labour court

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. 

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. 

Are there different requirements for disciplinary action against a shop steward, and if so - what are the differences? That is the question Ivan Israelstam addresses this week. Essentially not all infractions by a shop steward would amount to gross misconduct. One example is the shop steward's position during negotiations - in that forum the shop steward addresses management as an equal. So using strong terms to reject management's proposal would not be insubordination. Ivan quotes cases to explain the differences between dismissing a shop steward and dismissing an employee.

Businesses - or part of a business - are taken over by new concerns, or required services are outsourced. Then the service provider may be replaced by a second service provider. When do these business transfers fall under section 197 of the Labour Relations Act? Ivan Israelstam explains why it is so important to understand what business transfers are defined as transfers as a going concern.  

Not only employers, but also union officials and employees sometimes wonder what the words in the employment legislation mean. This is also seen in differences between the Labour Court and the CCMA and bargaining council arbitrators. This week Ivan provides examples of how the different acts aren't always clear.  

All employers need to be aware of RICA. This week Ivan Israelstam explains what RICA is, and what the implications are for employers who want to intercept an employee's emails, or listen to phone calls. What are the implications if an employer simply goes ahead without understanding the legal constraints?

When an employer dismisses an employee it is vitally important that the decision to dismiss is based upon solid evidence that is directly related to the reason to dismiss.  This week Ivan Israelstam explains what can go wrong in a CCMA Arbitration, or Labour Court review if the evidence is not relevant to the dismissal decision - or the CCMA arbitrator has failed to consider the relevant evidence. 

Sometimes employees do come in to work and declare that they are resigning with immediate effect. This can be for a number of personal reasons, irritation with management, and so on.  This week Ivan Israelstam explains the potential implications for employers when this occurs.

When employers are faced with financial challenges, and contemplate retrenching employees, it is critical for the employer to first consult on alternatives to avoid retrenchment. Ivan Israelstam explains what is required, and how employers should consider alternatives. If the employee makes proposals, which the employer does not accept, it is necessary that the employer provides a response on why the alternative proposed is not a viable option.    

This week Ivan Israelstam gives examples of fair discrimination.  Then explains how one employer was able to successfully defend against an allegation of unfair discrimination, and another employer could not defend against a dismissal that was found to be an automatically unfair dismissal. 

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.

This week Ivan Israelstam provides examples from the Commission for Conciliation Mediation and Arbitrator and the Labour Court to explain the complexity of decisions on what may be considered as an unfair labour practice.  

This week Ivan Israelstam looks at the Labour Relations and Employment Equity Acts to find the definition of workplace "victimisation". He answers a number of questions: What does this term mean? What actions by an employer could constitute victimisation? What are the implications for a constructive dismissal claim?

Employers do complete employment contracts before the person commences work, but does that make the person an employee? What are the implications is the employer decides to terminate the contract even before the person has commenced work? This week Ivan Israestam deals with these interesting labour law questions. 

In common law employers and employees have the obligation to treat each other fairly and within the law. What does that mean? This week Ivan Israelstam explains very clearly what the obligations are for both employers and employees. The CCMA arbitrators and the Labour Court and Labour Appeal Court judges will not take kindly to parties to do bring forward an accurate account of events, or are shown to have not met their obligations. 

"Don't miss the arbitration hearing! It may well continue without you." Good advice from Ivan Israelstam this week. But what should you do if you didn't receive the notice of the arbitration hearing? Ivan explains how to proceed with a rescission application.   

At some time or other, most employers are faced with the decision on whether dishonesty by an employee warrants dismissal. This week Ivan Israelstam explains what the Code of Good Practice Dismissal requires employers to take into account. Ivan also explains the importance of mitigating factors that need to be taken into account before an employer makes the decision to dismiss.

  

This week Ivan Israelstam explains the concept of double jeopardy, and why it is important that employers understand what it is, and how to avoid actions that count as double jeopardy.  

This week Ivan Israelstam expreses the opinion that the "conflicting court decisions on going concerns mean that we don’t know if we are coming or going".  Read on to see why Ivan holds this opinion. Find our what is a transfer as a going concern, and why this definition is so important to contracting companies. 

Ivan Israelstam explains the many ways that communication can go astray between the CCMA and the employer - and the very expensive consequences of the mis-communication.  This week Ivan explains why it is essential for business owners and executives to take labour law seriously and ensure that all management and supervisory levels understand how to manage employees within the law. 

This week Ivan Israelstam uses a dismissal case that went from CCMA, to Labour Court, and finally to the Labour Appeal Court, but the dismissed employee was still re-instated - to explain the importance of handling investigations and disciplinary matters competently, and to ensure that any procedures at CCMA or courts are well prepared.  Above all to avoid emotion.  

This week Ivan Israelstam explains why it is necessary to ensure that no names with racial meanings are used at the workplace. Also why it is important that employers investigate any allegations of racism at the workplace. Decisions of the Labour Court and a Bargaining Council provide good guidance.

This week Ivan Israelstam pays attention to the use of labour brokers and temporary employment service agencies (TES). There are many reasons why employers make this decision on how to fill their company needs. But are there risks to using these services, instead of employing people on the company payroll as permanent employees? Read on for further details.  

What should an employer do if they believe that a Commision for Conciliation Mediation and Arbitration (CCMA) arbitrator has behaved inappropriately, or failed to take into account all aspects of the case, or otherwise misdirected themselves and come to an incorrect conclusion? Ivan Israelstam uses a number of cases to provide examples of how employers have taken up challenges to the the decisions of CCMA Commissioners in the Labour Court.  

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