dismissal

"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.

When an employer is faced with an employee who fails to perform, the Labour Relations Act sets out specific requirements to be fulfilled before the employer contemplates dismissal. These requirements are followed by a fair procedure. This week Ivan Israelstam explains what the requirements are, and how poor performance should be handled. 

A disruptive employee can influence company performance, reduce productivity, and upset fellow employees to the extent that they may leave. It is important for employers not to ignore an incompatibiiy problem, and before dismissing an employee - ensure that evidence has been obtained to confirm that the employee is the source of the incompatibility. Ivan Israelstam quotes a number of cases that illustrate how employers have gone wrong in the past. 

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. 

Employers do sometimes find it difficult to prove at CCMA hearings the allegations they make against employees, who have been dismissed. One of the most common forms of evidence used in modern workplaces is camera videotape evidence.  However, this is not without problems. This week Ivan Israelstam quotes cases where the camera videotape type evidence has been challenged.  

This week Ivan Israelstam gives examples of fair discrimination.  Then explains how one employer was able to successfully defend against an allegation of unfair discrimination, and another employer could not defend against a dismissal that was found to be an automatically unfair dismissal. 

The sale of a business - or part of a business - may take place when a company is in financial difficulty, and wanting to restructure to avoid going into liquidation.  The new owner may want to reduce the staff complement - but the Labour Relations Act makes any retrenchment as a result of a transfer of a going concern an unfair dismissal. Who is responsible - the old or new employer? Ivan Israelstam explains further.

Employers may be relieved when an employee confesses to some misdemeanour, and assume that a dismissal will then automatically be justified.  This week Ivan Isrealstam explains why this is not so. There are a number of reasons why an employer cannot simply go ahead and dismiss the employee. 

This week Ivan Israelstam provides examples from the Commission for Conciliation Mediation and Arbitrator and the Labour Court to explain the complexity of decisions on what may be considered as an unfair labour practice.  

This week Ivan Israelstam explains how the word "unfair" is interpreted in labour law, and why it is so important for employers to understand what is regarded as unfair and what is automatically unfair. This is particularly important for employers to understand in relation to reasons for dismissal.

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