Two important issues are raised his week by Ivan Israelstam - first that employers should not use retrenchment as an excuse to deal with their failure to manage employee performance, and when conducting restructuring and retrenchment exercises, there are clear steps to be followed to consult with employees - these include consultation, information sharing, and consideration of alternatives. For details on the requirements - see Labour Relations Act sections 189 and 189A, and the Code of Good Practice on Operational Requirements Dismissals.

Ivan Israelstam explains in detail employee rights in terms of the Basic Conditions of Employment Act (BCEA), and how the Commission for Conciliation Mediation and Arbitration (CCMA) and the Labour Court may approach disputes, which combine BCEA disputes, with matters under the Labour Relations Act (LRA), such as unfair dismissal disputes.   

What is required to suspend an employee from work?  This week Ivan Israelstam explains how employers can cause themselves very expensive problems by losing their temper and treating employees unfairly.  

"Hearing chairpersons should not count their chickens before they hatch" is good advice. This week Ivan Israelstam, how - and why - some employers try to manipulate the disciplinary process, and the potential consequences if this advice is not heeded. 

This week Ivan Israelstam explains the process an exployer should adopt if a retrenchment of employees is contemplated. He explains what the steps are to be followed, to ensure that the employer complies with the requirements of the Labour Relations Act for what is an operational requirements dismissal.

What is a transfer of a business, and what are the implications for the new owner of the business? This week Ivan Israelstam uses examples of cases to explain the expensive consequences for a business owner, who does not follow the requirements of the Labour Relations Act. 

When may an employee reasonably refuse an instruction? When will a refusal to carry out an instruction be insubordination? Important questions for an employer to be clear about - to avoid launching into disciplinary action that will be unfair.

Once a recruitment decision is made, the next step is to conclude an employment contract. Has employment started and does the new employee have rights from the date of signing the contract? What is the guidance of the labour courts? 

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. 

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?

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.  

The Labour Relations Act (LRA) sets out the rights of an employee in disciplinary matters - giving effect to individual Constitutional rights. In disputes, the employer needs to be able to prove that all of the rights as set out in the LRA, were adhered to. This week Ivan Israelstam explains how an employer would provde their compliance - and the implications for employer procedures. 

It is legally risky for employers to fire an employee for using alcohol or drugs. This is because, where the employee is addicted, he/she is legally classified as being ill and is protected by law.

This week Ivan provides examples from decided cases of what would not be sufficient to justify dismissal, or make the continued employment relationship intolerable. This is compared with how the Labour Appeal Court has approached allegations of racism, or racist language as:  “an anathema to sound industrial relations and a severe and degrading attack on the dignity of the employees in question”. 

There are a number of reasons why an employer might find a mutually agreed termination more time effective or efficient than other disciplinary procedures.  However, the employer should be very careful not to confuse a retrenchment situation - with very specific procedural requirements - and a genuine mutually agreed termination of the employment relationship. Importantly, such an end of the contract is not legally classed as a dismissal. Ivan Israelstam explains.

What is a conflict of interest, and may an employer dismiss an employee if there is a conflict of interest? This week Ivan Israelstam explains exactly what is required before a dismissal for conflict of interest will be sustainable at the CCMA. 

Don’t underestimate the power of trade unions. That is the advice of Ivan Israelstam. How should shop stewards be treated? Is it possible to discipline shop stewards? Are there additional requirements before disciplining a shop steward? Is it possible to dismiss a shop steward? This week Ivan explains the rights and responsibilities of shop stewards, and uses an example of a shop steward dismissal he defended successfully at CCMA.