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Contributors

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.

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.

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. 

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.

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