labour court

This week Ivan Israelstam explains why employers and managers are well-advised to ensure that they understand exactly what employee entitlements are under the Basic Conditions of Employment Act (BCEA). In addition, when hearing dismissal disputes under the Labour Relations Act (LRA), the CCMA may also allow employment conditions under the BCEA to be heard with the dismissal matter.

To avoid performance management procedures of instruction, counselling, training, and coaching some employers have utilised the "retrenchment pool" concept. Into this "pool" they place individuals they want to be rid of - for whatever arbitrary reason. However, employers using such tactics are warned that this method has every chance of backfiring. This week Ivan Israelstam explains the consequences - and type of financial penalty - of trying to circumvent good management practice.

Employers may be surprised to find that there are costs that may accrue when they fail to follow correct disciplinary procedures in dismissing employees. There may be Conflict Dispute Resolution Centre - attached to Bargaining Councils (CDR) or Commission for Conciliation Mediation and Arbitration (CCMA) costs. This week Ivan Israelstam explains what the potential costs are when employers fail to follow the requirements for dismissing employees for a fair reason and following a fair procedure.

Labour law cases often make reference to "piercing the corporate veil" and readers may wonder whether this is only to do with corporate business. In fact, it relates to business of all sizes, some of which may be very small cc operations. This week Ivan explains what sort of business activities may result in arbitrators or judges "piercing the corporate veil" and the costs that may result.

When a CCMA notice of an arbitration hearing arrives in a busy Human Resources department, there is a very real possibility that it does not receive the full attention that it deserves. The failure of an employer to attend an arbitration hearing at the CCMA without very good reason may be a very expensive error of judgement. This week Ivan Israelstam explains the grounds the Labour Court will accept for overturning an arbitration award.

Section 197 of the Labour Relations Act (LRA) requires the new employer, in a takeover as a going concern, to take over all the employees of the old employer. A takeover of an enterprise “as a going concern” essentially means that the new employer is carrying on the same business as the old employer after a takeover. This week Ivan Israelstam explains that it is possible to vary the impact of the transfer if all the affected parties - including the employees are consulted and an agreement is reached.

Business takeovers - or transfers as a going concern - mean that the new owner of the business takes over all the employees and all the responsibilities of the old business. In addition, retrenchments as a result of a going concern transfer are regarded as automatically unfair. This week Ivan Israelstam explains some of the - potentially very expensive - technicalities.

Ivan Israelstam

Employers do not always take allegations of sexual harassment seriously - such allegations may give rise to jokes and innuendo. However, employees have a right to a safe workplace and protection from discrimination. Cases of sexual harassment that are mishandled may lead to findings of unfair discrimination. Ivan Israelstam cites some cases to demonstrate the implications of failing to take seriously allegations of sexual harassment.

Ivan Israelstam

Employers should be aware that allowing senior management to overrule junior management, who are more knowledgeable and experienced in disciplinary procedures may be risky. This week in his second article of the series, Ivan Israelstam explains what double jeopardy is, and how employers who fail to understand double jeopardy, may make very costly mistakes.

Ivan Israelstam

What makes an employment relationship intolerable, and why is this important anyway? Those are the questions that Ivan Israelstam addresses this week. He explains why it is important that an employer understands what this means, and what other factors to take into account before proceeding with a dismissal decision.



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