should an employer respond to a notice of Con-Arb? Can an employer object to a Con-Arb?  

Using case examples, employers receive guidance on how to handle recruitment and promotion decisions when their business is suffering from financial constraints.

In common law employers and employees have the obligation to treat each other fairly and within the law. What does that mean? This week Ivan Israelstam explains very clearly what the obligations are for both employers and employees.

This week Ivan Israelstam explains the responsibities of larger employer. The bigger the employer, the more that is required before dismissing a sick employee. The case against Standard Bank illustrates how the courts will consider the responsibilities of the larger employers. This is especially a concern where the employee has long service and previously been a good employee. 

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.  

In medium to large size companies, there will usually be a number of specialist departments. It is critical that employees within the company understand that any communication arriving from the CCMA should be passed on to the person designated to deal with CCMA matters. Failing to attend an arbitration hearing may well have serious - and expensive - consequences for the company.

What are the policies that an employer should have in place to deal with allegations by an employee of sexual harassment? What steps should the employer take if they receive an allegation, and is dismissal always the correct disciplinary action? This week Ivan Israelstam provides guidance for employers.

Disciplinary warnings are given with a view to correcting employee behaviour. But, what is the difference if the employer policy says that warnings have an expiry period and must be removed from files, or alternatively, the warning expires but if kept on record. Will this be relevant? Just one of the questions on warnings that Ivan Israelstam addresses this week.  

When an employer suspects that a group of employees may be cooperating in some way - in dishonest acts to defraud the company financially, or remove property - there is the suspicion of collective guilt. This week Ivan Israelstam examines how the Commission for Conciliation Mediation and Arbitration (CCMA) and labour courts have viewed this kind of collective behaviour. Ivan uses cases won and lost to demonstrate how crucial it is to consider the circumstances of the particular case. A Labour Appeal Court case shows what the employer needs to successfully prove such a case.

When an employer sets up a disciplinary hearing, or decides following an investigation that there is more to be answered and investigated, there may be reason to place the relevant employee on suspension. However, as with everything else in employment and labour law, there is a procedure regarded as fair, which should be followed, Is there a reason why the employer feels suspension is necessary, such as threatening or intimidating potential witnesses?  Ivan provides cases to demonstrate this point.

What is "whistle-blowing" , and when is it protected? This week Ivan Israelstam explains what legislation protects employees: not just the Protected Disclosures Act, but also the Labour Relations Act. Then Ivan  looks at cases, where the employee has disclosed information, and explains how the Labour Court and the Labour Appeal Court have dealt with such cases. 

 Labour law provides scant protection for employers. That is the opinion of Ivan Israelstam. This week Ivan explains why he holds that opinion, and gives advice to employers on how he believes they should react, and protect their businesses going forward.

This week Ivan Israelstam explains that the CCMA has produced guidelines, which will guide the work of commissioners arbitrating dismissal disputes. The guidelines explain that rulings should be lawful, reasonable, and procedurally fair, which gives effect to the Constitutional right to fair administrative action (s33(1)).

This week,  Ivan Israelstam applies decided cases of the Commission for Conciliation Mediation and Arbitration (CCMA) to explain what should be considered before an employer takes a decision to dismiss an employee. The examples also highlight some inconsistecies in the decisions of the CCMA, which do make the employer's job more difficult.

This week, Ivan Israelstam starts the 2021 year with a question on disciplinary hearing procedures. What is hearsay evidence? What is the consequence of using hearsay evidence? Is hearsay evidence ever acceptable?