labour law

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.

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.

When an employer has interns or trainees, such as apprentices, or learners on learnerships, are they defined as employees or not? This week Ivan Israelstam explains how the Labour Relations Act defines an "employee". As Ivan advises always ensure that trainees are treated fairly. We recommend that this article be read in conjunction with the Sectoral Determination on Learnerships available on the Department of Labour website.

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

Once the employer has decided upon the successful applicant after a recruitment exercise, the critical period of making an offer and negotiation on terms and conditions commences. Ivan Israelstam suggests that an employment contract should not be concluded until all these negotiations are agreed. Read on to find out why this is so important.

Ivan Israelstam

This week Ivan Israelstam explains what happened to employers who tried to avoid the requirements of the section on probation in the Code of Good Practice on Dismissal. Pretending an employee is on a fixed term contract - or an independent contractor - will cause just as much trouble at the CCMA. So the best practice is to provide the counselling, guidance or training that a probationary employee requires.

Ivan Israelstam

This week Ivan Israelstam makes the case that labour law has become more restrictive upon employers. He explains that those who have used repeated fixed term contracts should no longer do that - only employ on a fixed term contract where there is a genuine short term job. Secondly, using labour brokers - TES or temporary employment services - has also become more restrictive and difficult as a result of the latest labour law amendments.

Ivan Israelstam

Before embarking on disciplinary procedures in serious cases of misconduct, employers often question whether the action is enough to warrant dismissal. One of the key factors in this decision is whether the trust relationship has been broken. This week Ivan Israelstam explains why this factor is important.

Ivan Israelstam

Employers and labour lawyers frequently complain that the decisions of CCMA commissioners are inconsistent and consequently awards vary considerably and don't provide guidance on the standard to follow. This makes it difficult for employers to know how they should conduct their internal disciplinary processes. This week Ivan Israelstam explains how guidelines for commissioners conducting Misconduct Arbitrations will lead to more consistent decision-making.

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

This week Ivan Israelstam launches a series of articles dealing with the changes to labour law implemented by the Department of Labour. The articles will also make reference to how case law - that is decisions by the CCMA, bargaining councils and courts affect how the labour laws are to be implemented.

Ivan Israelstam

Schedule 8 Code of Good Practice: Dismissal indicates that the hearing to determine whether an employee should be dismissed does not need to be formal. However, Ivan Israelstam argues that in order to prove at the CCMA that the employer did respect the employer's rights, there needs to be formal documentation.

Ivan Israelstam

As ivan Israelstam demonstrates this week, there are many reasons why spiteful actions arise in workplaces. But when emotions and egos come into play, the results can be both expensive and destructive for the business. To avoid these dangers you may want to read on and follow Ivan's advice.

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.

Ivan Israelstam

This week Ivan Israelstam explains the differences between a retrenchment (an operational requirements dismissal) and a mutually agreed termination of an employment contract. The procedures to be followed are different and the nature of the document that concludes the ending of the employment contract are significantly different. Mixing up these two types of agreement can be expensive.

Ivan Israelstam

In the mid 1990s the old labour legislation was repealed and was replaced by our current Labour Relations Act (LRA) negotiated between government, employers and trade unions. Due to the fact that parties had substantially different agendas they were often unable to agree on a number of important details of law which were therefore omitted from the LRA. Some detail as to the intention of the law is provided in the form of codes of good practice and other gaps may be filled by case law. Ivan Israelstam explains further.

Ivan Israelstam

Employees, just like most other people, tend to look after their own interests first. They are, in most cases, working to satisfy their own needs, whether such needs are financial, self actualising or based on other motives. For this reason common law, while recognising the employee’s right to look after his/her own interests, balances out this right with the employee’s obligation to ensure that the satisfaction of his/her interests does not conflict with those of the employer.

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