CCMA

Good practices during recruitment of new employees are critical to business success. One key issue is to obtain relevant documentary evidence of qualifications and the employer has the responsibility to ensure that the documents, such as qualifications and licences are genuine. Obtaining a history of the potential employee's past work experience may be more difficult and what will be considered relevant to the position may not always be clear.  This week Ivan Israelstam explains the complexities in establishing what is relevant. 

This week Ivan Israelstam looks at the Labour Relations and Employment Equity Acts to find the definition of workplace "victimisation". He answers a number of questions: What does this term mean? What actions by an employer could constitute victimisation? What are the implications for a constructive dismissal claim?

Employers do complete employment contracts before the person commences work, but does that make the person an employee? What are the implications is the employer decides to terminate the contract even before the person has commenced work? This week Ivan Israestam deals with these interesting labour law questions. 

Employers may suspend an employee in a number of circumstances, some are reasonable and fair, but others may simply be as a result of an employer trying to make life difficult for an employee so that the employee will resign.  This week Ivan Israelstam explains all the various circumstances of suspensions.

This week Ivan Israelstam explains potential forms of disruption and indiscipline at the workplace - what he refers to as workplace rebellions. The article goes on to consider when dismissal is a fair response by the employer, quoting cases to show how the CCMA will respond to allegations of unfair dismissal. 

Employers may believe that by using a fixed-term contract, they will avoid having to permanently employ a person. However, this week Ivan Israelstam explains how an employer can inadvertently guarantee a temporary employee a reasonable expectation of further employment.

What exactly is entrapment and is it legal for an employer to entrap an employee? What is the difference between entrapment, and trapping? Employers who are not trained lawyers may well find this all very difficult to understand and end up on the wrong side of a CCMA decision. This week Ivan Israelstam explains what an employer needs to do in order to prove that they have acted legally and fairly in a dismissal.

In common law employers and employees have the obligation to treat each other fairly and within the law. What does that mean? This week Ivan Israelstam explains very clearly what the obligations are for both employers and employees. The CCMA arbitrators and the Labour Court and Labour Appeal Court judges will not take kindly to parties to do bring forward an accurate account of events, or are shown to have not met their obligations. 

At a hearing arranged to discipline an employee both parties are entitled bring witnesses. These witnesses may come from inside or outside the workplace. The accused employee has the right to cross-examine the witnesses brought by the employer. Ivan Israelstam explains further.

"Don't miss the arbitration hearing! It may well continue without you." Good advice from Ivan Israelstam this week. But what should you do if you didn't receive the notice of the arbitration hearing? Ivan explains how to proceed with a rescission application.   

At some time or other, most employers are faced with the decision on whether dishonesty by an employee warrants dismissal. This week Ivan Israelstam explains what the Code of Good Practice Dismissal requires employers to take into account. Ivan also explains the importance of mitigating factors that need to be taken into account before an employer makes the decision to dismiss.

  

Disciplinary hearings can be difficult situations for employers to handle.  Management who have been trained in the labour law and disciplinary processes stand the best chance of managing the difficulties that may arise. This week Ivan Israelstam makes these points and how disciplinary disruptions should be handled.

Why is is important that disciplinary action takes place timeously? This week Ivan Israelstam explains how difficult it is to prove that the trust relationship has been broken sufficient to warrant dismissal - if the disciplinary procedure was delayed and the employee was allowed to continue working.

This week Ivan Israelstam explains the concept of double jeopardy, and why it is important that employers understand what it is, and how to avoid actions that count as double jeopardy.  

Sex related acts not always sexual harassment - that is the outcome of a case Ivan Israelstam examines this week.  This case indicates how important it is to ensure that disciplinary action is taken timeously.  A delay - and allowing the employee to continue working - would indicate that the trust relationship is not broken. Therefore, dismissal may be found to be unfair.

Ivan Israelstam explains the many ways that communication can go astray between the CCMA and the employer - and the very expensive consequences of the mis-communication.  This week Ivan explains why it is essential for business owners and executives to take labour law seriously and ensure that all management and supervisory levels understand how to manage employees within the law. 

This week Ivan Israelstam uses a dismissal case that went from CCMA, to Labour Court, and finally to the Labour Appeal Court, but the dismissed employee was still re-instated - to explain the importance of handling investigations and disciplinary matters competently, and to ensure that any procedures at CCMA or courts are well prepared.  Above all to avoid emotion.  

This week Ivan Israelstam explains why it is necessary to ensure that no names with racial meanings are used at the workplace. Also why it is important that employers investigate any allegations of racism at the workplace. Decisions of the Labour Court and a Bargaining Council provide good guidance.

What should an employer do if they believe that a Commision for Conciliation Mediation and Arbitration (CCMA) arbitrator has behaved inappropriately, or failed to take into account all aspects of the case, or otherwise misdirected themselves and come to an incorrect conclusion? Ivan Israelstam uses a number of cases to provide examples of how employers have taken up challenges to the the decisions of CCMA Commissioners in the Labour Court.  

What is the procedure for an arbitration? Must I take my witnesses along with me? Must I take the evidence - the documents/video recordings along to the CCMA with me? This week Ivan Israelstam makes clear exactly how the CCMA Commissioner will run the arbitration.  The following questions are answered: who speaks first, what do the participants present, what is the role of the witnesses, and how is the evidence presented?  

How does the dispute resolution system work in South Africa? New employers and new employees in the human resources, personnel, and industrial relations fields, as well as students will find the explanation by Ivan Israelstam this week very useful.   

Everyone can quote examples of entering a retail store, other service provider, or office, looking for service - only to find an employee filing their nails, or talking on a private call on their the cell phone, or clearly on a social network. Now who is responsible for this behaviour?  Yes, the individual himself or herself, but the key question is where is management?  Why is this employee allowed to behave like this in company time? This week Ivan Israelstam approaches the issue of management responsibility.

This week Ivan Israelstam explains why it is important that an employee should be allowed to cross-examination witnesses giving evidence at a disciplinary hearing. Sometimes a chairperson will interrupt or limit the employee's questions.  What is the implication when this happens?

What rights does an employer have to discipline an employee for misconduct outside the workplace? What will be taken into account when an employee commits an offence - or a related crime - outside the workplace? This week Ivan Israelstam explains what factors will be taken into account by the CCMA. 

This week Ivan Israelstam persuades employers to protect themselves by joining an employer organisation - so that they have protection at the CCMA. Ivan expresses the opinion that labour law provides very little protection for employers and that the protection of employees has been increasing over time. He provides examples from the cases.

 

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