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dismissal

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. 

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