labour law

Employers may not realise that many of their decisions to restructure or reorganise reporting relationships within the company many in fact represent a demotion for an employee. Changes that affect an employee adversely may be defined as a demotion. This week Ivan Israelstam explains what may constitute a demotion, and how the CCMA will interpret the preocedural requirements related to demotions..

Employers may view probation as a means of easily terminating employees, who don't quite "fit in" or don't meet company standards. There are clearly set out requirements for employers to comply with before dismissing a probationary employee. This week Ivan Israelstam explains what happens when the James Bond type employer meets the CCMA commissioner.

Management, executives, and company boards do not always agree on an appropriate method to deal with senior employees when a company suffers a financial downturn. This week Ivan Israelstam points out how important it is to investigate the facts before deciding on the correct path to follow. A company should not agree on a retrenchment and then try also to dismiss for some form of misconduct or lack of performance.

Employers may retrench employees for reasons of economic, structural, or technological reasons, in terms of the Labour Relations Act and the Code of Good Practice on Operational Requirements Dismissals. The Labour Appeal Court has stated that retrenchment has a serious impact upon employees. Decisions on retrenchment therefore have to be made based upon sound objective criteria, which emerge after consultation with the parties concerned, and are backed by evidence. Ivan Israelstam sets out the issues determined by the courts in two cases.

Employers deal with a range of issues related to illness, for example: a genuinely ill employee who obtains a certificate from a bogus medical practitioner, or a traditional healer; or an employee who is not ill at all but obtains a fake medical certificate; or an employee who was ill but who extends the time given on a genuine certificate by altering the date - such as from a 1 to an 11 to obtain more days off. This week Ivan Israelstam explains the approach of CCMA Commissioners, and when disciplinary action may be taken.

Many employers think that by not putting anything in writing they are protecting themselves. On the contrary, as Ivan Israelstam explains this week, they are putting themselves in a very vulnerable position, where they will not be able to protect themselves when a dismissed employee claims that the company did not have any rules and standards, and allege that no procedure was followed in their dismissal.

Employers may feel that issues of sex and gender have nothing to do with running their business. However, the Employment Equity Act has specific prohibitions against unfair discrimination. Such allegations may arise as a result of employee behaviour, but also management decision-making in recruitment and promotion appointments This week Ivan Israelstam explains how the Labour Court has dealt with these cases.

The circumstances of every disciplinary enquiry are different - as are the personal circumstances of the employee involved. Therefore before deciding upon a dismissal decision, the chairperson of a disciplinary enquiry needs to take into account a range of factors in addition to what occurred. Ivan Israelstam explains how the CCMA and bargaining councils have given guidance on how extenuating circumstances should be taken into account.

An employer may think that by offering an employee a fixed term contract, they will be able to simply terminate the employee at the end of the contract. However, as Ivan Israelstam explains it depends upon the circumstances and company policy and practice. An employer may inadvertently give a temporary employee an expectation of further employment.

Insubordination is generally considered to be a serious offence. That is because it involves a refusal to obey a lawful and reasonable instruction of someone more senior in the hierarchy of the organisation. Refusal to follow the instruction may be seen as undermining the legitimate authority of a manager or supervisor. However this week Ivan Israelstam explains why it is important to consider the circumstances of each specific case before deciding that a dismissal is the appropriate response.



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