labour law

Benefits paid to employees may represent an increasing cost to employers, but it is not possible for an employer to simply remove benefits that an employee previously enjoyed without challenge. Such challenges will be heard at the CCMA. This week Ivan Israelstam explains just how much a successful challenge may cost an employer who loses their case.

In a country of high unemployment rates, competition for jobs is fierce. Some individuals feel that they will improve their chances of employment by enhancing the contents of their job history - or alternatively hiding the details of previous disciplinary action, or dismissals. While some personal information is protected by the Constitution to prevent unfair discrimination, the recruiting employer is entitled to all details relevant to the job requirements. Ivan Israelstam explains the types of deception and how they have been handled by the CCMA.

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.

It is critical that employers correctly identify what are the inherent requirements of a job. These should be based very clearly on what is required to meet the requirements of the job. Requirements should not be based on any potentially discriminatory criteria, such as religious belief. An issue arises when a requirement of the religion, such as growing a beard is potentially in conflict with a company rule requiring employees to be clean-shaven. This week Ivan Israelstam explains further how such apparent conflicts are judged.

In difficult economic times, employers may consider that reducing the employee complement is a way to save money. Making a wrong choice, such as choosing an older person and expecting them to retire before the company policy retirement age could turn out to be a very expensive exercise. This week Ivan Israelstam explains unfair discrimination.

Employers may be inclined to use retrenchment to solve various types of human resource "problems". For example: to dismiss non-performing employees who have not been performance managed, or to change the employer demographic profile, or to dismiss an employee whom management regard as a "troublemaker". However, the CCMA and Labour Court will closely examine the criteria used to identify potential retrenchees. Retrenching an employee is a very serious step - not to be taken lightly, or without clear labour law advice. Ivan Israelstam explains further.

In any workplace there will be grievances from time to time. Employers may think that because there is no specific labour law describing how to handle grievances, that employee grievances may be ignored. However, where there is a pattern of grievances over a period of time employers are well advised to take these seriously, and investigate the circumstances of each complaint. Failure to do so may lead to various adverse effects upon the employer. Ivan Israelstam explains further.

Not all employees behave perfectly every day. Employers are required to deal with employees that may be disruptive for a range of personal or work-related reasons. It is important for employers to remain calm at all time, not to overreact, and to follow their disciplinary procedure at all times. This week Ivan Israelstam explains further why this advice is so important.

The service that labour brokers provide is to find and to place workers with a business. But what happens when there is an incident and the business no longer wants to accept the worker who has been placed with them? Ivan Israelstam explains the findings of a case where exactly this scenario occurred.

What are the implications of saying that the disciplinary process does not mean to be a formal process? That is the question addressed this week by Ivan Israelstam. The key point is how will the employer prove that the procedure adopted was fair, and that the employee received a fair hearing if there is no documentary trail?

When may an employer decide that dismissal is the correct sanction, and when may a CCMA Commissioner overturn that dismissal decision?. This week Ivan Israelstam explains the rights of CCMA Commissioners. Ivan also points out how the courts have confirmed the extent of the Commissioner powers, and how and when a Commissioner may override an employer decision to dismiss an employee.

Using retrenchment as a means of dealing with poor performers is not only risky and potentially very expensive, but also represents a failure of management. This week Ivan Israelstam explains what constitutes fair criteria for retrenchment and the possible costs to an employer of failing to conduct a procedurally fair consultation.

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.

This week Ivan Israelstam says: "without proof your case goes poof!" Arguing your case vehemently but without any substantiating evidence will not win your case - no matter how good your debating skills. What is required to win your case at a CCMA or bargaining council arbitration is evidence. Ivan explains that evidence may be presented via witnesses, documents, video, or recordings, and outlines the process at arbitration.

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.

This week Ivan Israelstam demonstrates one of the results of many years of advising employers on disciplinary procedures, namely knowing the many unfair methods unscrupulous employers may use to "dismiss" employees. As Ivan explains using a biased (pre-briefed) presiding officer for a disciplinary hearing is highly likely to backfire when the dispute reaches the CCMA or bargaining council.

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