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While it can be extremely difficult to not immediately sign on the dotted line after getting your job offer, the importance of reading your contract thoroughly and understanding the terms of your contract cannot be understated.

 


The law makes it essential for employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

 


There are many different reasons that employers lose at arbitration despite their confidence that they would win. Some of those reasons include:


Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of how the law allows them to use such warnings. In labour law the main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve.

 

 

 


What rights do employers have to discipline employees for misconduct perpetrated outside the workplace? While employers have very few rights under the Labour Relations Act (LRA) they do have the right to discipline and even to dismiss employees for work related misconduct. However, a dismissal will only be upheld by the CCMA, bargaining council or Labour Court where:


Whether employers, who issue provisional ultimatums to employees who participate in unprotected strike action, may subsequently dismiss employees who comply with the ultimatum. 


Disciplinary warnings are given with a view to correcting employee behaviour. But, what is the difference if the employer policy says that warnings have an expiry period and must be removed from files, or alternatively, the warning expires but if kept on record. Will this be relevant? Just one of the questions on warnings that Ivan Israelstam addresses this week.  


When an employer suspects that a group of employees may be cooperating in some way - in dishonest acts to defraud the company financially, or remove property - there is the suspicion of collective guilt. This week Ivan Israelstam examines how the Commission for Conciliation Mediation and Arbitration (CCMA) and labour courts have viewed this kind of collective behaviour. Ivan uses cases won and lost to demonstrate how crucial it is to consider the circumstances of the particular case. A Labour Appeal Court case shows what the employer needs to successfully prove such a case.


What is "whistle-blowing" , and when is it protected? This week Ivan Israelstam explains what legislation protects employees: not just the Protected Disclosures Act, but also the Labour Relations Act. Then Ivan  looks at cases, where the employee has disclosed information, and explains how the Labour Court and the Labour Appeal Court have dealt with such cases. 


 Labour law provides scant protection for employers. That is the opinion of Ivan Israelstam. This week Ivan explains why he holds that opinion, and gives advice to employers on how he believes they should react, and protect their businesses going forward.


Very few workplace issues elicit as firmly held views or fears as the topic of constructive dismissal. Whether it is a manager, fearful of doing something wrong and at risk of an employee lodging the dreadful claim of constructive dismissal, or Harvey Spectre wannabes cascading their views on the legal impact of such a claim: say "constructive dismissal" and you have everyone's attention.


This week, Ivan Israelstam starts the 2021 year with a question on disciplinary hearing procedures. What is hearsay evidence? What is the consequence of using hearsay evidence? Is hearsay evidence ever acceptable?  


This week, Ivan Israelstam sets out what the term "dereliction of duty" means. He explains why it is important for management to use the term correctly, neither to come on too strong against an employee, when other factors could explain events, nor to be too soft when the allegation of dereliction of duty would be correct.


This week Ivan Israelstam explains how the Labour Relations Act (LRA) affects labour brokers. The LRA refers to a Temporary Employment Service (TES) - that is a labour broker. Therefore, Ivan explains exactly how this can affect the labour broker adversely, when they try to dismiss one of their employees. 


This week Ivan Israelstam explains the history of a case, which went all the way through to the Constitutional Court. The case concerned employers' rights over dismissal decisions. Ivan explains the final outcome.


Ivan Israelstam illustrates with examples, why it is necessary for employers to ensure that incidents requiring disciplinary hearings, are fully investigated; and the evidence is collated and prepared ready for presentation. Failure to complete the investigation, the preparation, and the presentation steps is highly likely to lead to dismissed employees being reinstated by the Commission for Conciliation Mediation and Arbitration. 


What is double jeopardy, how does it arise, and what are the consequences for employers? This week Ivan Israelstam uses cases to explain what double jeopardy is, and how employers get themselves into some very expensive consequences, when dismissing employees in these circumstances.


This week Ivan Israelstam explains why employers get into - expensive - difficulties at the Commission for Conciliation Mediation and Arbitration, or bargaining councils by incorrectly using fixed-term contracts. Why does this happen, and what should employers take into account to ensure that they can defend their actions if a dispute is lodged against them?


The Labour Court has defined 3 important characteristics of  incompatibility at the workplace. This week Ivan Israelstam expands upon each of the 3 characteristics, and explains what should be taken into account before dismissing an employee, and how incompatibility relates to incapacity.  


 Dismissing employees who have been arrested can be dangerous. That is the view of Ivan Israelstam, who this week explains why he makes that statement. He provides examples from the Commission for Conciliation Mediation and Abitration (CCMA), bargaining council, Labour Court and Labour Appeal Court, so that employers can see exactly how they should interpret their obligations.

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