dismissal

Employers may view probation as a means of easily terminating employees, who don't quite "fit in" or don't meet company standards. There are clearly set out requirements for employers to comply with before dismissing a probationary employee. This week Ivan Israelstam explains what happens when the James Bond type employer meets the CCMA commissioner.

Employers deal with a range of issues related to illness, for example: a genuinely ill employee who obtains a certificate from a bogus medical practitioner, or a traditional healer; or an employee who is not ill at all but obtains a fake medical certificate; or an employee who was ill but who extends the time given on a genuine certificate by altering the date - such as from a 1 to an 11 to obtain more days off. This week Ivan Israelstam explains the approach of CCMA Commissioners, and when disciplinary action may be taken.

The circumstances of every disciplinary enquiry are different - as are the personal circumstances of the employee involved. Therefore before deciding upon a dismissal decision, the chairperson of a disciplinary enquiry needs to take into account a range of factors in addition to what occurred. Ivan Israelstam explains how the CCMA and bargaining councils have given guidance on how extenuating circumstances should be taken into account.

An employer may think that by offering an employee a fixed term contract, they will be able to simply terminate the employee at the end of the contract. However, as Ivan Israelstam explains it depends upon the circumstances and company policy and practice. An employer may inadvertently give a temporary employee an expectation of further employment.

Insubordination is generally considered to be a serious offence. That is because it involves a refusal to obey a lawful and reasonable instruction of someone more senior in the hierarchy of the organisation. Refusal to follow the instruction may be seen as undermining the legitimate authority of a manager or supervisor. However this week Ivan Israelstam explains why it is important to consider the circumstances of each specific case before deciding that a dismissal is the appropriate response.

Not all employees behave perfectly every day. Employers are required to deal with employees that may be disruptive for a range of personal or work-related reasons. It is important for employers to remain calm at all time, not to overreact, and to follow their disciplinary procedure at all times. This week Ivan Israelstam explains further why this advice is so important.

The service that labour brokers provide is to find and to place workers with a business. But what happens when there is an incident and the business no longer wants to accept the worker who has been placed with them? Ivan Israelstam explains the findings of a case where exactly this scenario occurred.

Ivan Israelstam

This week Ivan Israelstam makes the case that labour law has become more restrictive upon employers. He explains that those who have used repeated fixed term contracts should no longer do that - only employ on a fixed term contract where there is a genuine short term job. Secondly, using labour brokers - TES or temporary employment services - has also become more restrictive and difficult as a result of the latest labour law amendments.

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.

Pages

Subscribe to dismissal