disciplinary procedures

When may an employee reasonably refuse an instruction? When will a refusal to carry out an instruction be insubordination? Important questions for an employer to be clear about - to avoid launching into disciplinary action that will be unfair.

Employers do become emotionally involved in some of the serious disciplinary cases at the workplace. So as Ivan Israelstam points out, it is very important to have a trained person to chair disciplinary hearings. It is important to understand the requirements of Schedule 8, which requires a two step process - first to prove what happened, and then to consider all circumstances before taking the decision to dismiss. That is the requirement of considering mitigating factors.  

There are a number of reasons why an employer might find a mutually agreed termination more time effective or efficient than other disciplinary procedures.  However, the employer should be very careful not to confuse a retrenchment situation - with very specific procedural requirements - and a genuine mutually agreed termination of the employment relationship. Importantly, such an end of the contract is not legally classed as a dismissal. Ivan Israelstam explains.

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.   

The word prejudice is used a great deal in the media, but there are certain legal implications of prejudice, prejudging, and implications for bias in disciplinary proceedings. Therefore, it is very important for employers to understand the dangers in not paying attention to these legal concepts. This week Ivan Israelstam explains the different meanings of these words, and how they are important for disciplinary proceedings, and for conducting matters at the Commission for Conciliation Mediation and Arbitration (CCMA).

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 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.  

Leadership skills and organisational ability are required by a union organiser as much as a supervisor or manager. Employer development and promotion policies and practices are likely then to identify someone who is a union member for promotion to a managerial or supervisory position. This week Ivan Israelstam quotes from a Labour Court case, which covers the employee rights and how the employer should handle the apparent conflict of interest.

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.

Activities that may be classified as misconduct are sometimes provoked, causing raised emotions, which sometimes result in retaliatory action. However, whatever happens a senior manager needs to remain in control of their emotions at all times, and to ensure that only disciplinary actions consistent with the Code of Good Practice: Dismissal (Schedule 8) are taken against employees. This week Ivan Israelstam explains why resorting to biting a junior employee is inadvisable.

Employers may view probation as a means of easily terminating employees, who don't quite "fit in" or don't meet company standards. There are clearly set out requirements for employers to comply with before dismissing a probationary employee. This week Ivan Israelstam explains what happens when the James Bond type employer meets the CCMA commissioner.

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.

Not all employees behave perfectly every day. Employers are required to deal with employees that may be disruptive for a range of personal or work-related reasons. It is important for employers to remain calm at all time, not to overreact, and to follow their disciplinary procedure at all times. This week Ivan Israelstam explains further why this advice is so important.

When may an employer decide that dismissal is the correct sanction, and when may a CCMA Commissioner overturn that dismissal decision?. This week Ivan Israelstam explains the rights of CCMA Commissioners. Ivan also points out how the courts have confirmed the extent of the Commissioner powers, and how and when a Commissioner may override an employer decision to dismiss an employee.

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.

Ivan Israelstam

Employers should be aware that allowing senior management to overrule junior management, who are more knowledgeable and experienced in disciplinary procedures may be risky. This week in his second article of the series, Ivan Israelstam explains what double jeopardy is, and how employers who fail to understand double jeopardy, may make very costly mistakes.

Ivan Israelstam

The trade union movement in South Africa is extremely powerful. This is not only because of the high proportion of unionised employees and because of the extremely strong legislation supporting unionisation but also because of the political alliance between the biggest union confederation and the ruling party. This week Ivan Israelstam advises employers not to underestimate the power of trade unions.

Ivan Israelstam

The media often features stories of bribery and corruption. Employers often simply assume - or hope - that these activities happen elsewhere. However, employers would be well served to follow Ivan Israelstam's guidance on what constitutes these activities - how they are defined, and how they should be managed professionally.

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