dismissal

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.

As the economy fails to grow and consumers struggle to make ends meet, businesses may suffer a loss of sales and profits.  May the employer automatically retrench workers? This week Ivan Israelstam examines the requirements upon an employer before they consider retrenching employees.    

Employers sometimes know that misconduct has definitely taken place, but the employer can’t pinpoint the actual culprit/s. The temptation is to dismiss every employee, who may have possibly been involved. This week ivan Israelstam deals with cases where this has happened.

Employers need to make sure that they understand the implications of receiving a Con-Arb notice from the Commission for Conciliation Mediation and Arbitration (CCMA).  This week Ivan Israelstam explains what the ConArb involves and how employers need to prepare.

This week Ivan Israelstam explains that employees have many rights, but there is also a fiduciary duty towards the employer.  He explains what this means, and why there is a stronger duty to be trustworthy upon the more senior the employee.  

 

Good practices during recruitment of new employees are critical to business success. One key issue is to obtain relevant documentary evidence of qualifications and the employer has the responsibility to ensure that the documents, such as qualifications and licences are genuine. Obtaining a history of the potential employee's past work experience may be more difficult and what will be considered relevant to the position may not always be clear.  This week Ivan Israelstam explains the complexities in establishing what is relevant. 

Employers generally are now respecting an employee's right to a disciplinary hearing before deciding upon dismissal.  The question is: who chairs the disciplinary hearing, that is: who is the presiding officer of the disciplinary hearing? How important is it that the presiding officer has not been involved in the events leading up to the disciplinary hearing? This week Ivan Israelstam answers these questions.

Employers do complete employment contracts before the person commences work, but does that make the person an employee? What are the implications is the employer decides to terminate the contract even before the person has commenced work? This week Ivan Israestam deals with these interesting labour law questions. 

Retrenchment consultations are potentially emotional and difficult discussions. This week Ivan Israelstam explains whether employees involved in a retrenchment consultation have a right to bring in a lawyer or other external labour law representative. 

Employers may suspend an employee in a number of circumstances, some are reasonable and fair, but others may simply be as a result of an employer trying to make life difficult for an employee so that the employee will resign.  This week Ivan Israelstam explains all the various circumstances of suspensions.

This week Ivan Israelstam explains potential forms of disruption and indiscipline at the workplace - what he refers to as workplace rebellions. The article goes on to consider when dismissal is a fair response by the employer, quoting cases to show how the CCMA will respond to allegations of unfair dismissal. 

Following last week's article on the definition and legal consequences of entrapment, this week Ivan Israelstam explains other illegal and unethical practices, which may be used at disciplinary hearings. Under pressure to achieve a dismissal, supervisors and managers may be tempted to use these practices.  However, as Ivan explains they are highly likely to backfire on management.   

What exactly is entrapment and is it legal for an employer to entrap an employee? What is the difference between entrapment, and trapping? Employers who are not trained lawyers may well find this all very difficult to understand and end up on the wrong side of a CCMA decision. This week Ivan Israelstam explains what an employer needs to do in order to prove that they have acted legally and fairly in a dismissal.

In common law employers and employees have the obligation to treat each other fairly and within the law. What does that mean? This week Ivan Israelstam explains very clearly what the obligations are for both employers and employees. The CCMA arbitrators and the Labour Court and Labour Appeal Court judges will not take kindly to parties to do bring forward an accurate account of events, or are shown to have not met their obligations. 

When an employee is intoxicated by alcohol and is driving or using equipment, this can potentially constitute a danger to themselves or to others. This week Ivan Israelstam quotes some cases, which indicate that the CCMA arbitrators are not necessarily consistent in their decisions So how should employers respond?

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.

  

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 explains the concept of double jeopardy, and why it is important that employers understand what it is, and how to avoid actions that count as double jeopardy.  

Where the job itself is permanent it is dangerous to employ staff on anything but a permanent contract. This is firstly because the Labour Relations Act provides for fixed-term employees to have a reasonable expectation of renewal of their contracts at the expiry date. Secondly, case law has gradually narrowed those circumstances under which an employment agreement can legitimately be accepted as a limited duration contract.

Ivan Israelstam explains the many ways that communication can go astray between the CCMA and the employer - and the very expensive consequences of the mis-communication.  This week Ivan explains why it is essential for business owners and executives to take labour law seriously and ensure that all management and supervisory levels understand how to manage employees within the law. 

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.  

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