labour appeal court

When business conditions change, employers may want to change the terms and conditions of employment of the employees. This week Ivan Israelstam explains what employers should not do in these circumstances. 

Over the last few decades, many companies have transferred parts of a business to another company, which continues to provide a service to the original company. Transfers of the employees takes place under Section 197 of the Labour Relations Act. If the company subsequently decides to cancel that arrangement and appoints another company to provide the service, do all of the employees move over again? Ivan explains the complexities and implications of this question.

You can be an employee before you start work! This week Ivan Israelstam explains that there gap in employent law. That is because neither the Labour Relations Act, nor Basic Conditions of Employment Act, nor the Employment Equity Act adequately cover this question. Ivan advises on the limitations in finding a way forward by relying upon the law of contract. So, Ivan explains how have the Labour Court, and Commission for Conciliation Mediation and Arbitration (CCMA) have responded - and the Labour Appeal Court has stepped in.

This week Ivan Istraelstam explains all of the dispute resolution bodies, and the fees and costs for an employer who is found to have unfairly dismissed an employee.

As with all disciplines, labour law has its own terminology. What does "hiding behind the corporate veil" mean? Ivan Israelstam explains how employers sometimes seek to hide the true nature of a business practice, and how the CCMA, bargaining councils, and labour courts will respond.   

Once a recruitment decision is made, the next step is to conclude an employment contract. Has employment started and does the new employee have rights from the date of signing the contract? What is the guidance of the labour courts? 

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. 

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 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”. 

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