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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.

 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)).

The recent Labour Court judgment in Botes v City of Joburg Property Company SOC Ltd and Another [2021] 2 BLLR 181 (LC) put it beyond doubt that issues which fall under section 23 of the Constitution, the right to fair labour practices, are governed by the principles of procedural and substantive fairness. Furthermore, the Court indicated that such issues are primarily dealt with through the Labour Relations Act 66 of 1995 ("LRA").

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.

South African labour law - often criticised for restricting recruitment because employers believe that they cannot dismiss an employee. Whereas, as Ivan Israelstam points out, investing the time and money into good quality training on labour law for management, will pay off many times over in costs saved from adverse CCMA and Bargaining Council decisions.

This week Ivan Israelstam explains the history of a case, which went all the way through to the Constitutional Court. The case concerned employers' rights over dismissal decisions. Ivan explains the final outcome.

Employees do sometimes lay frivolous and vexatious claims against employers at the CCMA.  However, employees who do so may be ordered to pay the employer's legal costs. Even so, the employer should not give employees easy claims by failing to behave legally and responsively; and should definitely not underestimate the importance of preparing a response - even if the employees claims are spurious.

Ivan Israelstam illustrates with examples, why it is necessary for employers to ensure that incidents requiring disciplinary hearings, are fully investigated; and the evidence is collated and prepared ready for presentation. Failure to complete the investigation, the preparation, and the presentation steps is highly likely to lead to dismissed employees being reinstated by the Commission for Conciliation Mediation and Arbitration. 

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