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.
When should the chairperson of an internal disciplinary hearing consider allowing a lawyer to represent the employee facing the disciplinary hearing? Ivan Israelstam explains how the courts have considered this question, and what employers should take into account in order to respond to such requests.
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.
This week Ivan Israelstam covers disciplinary hearings. What should an employer take into account when an employee does not attend a disciplinary hearing, and what does the law say about employees who deliberately try to delay the disciplinary hearing from proceeding?
In dismissal or other disputes, when employers believe that the employee is not telling the truth or misrepresenting the facts related to the case, it is very important that employers take it very seriously and carefully prepare their own case, so that the Commissioner is able to reach the correct conclusion. Ivan Israelstam explains further.
The circumstances of every disciplinary enquiry are different - as are the personal circumstances of the employee involved. Therefore before deciding upon a dismissal decision, the chairperson of a disciplinary enquiry needs to take into account a range of factors in addition to what occurred. Ivan Israelstam explains how the CCMA and bargaining councils have given guidance on how extenuating circumstances should be taken into account.
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.
This week Ivan Israelstam explains: what may be considered a mitigating factor, why it is important, and how the employer needs to take these factors into account. He explains why it is important that chairpersons of disciplinary enquiries are suitably trained to meet these challenges - what mitigating factors to consider, and how to give them due weight.
Employers may believe that referring to any dishonest behaviour as "fraud" will help them in achieving a dismissal. However, as Ivan Israelstam explains "fraud" has a very specific meaning, and in order to sustain a dismissal decision at the CCMA, the employer needs to understand what is involved, and how to present the evidence to support this allegation.
Schedule 8 Code of Good Practice: Dismissal indicates that the hearing to determine whether an employee should be dismissed does not need to be formal. However, Ivan Israelstam argues that in order to prove at the CCMA that the employer did respect the employer's rights, there needs to be formal documentation.
It is often very difficult for employers to provide sufficient proof to the CCMA or bargaining council commissioner that the employee is guilty of the misconduct for which he was dismissed. The employer has the full onus (legal responsibility) of proving that the dismissal is fair. Employers often believe that video or camera footage will provide sufficient evidence for a dismissal. This week Ivan Israelstam explains the complexities involved in using this technology in disciplinary hearings.
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