labour law

Fines of up to R1 500 000 require desperate measures from defaulting employers reports Ivan Israelstam. The Department of Labour Employment Equity Division is very serious about getting designated employers to comply with the requirements of the Employment Equity Act. If you have failed to meet the 15 January 2018 deadline for online reporting, then read on for Ivan's advice. 

Where the job itself is permanent it is dangerous to employ staff on anything but a permanent contract. This is firstly because the Labour Relations Act provides for fixed-term employees to have a reasonable expectation of renewal of their contracts at the expiry date. Secondly, case law has gradually narrowed those circumstances under which an employment agreement can legitimately be accepted as a limited duration contract.

Sex related acts not always sexual harassment - that is the outcome of a case Ivan Israelstam examines this week.  This case indicates how important it is to ensure that disciplinary action is taken timeously.  A delay - and allowing the employee to continue working - would indicate that the trust relationship is not broken. Therefore, dismissal may be found to be unfair.

This week Ivan Israelstam explain that the responsibities of larger employer. The bigger the employer, the more that is required before dismissing a sick employee. The case against Standard Bank illustrates how the courts will consider the responsibilities of the larger employers. This is especially a concern where the employee has long service and previously been a good employee. 

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. 

This week Ivan Israelstam explains how strikes can damage a company in the long term - way after the strike has concluded, and how employees are also adversely affected. He provides guidance for employers on how to manage a strike and how to go about re-building the employment relationship. 

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 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.  

This week Ivan Israelstam covers disciplinary hearings. What should an employer take into account when an employee does not attend a disciplinary hearing, and what does the law say about employees who deliberately try to delay the disciplinary hearing from proceeding? 

Some employers may assume that illegal immigrants or employees without work permits have no legal rights in South Africa. This view may lead employers to mistreat staff, who are vulnerable because the employer believes that such employees have no recourse to labour law. This week Ivan Israelstam explains that employers should take note that this view is incorrect and why it is ill-advised. 

This week Ivan Israelstam looks at the cases of alleged sexual harassment.  Questions answered are: how should an employer respond to sexual harassment allegations by an employee, and what are the obligations placed upon an employer?   

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.  

What is the procedure for an arbitration? Must I take my witnesses along with me? Must I take the evidence - the documents/video recordings along to the CCMA with me? This week Ivan Israelstam makes clear exactly how the CCMA Commissioner will run the arbitration.  The following questions are answered: who speaks first, what do the participants present, what is the role of the witnesses, and how is the evidence presented?  

This week Ivan Israelstam explains that labour law does allow an employer to dismiss an employee.  However, labour law expertise is required to ensure that the dismissal is both procedurally and substantively fair. Employers cannot simply to decide to dismiss an employee on the word of an external party - without following any internal procedures. 

This week Ivan Israelstam explains why it is important for employers to understand the rights of pregnant women and the responsibilities of the employer. How should the employer deal with maternity leave? There is an entitlement for 4 months maternity leave and employees should not be pressured to take a shorter period of maternity leave. 

 

Ivan Israelstam sub-titled this article: Sick employees can drive employers to drink. This week Ivan explains what the obligations are on employers when they have an employee who is ill.  The question is: what does "ill" mean? Employees who have become addicted to substances, or who have become disabled in some manner have certain rights, which the employer is obliged to uphold.  Ivan explains further ...

How does the dispute resolution system work in South Africa? New employers and new employees in the human resources, personnel, and industrial relations fields, as well as students will find the explanation by Ivan Israelstam this week very useful.   

This week Ivan Israelstam provides a comprehensive explanation on what is required to investigate allegations of misconduct.  Ivan points out that ignoring incidents represents poor management, but before acting upon allegations of misconduct, it is important to conduct investigation into the all the relevant evidence of misconduct. 

This week Ivan Israelstam addresses the danger of an approach used by some employers, who have not effectively managed performance and behaviour. To remove "troublesome" employees - who should have been disciplined or performance managed - the employer goes to great lengths to manipulate positions, and to create a redeployment pool, which effectively amounts to a redundancy pool. Ivan demonstrates how the Labour Appeal Court has the power to uncover alternative agenda, and the consequences of such poor management performance. 

This week, Ivan Israelstam explains the legally distinct reasons for dismissal: for misconduct, for poor work performance, and for operational requirements.  These are distinctly different reasons, and each has a distinctly different procedure to achieve a legally compliant dismissal. There are always exceptions in the cases, but employers are well-advised to follow the standard methods for each circumstance. 

Everyone can quote examples of entering a retail store, other service provider, or office, looking for service - only to find an employee filing their nails, or talking on a private call on their the cell phone, or clearly on a social network. Now who is responsible for this behaviour?  Yes, the individual himself or herself, but the key question is where is management?  Why is this employee allowed to behave like this in company time? This week Ivan Israelstam approaches the issue of management responsibility.

This week Ivan Israelstam explains why it is important that an employee should be allowed to cross-examination witnesses giving evidence at a disciplinary hearing. Sometimes a chairperson will interrupt or limit the employee's questions.  What is the implication when this happens?

What is a "transfer as a going concern" and what are the implications for employees who are part of the transfer? This week Ivan Israelstam explains how the courts have developed the answer to these very complex questions over a period of time. 

What rights does an employer have to discipline an employee for misconduct outside the workplace? What will be taken into account when an employee commits an offence - or a related crime - outside the workplace? This week Ivan Israelstam explains what factors will be taken into account by the CCMA. 

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