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.
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.
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.
When employers include disciplinary policy, procedures and codes in employment contracts, it is especially important that the employer follow their own documented procedures. Failure to follow their own procedures will call into question the status of the dismissal of employees. In this case Ivan Israelstam details how the Labour Court judge analysed the failures of both the employer, and the CCMA arbitrator, who supported the dismissal.
Employers would be unwise to assume that just because an employee already has a final written warning on file, that the employer can simply go ahead and process a dismissal. This week Ivan Isralstam explains the complexities to be taken into account - such as the validity of the final written warning.
Many employers think that by not putting anything in writing they are protecting themselves. On the contrary, as Ivan Israelstam explains this week, they are putting themselves in a very vulnerable position, where they will not be able to protect themselves when a dismissed employee claims that the company did not have any rules and standards, and allege that no procedure was followed in their dismissal.
The service that labour brokers provide is to find and to place workers with a business. But what happens when there is an incident and the business no longer wants to accept the worker who has been placed with them? Ivan Israelstam explains the findings of a case where exactly this scenario occurred.
What are the implications of saying that the disciplinary process does not mean to be a formal process? That is the question addressed this week by Ivan Israelstam. The key point is how will the employer prove that the procedure adopted was fair, and that the employee received a fair hearing if there is no documentary trail?
Before embarking on disciplinary procedures in serious cases of misconduct, employers often question whether the action is enough to warrant dismissal. One of the key factors in this decision is whether the trust relationship has been broken. This week Ivan Israelstam explains why this factor is important.
The term ‘shop steward’ is a colloquial one and refers to the employee elected as the workplace representative by fellow employees who belong to the relevant trade union. The Labour Relations Act (LRA) officially refers to shop stewards as “trade union representatives”, and section 14 of the LRA gives these representatives (shop stewards) a number of special rights.
Employees and union officials sometimes allege that an employer is trying to "work an employee out", that is making life so uncomfortable that the employee will choose to leave and find work elsewhere. However, in South Africa with such extremely high levels of unemployment, alternative jobs are not easy to come by. As a result employees will remain with the company and put up with the unfair treatment - or alternatively, resign and allege that they had no alternative course of action - that the employer effectively caused the termination. Ivan Israelstam explains the test to prove such an allegation.
Newly appointed supervisors and managers do sometimes find difficulty in understanding what is meant by a "fair labour practice". As Ivan Israelstam explains in this article, it is not quite as simple to identify what is unfair as it is to identify what is illegal in criminal law. This article sets out very plainly the questions managers and supervisors should ask themselves to determine whether their actions will be seen as "fair" - or unfair