Contributors

Employers deal with a range of issues related to illness, for example: a genuinely ill employee who obtains a certificate from a bogus medical practitioner, or a traditional healer; or an employee who is not ill at all but obtains a fake medical certificate; or an employee who was ill but who extends the time given on a genuine certificate by altering the date - such as from a 1 to an 11 to obtain more days off. This week Ivan Israelstam explains the approach of CCMA Commissioners, and when disciplinary action may be taken.

Many employers think that by not putting anything in writing they are protecting themselves. On the contrary, as Ivan Israelstam explains this week, they are putting themselves in a very vulnerable position, where they will not be able to protect themselves when a dismissed employee claims that the company did not have any rules and standards, and allege that no procedure was followed in their dismissal.

Employers may feel that issues of sex and gender have nothing to do with running their business. However, the Employment Equity Act has specific prohibitions against unfair discrimination. Such allegations may arise as a result of employee behaviour, but also management decision-making in recruitment and promotion appointments This week Ivan Israelstam explains how the Labour Court has dealt with these cases.

The circumstances of every disciplinary enquiry are different - as are the personal circumstances of the employee involved. Therefore before deciding upon a dismissal decision, the chairperson of a disciplinary enquiry needs to take into account a range of factors in addition to what occurred. Ivan Israelstam explains how the CCMA and bargaining councils have given guidance on how extenuating circumstances should be taken into account.

Insubordination is generally considered to be a serious offence. That is because it involves a refusal to obey a lawful and reasonable instruction of someone more senior in the hierarchy of the organisation. Refusal to follow the instruction may be seen as undermining the legitimate authority of a manager or supervisor. However this week Ivan Israelstam explains why it is important to consider the circumstances of each specific case before deciding that a dismissal is the appropriate response.

It is critical that employers correctly identify what are the inherent requirements of a job. These should be based very clearly on what is required to meet the requirements of the job. Requirements should not be based on any potentially discriminatory criteria, such as religious belief. An issue arises when a requirement of the religion, such as growing a beard is potentially in conflict with a company rule requiring employees to be clean-shaven. This week Ivan Israelstam explains further how such apparent conflicts are judged.

Employers may be inclined to use retrenchment to solve various types of human resource "problems". For example: to dismiss non-performing employees who have not been performance managed, or to change the employer demographic profile, or to dismiss an employee whom management regard as a "troublemaker". However, the CCMA and Labour Court will closely examine the criteria used to identify potential retrenchees. Retrenching an employee is a very serious step - not to be taken lightly, or without clear labour law advice. Ivan Israelstam explains further.

Not all employees behave perfectly every day. Employers are required to deal with employees that may be disruptive for a range of personal or work-related reasons. It is important for employers to remain calm at all time, not to overreact, and to follow their disciplinary procedure at all times. This week Ivan Israelstam explains further why this advice is so important.

What are the implications of saying that the disciplinary process does not mean to be a formal process? That is the question addressed this week by Ivan Israelstam. The key point is how will the employer prove that the procedure adopted was fair, and that the employee received a fair hearing if there is no documentary trail?

The Protected Disclosures Act protects an employee who "blows the whistle" on company non-compliance. In addition, an employer who takes disciplinary action against an employee for whistleblowing may find that they have committed an unfair labour practice in terms of the Labour Relations Act. Ivan Israelstam explains what happened in some relevant cases.

Using retrenchment as a means of dealing with poor performers is not only risky and potentially very expensive, but also represents a failure of management. This week Ivan Israelstam explains what constitutes fair criteria for retrenchment and the possible costs to an employer of failing to conduct a procedurally fair consultation.

This week Ivan Israelstam explains why employers and managers are well-advised to ensure that they understand exactly what employee entitlements are under the Basic Conditions of Employment Act (BCEA). In addition, when hearing dismissal disputes under the Labour Relations Act (LRA), the CCMA may also allow employment conditions under the BCEA to be heard with the dismissal matter.

This week Ivan Israelstam says: "without proof your case goes poof!" Arguing your case vehemently but without any substantiating evidence will not win your case - no matter how good your debating skills. What is required to win your case at a CCMA or bargaining council arbitration is evidence. Ivan explains that evidence may be presented via witnesses, documents, video, or recordings, and outlines the process at arbitration.

This week Ivan Israelstam demonstrates one of the results of many years of advising employers on disciplinary procedures, namely knowing the many unfair methods unscrupulous employers may use to "dismiss" employees. As Ivan explains using a biased (pre-briefed) presiding officer for a disciplinary hearing is highly likely to backfire when the dispute reaches the CCMA or bargaining council.

When a CCMA notice of an arbitration hearing arrives in a busy Human Resources department, there is a very real possibility that it does not receive the full attention that it deserves. The failure of an employer to attend an arbitration hearing at the CCMA without very good reason may be a very expensive error of judgement. This week Ivan Israelstam explains the grounds the Labour Court will accept for overturning an arbitration award.

When an employer has interns or trainees, such as apprentices, or learners on learnerships, are they defined as employees or not? This week Ivan Israelstam explains how the Labour Relations Act defines an "employee". As Ivan advises always ensure that trainees are treated fairly. We recommend that this article be read in conjunction with the Sectoral Determination on Learnerships available on the Department of Labour website.

Much has been said recently in the press and other forms of media on the subject of racism. What is of concern to me is what appears to be a lack of understanding as to what exactly racism is.

Employers do not always take allegations of sexual harassment seriously - such allegations may give rise to jokes and innuendo. However, employees have a right to a safe workplace and protection from discrimination. Cases of sexual harassment that are mishandled may lead to findings of unfair discrimination. Ivan Israelstam cites some cases to demonstrate the implications of failing to take seriously allegations of sexual harassment.

This week Ivan Israelstam explains what happened to employers who tried to avoid the requirements of the section on probation in the Code of Good Practice on Dismissal. Pretending an employee is on a fixed term contract - or an independent contractor - will cause just as much trouble at the CCMA. So the best practice is to provide the counselling, guidance or training that a probationary employee requires.

Before embarking on disciplinary procedures in serious cases of misconduct, employers often question whether the action is enough to warrant dismissal. One of the key factors in this decision is whether the trust relationship has been broken. This week Ivan Israelstam explains why this factor is important.