labour appeal court
When an employer suspects that a group of employees may be cooperating in some way - in dishonest acts to defraud the company financially, or remove property - there is the suspicion of collective guilt. This week Ivan Israelstam examines how the Commission for Conciliation Mediation and Arbitration (CCMA) and labour courts have viewed this kind of collective behaviour. Ivan uses cases won and lost to demonstrate how crucial it is to consider the circumstances of the particular case. A Labour Appeal Court case shows what the employer needs to successfully prove such a case.
This week Ivan Israelstam looks at fixed term contracts. What happens when an employer is consulting with employees on means to reduce the need for retrenchment? Usually, there are calls for voluntary retrenchment, then employees on casual or temporary contracts are considered first before permanent employees. BUT, Ivan cautions that may not be as simple as previously.
This week Ivan Israelstam explains the history of a case, which went all the way through to the Constitutional Court. The case concerned employers' rights over dismissal decisions. Ivan explains the final outcome.
Employees do sometimes lay frivolous and vexatious claims against employers at the CCMA. However, employees who do so may be ordered to pay the employer's legal costs. Even so, the employer should not give employees easy claims by failing to behave legally and responsively; and should definitely not underestimate the importance of preparing a response - even if the employees claims are spurious.
What is the value that employees potentially add to a business, or organisation? What should employers do in order to maximise that value? What are the potential financial implications if employers do not follow the guidelines that Ivan Israelstam lays out? Ivan explains further.
Absent employees do constitute a problem for employers, particularly is the absence is frequently repeated. The employer is required, however, to ensure that the rights of absent employees are adhered to - before dismissing them from the company. Ivan Israelstam explains that the courts have repeatedly confirmed - an employee cannot dismiss themselves. So before taking the decision to dismiss an employee, it is necessary for employers to do everything possible to make contact with the absent employee, and to advise them of their rights to a hearing.
This week Ivan Israelstam expresses his interpretation of Code of Good Conduct: Dismissal; that is: Schedule 8 of the Labour Relations Act (LRA). While cross examination is a constitutional right afforded to accused persons in courts of law, and extended to bargaining council and Commission for the Conciliation Mediation and Arbitration (CCMA) arbitrations, it is not clear whether this right extends to disciplinary hearings. Ivan explains his view of whether the Code provides for cross examination at disciplinary hearings.
Ivan Israelstam quotes from two cases of the same employer, with similar facts, but with different outcomes. Read carefully the facts that Ivan lays out to see how you would have acted in your company.
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.
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”.
This week, Ivan Israelstam uses examples of cases from the CCMA, the Labour Court and the Labour Appeal Court, to explain how decisions can be overturned from one court to the other. Ivan explains why it is important for employers to have an understanding of the pattern of decisions, to understand what is clearly decided, and what is still uncertain - in order to be able to identify what is relevant to their own cases.
The sale of a business - or part of a business - may take place when a company is in financial difficulty, and wanting to restructure to avoid going into liquidation. The new owner may want to reduce the staff complement - but the Labour Relations Act makes any retrenchment as a result of a transfer of a going concern an unfair dismissal. Who is responsible - the old or new employer? Ivan Israelstam explains further.
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