This week Ivan Israelstam asks the question: why do employers continue to get it wrong?  The requirements are clearly laid out in plain English, but employers don't follow the procedural consultation requirements.  Even though there may be a valid operational requirement, it is still necessary to ensure that the procedures according to the Labour Relations Act are still followed - to ensure a procedurally fair retrenchment.  

Ivan Israelstam

Many employers will be able to provide examples of how employees ignore or don't comply with requests or instructions. When does failure to comply with instructions constitute sufficient grounds for dismissal?  This week Ivan Israelstam quotes from actual CCMA cases, where employees have been re-instated. Ivan highlights the challenge employers face - achieving a fair dismissal acceptable to the CCMA.  

Ivan Israelstam

Labour law - sometimes referred to as a minefield or a jungle - intended to indicate the complexity of the field for the unwary and unqualified. This week Ivan Israelstam sets out how to judge whether the person advising you really is knowledgeable and experienced, and what services they should be able to provide to you. 

Ivan Israelstam

Many employers will be able to relate to the situation of being infurirated by employee behaviour. However, as Ivan Israelstam explains this week, it is very dangerous for an employer to react emotionally and overstate the allegation of misconduct - by alleging dereliction of duty. This term has a very specific legal meaning and therefore at the CCMA the employer will have the responsibility for proving that the misconduct was a deliberate and intentional action by the employee.

Before embarking upon large scale retrechments, employers need to have a very clear understanding of what labour law requires. This week Ivan Israelstam explains the definition of large scale retrenchment and describes how the Labour Court has decided on retrenchment procedures. He concludes that everything is not clear and advises employers to seek legal assistance before embarking on large scale retrenchments.

Labour brokers - or temporary employment services (TES) - provide staff to companies, but sometimes fail to realise that they are also bound by the rquirements of labour law as employer. In addition to the legislation there may also be additional bargaining council determinations, which set conditions such as minimum wage rates. This week Ivan Israelstam explains how the CCMA has decided dismissal arbitrations involving labour brokers.

how to prepare for a CCMA hearing

Need to prepare for a hearing at the CCMA? Here's a guide for first-timers attending a conciliation-arbitration hearing to walk you through all the steps.

What should an employer do when an employee is absent from the workplace for an extended period? What is the attitude of the CCMA if an employer dismisses the employee in his/her absence? What constitututes a resignation by an employee? There are many permutations to these questions. This week Ivan Israelstam points to some of the dangers in these cases, and cautions employers not to act in anger or in haste.

The Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act) provides the guidelines for employers to follow in disciplinary proceedings. This code does not specifically require "cross-examination" but does provide that the employee must be aware of the allegations against them, to understand them, and be given a chance to state their side of the story - or defence - in response to the allegations.This week Ivan Israelstam explains the meaning of "cross-examination" and provides advice on how employers should proceed.

The South African Constitution provides employees with the right to fair labour practices. Prior to a dismissal decision an employee should be made aware of the allegations against him/her and given chance to be heard on the matter.

Employers are sometimes disappointed and angry that a CCMA arbitration award has gone against them. This week Ivan Israelstam explains why this sometimes occurs, and what the standards are that CCMA Commissioners must meet. Ivan explains how this helps an employer deciding whether they should challenge the award.

In the past, employers has consistently refused to allow lawyers to be present at internal disciplinary hearings. However, the ground has shifted slightly and employers would be well advised to consider the individual circumstances and individual disciplinary matter that is being heard. This week Ivan Israelstam explains how the ground has shifted.

In any workplace there will be grievances from time to time. Employers may think that because there is no specific labour law describing how to handle grievances, that employee grievances may be ignored. However, where there is a pattern of grievances over a period of time employers are well advised to take these seriously, and investigate the circumstances of each complaint. Failure to do so may lead to various adverse effects upon the employer. Ivan Israelstam explains further.

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.

Employers may be surprised to find that there are costs that may accrue when they fail to follow correct disciplinary procedures in dismissing employees. There may be Conflict Dispute Resolution Centre - attached to Bargaining Councils (CDR) or Commission for Conciliation Mediation and Arbitration (CCMA) costs. This week Ivan Israelstam explains what the potential costs are when employers fail to follow the requirements for dismissing employees for a fair reason and following a fair procedure.

Labour law cases often make reference to "piercing the corporate veil" and readers may wonder whether this is only to do with corporate business. In fact, it relates to business of all sizes, some of which may be very small cc operations. This week Ivan explains what sort of business activities may result in arbitrators or judges "piercing the corporate veil" and the costs that may result.

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.

Section 197 of the Labour Relations Act (LRA) requires the new employer, in a takeover as a going concern, to take over all the employees of the old employer. A takeover of an enterprise “as a going concern” essentially means that the new employer is carrying on the same business as the old employer after a takeover. This week Ivan Israelstam explains that it is possible to vary the impact of the transfer if all the affected parties - including the employees are consulted and an agreement is reached.

Business takeovers - or transfers as a going concern - mean that the new owner of the business takes over all the employees and all the responsibilities of the old business. In addition, retrenchments as a result of a going concern transfer are regarded as automatically unfair. This week Ivan Israelstam explains some of the - potentially very expensive - technicalities.

Ivan Israelstam

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.

Ivan Israelstam

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.

Ivan Israelstam

This week Ivan Israelstam makes the case that labour law has become more restrictive upon employers. He explains that those who have used repeated fixed term contracts should no longer do that - only employ on a fixed term contract where there is a genuine short term job. Secondly, using labour brokers - TES or temporary employment services - has also become more restrictive and difficult as a result of the latest labour law amendments.

Ivan Israelstam

Suspension is an action usually associated with the disciplinary procedures - sometimes before a hearing and sometimes as a sanction. However, there are other circumstances where suspension may be used. But are these suspensions on full pay and for what period can an employee be suspended? This week Ivan Israelstam explains the options and the potential pitfalls.

Ivan Israelstam

When employee behaviour is dishonest or at a similarly serious level that dismissal appears to be the appropriate response, it is particularly important that employers follow the correct disciplinary procedures. Part of those procedures is to ensure that there is a suitably qualified, unbiased chairperson to hear the matter fairly and in an unbiased manner. Ivan Israelstam provides some examples.


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