dismissal

Ivan Israelstam

This week Ivan Israelstam explains: what may be considered a mitigating factor, why it is important, and how the employer needs to take these factors into account. He explains why it is important that chairpersons of disciplinary enquiries are suitably trained to meet these challenges - what mitigating factors to consider, and how to give them due weight.

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

Employers may believe that referring to any dishonest behaviour as "fraud" will help them in achieving a dismissal. However, as Ivan Israelstam explains "fraud" has a very specific meaning, and in order to sustain a dismissal decision at the CCMA, the employer needs to understand what is involved, and how to present the evidence to support this allegation.

Ivan Israelstam

As ivan Israelstam demonstrates this week, there are many reasons why spiteful actions arise in workplaces. But when emotions and egos come into play, the results can be both expensive and destructive for the business. To avoid these dangers you may want to read on and follow Ivan's advice.

Ivan Israelstam

What makes an employment relationship intolerable, and why is this important anyway? Those are the questions that Ivan Israelstam addresses this week. He explains why it is important that an employer understands what this means, and what other factors to take into account before proceeding with a dismissal decision.

Ivan Israelstam

This week Ivan Israelstam explains the differences between a retrenchment (an operational requirements dismissal) and a mutually agreed termination of an employment contract. The procedures to be followed are different and the nature of the document that concludes the ending of the employment contract are significantly different. Mixing up these two types of agreement can be expensive.

Ivan Israelstam

In the mid 1990s the old labour legislation was repealed and was replaced by our current Labour Relations Act (LRA) negotiated between government, employers and trade unions. Due to the fact that parties had substantially different agendas they were often unable to agree on a number of important details of law which were therefore omitted from the LRA. Some detail as to the intention of the law is provided in the form of codes of good practice and other gaps may be filled by case law. Ivan Israelstam explains further.

Ivan Israelstam

Employees, just like most other people, tend to look after their own interests first. They are, in most cases, working to satisfy their own needs, whether such needs are financial, self actualising or based on other motives. For this reason common law, while recognising the employee’s right to look after his/her own interests, balances out this right with the employee’s obligation to ensure that the satisfaction of his/her interests does not conflict with those of the employer.

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 level of work performance of employees is a crucial factor in the advancement of South Africa’s economy and in the success of each enterprise. This is one reason that the law does allow employers to dismiss employees who fail to perform according to performance standards. However, the same legislation lays down very stringent tests to establish whether dismissal for poor performance is appropriate in each specific instance.

Ivan Israelstam

Employees who are seen as trouble-makers, eccentrics, disruptive, disagreeable, pushy, non-compliant, independent or who merely refuse to ‘suck up’ to the boss often find themselves on the wrong side of the exit door.

Ivan Israelstam

The term ‘shop steward’ is a colloquial one and refers to the employee elected as the workplace representative by fellow employees who belong to the relevant trade union. The Labour Relations Act (LRA) officially refers to shop stewards as “trade union representatives”, and section 14 of the LRA gives these representatives (shop stewards) a number of special rights.

Ivan Israelstam

One of the most difficult situations for companies to handle is an arbitration award that requires reinstatement or re-employment of previously dismissed employees. Apart from implications for the management of the rest of the workforce, the requirement not to be seen to victimise the employee/s is critical. Ivan Israelstam explains.

Ivan Israelstam

Employers ask whether a disciplinary code is necessary in terms of labour law. This week Ivan Israelstam explains why he believes that a disciplinary code is a valuable tool for employers.

Ivan Israelstam

The precise nature of the ownership of companies can sometimes be difficult to discern. But employers should be under no illusion that if they attempt to avoid labour law obligations by creating complex ownership schemes, the CCMA and the labour courts will devote time and attention to "unveiling" the true nature of the ownership and the employer obligation. In this manner, more than one company may become jointly and severally responsible for the labour law obligations. Ivan Israelstam provides examples of how this may happen.

Ivan Israelstam

Employees and union officials sometimes allege that an employer is trying to "work an employee out", that is making life so uncomfortable that the employee will choose to leave and find work elsewhere. However, in South Africa with such extremely high levels of unemployment, alternative jobs are not easy to come by. As a result employees will remain with the company and put up with the unfair treatment - or alternatively, resign and allege that they had no alternative course of action - that the employer effectively caused the termination. Ivan Israelstam explains the test to prove such an allegation.

Ivan Israelstam

The South African Constitution and the Employment Equity Act are very clear on the grounds that may give rise to unfair discrimination. Not all discrimination is unfair. Employers constantly make choices, for example: on who to appoint, who to promote, who qualifies for a company car, and many similar decisions. It is the fairness and objective grounds upon which the decisions are based that matters. Ivan Israelstam explains further what is required of an employer.

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.

Ivan Israelstam

Victimisation is an allegation made by employees sometimes under the Labour Relations Act and sometimes under the Employment Equity Act. Ivan Israelstam explains various acts that are classified as victimisation, but also points out gaps in the laws. He advises employers to proceed with caution and not think that they have a free hand in their behaviour with employees.

Employers who hold senior positions in multi-national and national organisations may hold an arrogant belief that the CCMA Commissioner will believe their testimony against that of a junior employee. Ivan Israelstam explains why this approach could lead to the company losing the arbitration.

Human resource practitioners will be aware of the saying that one employs for qualifications and dismisses for behaviour. Individuals who have been model employees may suddenly start behaving in uncharacteristic ways, brought on by personal relationship problems, trauma, or forms of physical or mental illness. No matter how frustrating the behaviour may be for the employer Ivan Israelstam explains why it is critical that employers behave correctly.

Ivan Israelstam

It is often very difficult for employers to provide sufficient proof to the CCMA or bargaining council commissioner that the employee is guilty of the misconduct for which he was dismissed. The employer has the full onus (legal responsibility) of proving that the dismissal is fair. Employers often believe that video or camera footage will provide sufficient evidence for a dismissal. This week Ivan Israelstam explains the complexities involved in using this technology in disciplinary hearings.

Ivan Israelstam

While retrenchments may be considered necessary for a company, it is critical that employers understand the rights of employees in these circumstances, and the appropriate procedures to adopt to ensure that these rights are protected. Ivan Israelstam explains the three factors at the very heart of protecting the rights of employees.

Not all discrimination is unfair. Choosing one employee from a group of applicants is making a discriminating choice between the applicants. As long as there is a valid reason for the choice, for example: in line with an employment equity plan, or on objective qualification requirements, the choice will not be unfair. However, if the decision is not made upon objective grounds, and a court makes a finding of unfair discrimination against your company, this can potentially have serious implications. Ivan Israelstam explains how this may happen and the financial consequences of such a finding.

Newly appointed supervisors and managers do sometimes find difficulty in understanding what is meant by a "fair labour practice". As Ivan Israelstam explains in this article, it is not quite as simple to identify what is unfair as it is to identify what is illegal in criminal law. This article sets out very plainly the questions managers and supervisors should ask themselves to determine whether their actions will be seen as "fair" - or unfair

Pages

Subscribe to dismissal