CCMA

Employers sometimes become emotional about an employee, and will manipulate circumstances to achieve a dismissal. One of the ways of doing this is to put further allegations against an employee, when the matter has previously been decided. Ivan Israemstam quotes a number of cases to illustrate the point of when re-doing hearings is justifiable - and how employers may lose if they manipulate the circumstances.

During 2014/15, and again in 2018, there have been a number of changes made to the legislation affecting the obligations of employers and the rights of employees, and responsibilities of commissioners presiding over misconduct hearings.  This week Ivan Israelstam points out that employers are failing to defend their decisions at the CCMA. A number of important changes are listed and Ivan will be covering these over the coming weeks.

This week Ivan Israelstam answers the question: what is workplace fraud? Then he goes explain what employers need to be able to prove to sustain a case, when there is a dismissal dispute lodged at the CCMA.  

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. 

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”. 

This week, Ivan Israelstam uses examples of cases from the CCMA, the Labour Court and the Labour Appeal Court, to explain how decisions can be overturned from one court to the other. Ivan explains why it is important for employers to have an understanding of the pattern of decisions, to understand what is clearly decided, and what is still uncertain - in order to be able to identify what is relevant to their own cases. 

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.

When an employer is faced with an employee who fails to perform, the Labour Relations Act sets out specific requirements to be fulfilled before the employer contemplates dismissal. These requirements are followed by a fair procedure. This week Ivan Israelstam explains what the requirements are, and how poor performance should be handled. 

Strikes are disruptive to companies and are costly to employers and employees. This week Ivan explains why private arbitration can be very beneficial in preventing strikes, and he explains the limitations of the CCMA and bargaining councils in dealing with issues.

A disruptive employee can influence company performance, reduce productivity, and upset fellow employees to the extent that they may leave. It is important for employers not to ignore an incompatibiiy problem, and before dismissing an employee - ensure that evidence has been obtained to confirm that the employee is the source of the incompatibility. Ivan Israelstam quotes a number of cases that illustrate how employers have gone wrong in the past. 

Are there different requirements for disciplinary action against a shop steward, and if so - what are the differences? That is the question Ivan Israelstam addresses this week. Essentially not all infractions by a shop steward would amount to gross misconduct. One example is the shop steward's position during negotiations - in that forum the shop steward addresses management as an equal. So using strong terms to reject management's proposal would not be insubordination. Ivan quotes cases to explain the differences between dismissing a shop steward and dismissing an employee.

When an arbitrator finds that an employee as been unfairly dismissed, the award will require the employee to be re-instated - unless there are conditions preventing reinstatement. This week Ivan Israelstam indicates the practical and psychological implications for the employer of having a re-instated employee within the workforce.

The start of a new calendar year is a good time for employers to review company policies and procedures. This week Ivan Israelstam explains the value of a disciplinary code to set out the rules of the employer. The employer should then ensure that all management and employees are trained in the interpretation of the rules. Employees need to be educated in the implications and sanctions if they break the rules.   

Businesses - or part of a business - are taken over by new concerns, or required services are outsourced. Then the service provider may be replaced by a second service provider. When do these business transfers fall under section 197 of the Labour Relations Act? Ivan Israelstam explains why it is so important to understand what business transfers are defined as transfers as a going concern.  

This week Ivan Israelstam explains why it is important for an employer not only to refer bribery and corruption activities to the SAPS, but also to conduct an internal disciplinary hearing before terminating the services of an employee. 

Not only employers, but also union officials and employees sometimes wonder what the words in the employment legislation mean. This is also seen in differences between the Labour Court and the CCMA and bargaining council arbitrators. This week Ivan provides examples of how the different acts aren't always clear.  

All employers need to be aware of RICA. This week Ivan Israelstam explains what RICA is, and what the implications are for employers who want to intercept an employee's emails, or listen to phone calls. What are the implications if an employer simply goes ahead without understanding the legal constraints?

When an employer dismisses an employee it is vitally important that the decision to dismiss is based upon solid evidence that is directly related to the reason to dismiss.  This week Ivan Israelstam explains what can go wrong in a CCMA Arbitration, or Labour Court review if the evidence is not relevant to the dismissal decision - or the CCMA arbitrator has failed to consider the relevant evidence. 

Sometimes employees do come in to work and declare that they are resigning with immediate effect. This can be for a number of personal reasons, irritation with management, and so on.  This week Ivan Israelstam explains the potential implications for employers when this occurs.

Employers do sometimes find it difficult to prove at CCMA hearings the allegations they make against employees, who have been dismissed. One of the most common forms of evidence used in modern workplaces is camera videotape evidence.  However, this is not without problems. This week Ivan Israelstam quotes cases where the camera videotape type evidence has been challenged.  

This week Ivan Israelstam points out that the CCMA and bargaining councils do have the jurisdiction to decide upon retrenchment disputes, if there is a failure to agree at conciliation. This arises from the amendments to the Labour Relations Act in 2002. It is critical that employers follow a fair procedure and not simply go ahead with retrenchments without engaging in a fair consultation process.  

Employers may be relieved when an employee confesses to some misdemeanour, and assume that a dismissal will then automatically be justified.  This week Ivan Isrealstam explains why this is not so. There are a number of reasons why an employer cannot simply go ahead and dismiss the employee. 

This week Ivan Israelstam provides examples from the Commission for Conciliation Mediation and Arbitrator and the Labour Court to explain the complexity of decisions on what may be considered as an unfair labour practice.  

This week Ivan Israelstam explains how the word "unfair" is interpreted in labour law, and why it is so important for employers to understand what is regarded as unfair and what is automatically unfair. This is particularly important for employers to understand in relation to reasons for dismissal.

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