labour law

Ivan Israelstam

Employees who are seen as trouble-makers, eccentrics, disruptive, disagreeable, pushy, non-compliant, independent or who merely refuse to ‘suck up’ to the boss often find themselves on the wrong side of the exit door.

Ivan Israelstam

The term ‘shop steward’ is a colloquial one and refers to the employee elected as the workplace representative by fellow employees who belong to the relevant trade union. The Labour Relations Act (LRA) officially refers to shop stewards as “trade union representatives”, and section 14 of the LRA gives these representatives (shop stewards) a number of special rights.

Ivan Israelstam

One of the most difficult situations for companies to handle is an arbitration award that requires reinstatement or re-employment of previously dismissed employees. Apart from implications for the management of the rest of the workforce, the requirement not to be seen to victimise the employee/s is critical. Ivan Israelstam explains.

Ivan Israelstam

Employers ask whether a disciplinary code is necessary in terms of labour law. This week Ivan Israelstam explains why he believes that a disciplinary code is a valuable tool for employers.

Ivan Israelstam

The Employment Equity Act amendments now require all employers to ensure that they do not pay employees doing the same, or substantially the same work, different remuneration packages. This applies whether the position is full or part-time (where the rate should be pro-rated according to the hours worked), in different departments, temporary or permanent workers, male or female workers - or any other irrelevant criteria. Ivan Israelstam explains what the employer needs to do to compare jobs.

Ivan Israelstam

Takeovers, mergers and acquisitions are common business activities, as are decisions to outsource part of a company's activities. These business arrangements have implications for the employment relationship, but it is not always easily defined where the labour law and contractual obligations lie. Ivan Israelstam explains how these matters are viewed by the labour courts.

Ivan Israelstam

The precise nature of the ownership of companies can sometimes be difficult to discern. But employers should be under no illusion that if they attempt to avoid labour law obligations by creating complex ownership schemes, the CCMA and the labour courts will devote time and attention to "unveiling" the true nature of the ownership and the employer obligation. In this manner, more than one company may become jointly and severally responsible for the labour law obligations. Ivan Israelstam provides examples of how this may happen.

Ivan Israelstam

Employees and union officials sometimes allege that an employer is trying to "work an employee out", that is making life so uncomfortable that the employee will choose to leave and find work elsewhere. However, in South Africa with such extremely high levels of unemployment, alternative jobs are not easy to come by. As a result employees will remain with the company and put up with the unfair treatment - or alternatively, resign and allege that they had no alternative course of action - that the employer effectively caused the termination. Ivan Israelstam explains the test to prove such an allegation.

Ivan Israelstam

The South African Constitution and the Employment Equity Act are very clear on the grounds that may give rise to unfair discrimination. Not all discrimination is unfair. Employers constantly make choices, for example: on who to appoint, who to promote, who qualifies for a company car, and many similar decisions. It is the fairness and objective grounds upon which the decisions are based that matters. Ivan Israelstam explains further what is required of an employer.

Ivan Israelstam

The media often features stories of bribery and corruption. Employers often simply assume - or hope - that these activities happen elsewhere. However, employers would be well served to follow Ivan Israelstam's guidance on what constitutes these activities - how they are defined, and how they should be managed professionally.

Ivan Israelstam

Victimisation is an allegation made by employees sometimes under the Labour Relations Act and sometimes under the Employment Equity Act. Ivan Israelstam explains various acts that are classified as victimisation, but also points out gaps in the laws. He advises employers to proceed with caution and not think that they have a free hand in their behaviour with employees.

Ivan Israelstam

Employers may not compromise the privacy of an employee's private emails in terms of the legislation regulating interception of communications. Therefore, Ivan Israelstam advises that employers ensure that they have employees' written acceptance that their emails sent using company facilities may be monitored.

Employers who hold senior positions in multi-national and national organisations may hold an arrogant belief that the CCMA Commissioner will believe their testimony against that of a junior employee. Ivan Israelstam explains why this approach could lead to the company losing the arbitration.

Human resource practitioners will be aware of the saying that one employs for qualifications and dismisses for behaviour. Individuals who have been model employees may suddenly start behaving in uncharacteristic ways, brought on by personal relationship problems, trauma, or forms of physical or mental illness. No matter how frustrating the behaviour may be for the employer Ivan Israelstam explains why it is critical that employers behave correctly.

What are the required notice periods when an employee resigns? What rights does an employer have when an employee simply gives "instant" notice - or fails to work in their notice? How should an employer respond? These are the questions that Ivan Israelstam deals with this week.

Ivan Israelstam

It is often very difficult for employers to provide sufficient proof to the CCMA or bargaining council commissioner that the employee is guilty of the misconduct for which he was dismissed. The employer has the full onus (legal responsibility) of proving that the dismissal is fair. Employers often believe that video or camera footage will provide sufficient evidence for a dismissal. This week Ivan Israelstam explains the complexities involved in using this technology in disciplinary hearings.

Ivan Israelstam

A retrenchment is considered a "no fault" dismissal. Therefore, while it may become necessary for a company to retrench, every consideration should be given to alternatives to retrenchment. This applies particularly to employees with long service, and also to employees who have the skills required to maintain and develop the business. Ivan Israelstam what aspects should be considered by companies before deciding on a path of retrenchment

Ivan Israelstam

While retrenchments may be considered necessary for a company, it is critical that employers understand the rights of employees in these circumstances, and the appropriate procedures to adopt to ensure that these rights are protected. Ivan Israelstam explains the three factors at the very heart of protecting the rights of employees.

Not all discrimination is unfair. Choosing one employee from a group of applicants is making a discriminating choice between the applicants. As long as there is a valid reason for the choice, for example: in line with an employment equity plan, or on objective qualification requirements, the choice will not be unfair. However, if the decision is not made upon objective grounds, and a court makes a finding of unfair discrimination against your company, this can potentially have serious implications. Ivan Israelstam explains how this may happen and the financial consequences of such a finding.

Ivan Israelstam

Why is clarification of the date of the sale of a business so relevant? The Labour Relations Act provides protections for employees when ownership of a business changes hands. Potential sellers and purchasers need to take very good care not to transgress those employee protections. Ivan Israelstam explains further.

It will now be illegal in South Africa to hire workers in temporary employment for more than three months without justifiable reasons.

Are you part of the delusional 50% that often seem to make up the ranks of junior management? Mosima Selekisho, a director at Talent Africa, an executive search firm asks this important question.

Managers and supervisors do often grapple with the concept of an "unfair labour practice". Seeking the definition in the Labour Relations Act (LRA) doesn't make things entirely clear because within the LRA definition, the term "unfair" is used a number of times. So how do managers and supervisors decide whether the action they are about to take is "unfair"? Ivan Israelstam uses cases to illustrate the difficulty.

Newly appointed supervisors and managers do sometimes find difficulty in understanding what is meant by a "fair labour practice". As Ivan Israelstam explains in this article, it is not quite as simple to identify what is unfair as it is to identify what is illegal in criminal law. This article sets out very plainly the questions managers and supervisors should ask themselves to determine whether their actions will be seen as "fair" - or unfair

Pages

Subscribe to labour law