dismissal

Last week, Ivan Israelstam explained the personal reasons employers may have to utilise probation to dismiss employees. This week, Ivan describes the alternative action the employers may take - instead of dismissing the employee, the employee is demoted.  This action, equally as with the dismissals, may run into criticism at the Commission for Conciliation Moderation and Arbitration (CCMA). 

This week Ivan Israelstam explains why "James Bond" employers, who use probation to simply dismiss employees - whether they have broken rules, or just simply because they are not popular with the boss, will be tripped up at the Commission for Conciliation Mediation and Arbitration (CCMA).

The retrenchment of a senior management employee will always be a difficult exercise, and all the more reason why the employer should ensure compliance with the Labour Relations Act and Codes of Good Practice, and that the correct procedures are followed. Ivan Israelstam quotes a case where the employer tried to both retrench and disciplline a senior employee.

Disciplinary hearings are often held in an emotional environmental, which can lead to decisions being taken - without consideration of all the circumstances.  This week Ivan Israelstam explains exactly what are extenuating circumstances, and answers the question - how important are they to the dismissal decision? 

What is insubordination, and what does it mean "to obey a reasonable instruction"? This week Ivan Israelstam explains what happened in a case where refusal to obey a reasonable instruction - was the correct response, and the dismissal was unfair.

For employers, any form of workplace disruption causes concern and frustration. Ivan Israelstam explains why it is important that employers do not respond emotionally to such disruptions, and only respond once their actions have been carefully considered.

This article explains the challenges labour brokers experience, when the employer refuses to accept the person, who has been placed at their site.

Ivan Israelstam

Although there is a formal Code of Good Practice for Dismissal it is also possible to have a less formal approach to disciplinary procedures in certain circumstances.

Employers and trade union officials, who present matters at the CCMA, will be interested in the list of powers, which Ivan Israelstam has listed.  Questions are answered, such as: Is the CCMA Commissioner empowered to overturn a dismissal decision?  

This week, Ivan Israelstam lays out the procedures for an arbitration hearing, and the explains why it is critical to present evidence to support your case. 

"Hearing chairpersons should not count their chickens before they hatch" is good advice. This week Ivan Israelstam, how - and why - some employers try to manipulate the disciplinary process, and the potential consequences if this advice is not heeded. 

This week Ivan Istraelstam explains all of the dispute resolution bodies, and the fees and costs for an employer who is found to have unfairly dismissed an employee.

As with all disciplines, labour law has its own terminology. What does "hiding behind the corporate veil" mean? Ivan Israelstam explains how employers sometimes seek to hide the true nature of a business practice, and how the CCMA, bargaining councils, and labour courts will respond.   

There is a national strategy to improve skills and knowledge, to support people to find employment, and reduce unemployment. Learning programmes to achieve this, include apprenticeships, learnerships, graduate work programmes, in-service experience as part of a qualification. The people on these programmes are required to have an employment contract for the duration of the programme. What are the implications of that "employment" contract?

This week Ivan Israelstam explains the process an exployer should adopt if a retrenchment of employees is contemplated. He explains what the steps are to be followed, to ensure that the employer complies with the requirements of the Labour Relations Act for what is an operational requirements dismissal.

Employees may be hired on a variety of different forms of contract. This week Ivan Israelstam explains what the implications of the various contracts are, when employers are not happy with employee performance and seek to terminate the contract. 

When is a dismissal justified - and what circumstances need to be taken into account before an employer decides to dismiss an employee? Various courts have confirmed that the circumstances do matter. So it is not possible to simply state X action requires dismissal. Ivan Israelstam provides examples to illustrate how an employer should consider all the circumstances before coming to a decision.  

The key document for employers to follow when taking disciplinary action, is the Code of Good Practice: Dismissal (The Code), contained in Schedule 8 of the Labour Relations Act (LRA). This should be read in conjunction with the employer's own Disciplinary Procedure. This week Ivan Israelstam uses cases to explain the difficulties that arise should an employee request to be represented by a lawyer at the internal disciplinary enquiry. 

There are a number of reasons why employers might suspend an employee. This week Ivan Israelstam deals with these questions: What are the reasons for suspension? What are the risks associated with each reason?

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.  

This week Ivan Israelstam answers the question: what is workplace fraud? Then he goes explain what employers need to be able to prove to sustain a case, when there is a dismissal dispute lodged at the CCMA.  

This week Ivan provides examples from decided cases of what would not be sufficient to justify dismissal, or make the continued employment relationship intolerable. This is compared with how the Labour Appeal Court has approached allegations of racism, or racist language as:  “an anathema to sound industrial relations and a severe and degrading attack on the dignity of the employees in question”. 

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.

What is a conflict of interest, and may an employer dismiss an employee if there is a conflict of interest? This week Ivan Israelstam explains exactly what is required before a dismissal for conflict of interest will be sustainable at the CCMA. 

Don’t underestimate the power of trade unions. That is the advice of Ivan Israelstam. How should shop stewards be treated? Is it possible to discipline shop stewards? Are there additional requirements before disciplining a shop steward? Is it possible to dismiss a shop steward? This week Ivan explains the rights and responsibilities of shop stewards, and uses an example of a shop steward dismissal he defended successfully at CCMA.

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