CCMA

One of the unfortunate consequences for employees of this outbreak of corona virus, is potential retrenchment. This week Ivan explains the benefits offered by the Department of Employment and Labour to mitigate this eventuality, and reminds employers of the importance of following the consultation steps as set our in the retrenchment clauses of the Labour Relations Act. 

The Labour Minister and the CCMA were called in for urgent assistance when workers at the Pick n Pay distribution centre in Gauteng embarked on unprotected industrial action, demanding additional pay while working during the national lockdown.

CCMA

The CCMA has released an urgent directive in response to the Covid-19 outbreak in South Africa. It highlights the directive issued by the President of the Republic of South Africa, the guidelines for the containment of the Coronavirus in the public service, and the protocols issued by the National Institute for Communicable Diseases.

Last week, Ivan Israelstam explained the personal reasons employers may have to utilise probation to dismiss employees. This week, Ivan describes the alternative action the employers may take - instead of dismissing the employee, the employee is demoted.  This action, equally as with the dismissals, may run into criticism at the Commission for Conciliation Moderation and Arbitration (CCMA). 

This week Ivan Israelstam explains why "James Bond" employers, who use probation to simply dismiss employees - whether they have broken rules, or just simply because they are not popular with the boss, will be tripped up at the Commission for Conciliation Mediation and Arbitration (CCMA).

The retrenchment of a senior management employee will always be a difficult exercise, and all the more reason why the employer should ensure compliance with the Labour Relations Act and Codes of Good Practice, and that the correct procedures are followed. Ivan Israelstam quotes a case where the employer tried to both retrench and disciplline a senior employee.

For employers, any form of workplace disruption causes concern and frustration. Ivan Israelstam explains why it is important that employers do not respond emotionally to such disruptions, and only respond once their actions have been carefully considered.

This article explains the challenges labour brokers experience, when the employer refuses to accept the person, who has been placed at their site.

Ivan Israelstam

Although there is a formal Code of Good Practice for Dismissal it is also possible to have a less formal approach to disciplinary procedures in certain circumstances.

"Whistleblowing" - not the making of noise with a little mouth toy - making a report, which "exposes secretive information or activity that is deemed illegal, unethical, or not correct within a private or public organization" (Wikipaedia definition). What are the consequences of an employee making a report about something happening reporting on administrative, or other actions, which are being carried out in the organisation, or institution of their employer? Ivan Israelstam explains how the Protected Disclosures Act, protects whistleblowers, but also how employers are protected.

Employers and trade union officials, who present matters at the CCMA, will be interested in the list of powers, which Ivan Israelstam has listed.  Questions are answered, such as: Is the CCMA Commissioner empowered to overturn a dismissal decision?  

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.   

This week, Ivan Israelstam lays out the procedures for an arbitration hearing, and the explains why it is critical to present evidence to support your case. 

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.  

This week Ivan Istraelstam explains all of the dispute resolution bodies, and the fees and costs for an employer who is found to have unfairly dismissed an employee.

As with all disciplines, labour law has its own terminology. What does "hiding behind the corporate veil" mean? Ivan Israelstam explains how employers sometimes seek to hide the true nature of a business practice, and how the CCMA, bargaining councils, and labour courts will respond.   

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. Ivan Israelstam provides cases to demonstrate the consequences of employer non-attendance.

There is a national strategy to improve skills and knowledge, to support people to find employment, and reduce unemployment. Learning programmes to achieve this, include apprenticeships, learnerships, graduate work programmes, in-service experience as part of a qualification. The people on these programmes are required to have an employment contract for the duration of the programme. What are the implications of that "employment" contract?

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 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.  

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