evidence

This week, Ivan Israelstam lays out the procedures for an arbitration hearing, and the explains why it is critical to present evidence to support your case. 

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.  

A disruptive employee can influence company performance, reduce productivity, and upset fellow employees to the extent that they may leave. It is important for employers not to ignore an incompatibiiy problem, and before dismissing an employee - ensure that evidence has been obtained to confirm that the employee is the source of the incompatibility. Ivan Israelstam quotes a number of cases that illustrate how employers have gone wrong in the past. 

Employers do sometimes find it difficult to prove at CCMA hearings the allegations they make against employees, who have been dismissed. One of the most common forms of evidence used in modern workplaces is camera videotape evidence.  However, this is not without problems. This week Ivan Israelstam quotes cases where the camera videotape type evidence has been challenged.  

Once a dispute has been lodged with the Commission for Conciliation Mediation and Arbitration (CCMA). there are different stages in the process to achieve resolution: conciliation, or con-arb - conciliation and arbitration, or arbitration. This week Ivan Israelstam explains how a pre-arbitration meeting may assist in speeding up resolution - but also points to the risk involved.

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.

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.

At a hearing arranged to discipline an employee both parties are entitled bring witnesses. These witnesses may come from inside or outside the workplace. The accused employee has the right to cross-examine the witnesses brought by the employer. Ivan Israelstam explains further.

What is the procedure for an arbitration? Must I take my witnesses along with me? Must I take the evidence - the documents/video recordings along to the CCMA with me? This week Ivan Israelstam makes clear exactly how the CCMA Commissioner will run the arbitration.  The following questions are answered: who speaks first, what do the participants present, what is the role of the witnesses, and how is the evidence presented?  

This week Ivan Israelstam provides a comprehensive explanation on what is required to investigate allegations of misconduct.  Ivan points out that ignoring incidents represents poor management, but before acting upon allegations of misconduct, it is important to conduct investigation into the all the relevant evidence of misconduct. 

In dismissal or other disputes, when employers believe that the employee is not telling the truth or misrepresenting the facts related to the case, it is very important that employers take it very seriously and carefully prepare their own case, so that the Commissioner is able to reach the correct conclusion. Ivan Israelstam explains further.

When employers include disciplinary policy, procedures and codes in employment contracts, it is especially important that the employer follow their own documented procedures. Failure to follow their own procedures will call into question the status of the dismissal of employees. In this case Ivan Israelstam details how the Labour Court judge analysed the failures of both the employer, and the CCMA arbitrator, who supported the dismissal.

This week Ivan Israelstam says: "without proof your case goes poof!" Arguing your case vehemently but without any substantiating evidence will not win your case - no matter how good your debating skills. What is required to win your case at a CCMA or bargaining council arbitration is evidence. Ivan explains that evidence may be presented via witnesses, documents, video, or recordings, and outlines the process at arbitration.

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

Section 186 of the Labour Relations Act (LRA) gives every employee the right not to be unfairly dismissed or to be subjected to unfair labour practices. Schedule 8 of the LRA provides that “The employee should be entitled to a reasonable time to prepare the response..”

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

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.

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