Labour Relations Act

This week Ivan Israelstam explains the process an exployer should adopt if a retrenchment of employees is contemplated. He explains what the steps are to be followed, to ensure that the employer complies with the requirements of the Labour Relations Act for what is an operational requirements dismissal.

What is a transfer of a business, and what are the implications for the new owner of the business? This week Ivan Israelstam uses examples of cases to explain the expensive consequences for a business owner, who does not follow the requirements of the Labour Relations Act. 

Businesses - or part of a business - are taken over by new concerns, or required services are outsourced. Then the service provider may be replaced by a second service provider. When do these business transfers fall under section 197 of the Labour Relations Act? Ivan Israelstam explains why it is so important to understand what business transfers are defined as transfers as a going concern.  

This week Ivan Israelstam provides examples from the Commission for Conciliation Mediation and Arbitrator and the Labour Court to explain the complexity of decisions on what may be considered as an unfair labour practice.  

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 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. 

 

Before embarking upon large scale retrechments, employers need to have a very clear understanding of what labour law requires. This week Ivan Israelstam explains the definition of large scale retrenchment and describes how the Labour Court has decided on retrenchment procedures. He concludes that everything is not clear and advises employers to seek legal assistance before embarking on large scale retrenchments.

Labour brokers - or temporary employment services (TES) - provide staff to companies, but sometimes fail to realise that they are also bound by the rquirements of labour law as employer. In addition to the legislation there may also be additional bargaining council determinations, which set conditions such as minimum wage rates. This week Ivan Israelstam explains how the CCMA has decided dismissal arbitrations involving labour brokers.

This week Ivan Israelstam expresses his view that the employer’s right to dismiss has been weakened. He explains how the Sidumo matter proceeded through various courts ultimately ending in a Constitutional Court decision, which provides the standard for employers to adhere to when deciding upon a dismissal sanction.

The Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act) provides the guidelines for employers to follow in disciplinary proceedings. This code does not specifically require "cross-examination" but does provide that the employee must be aware of the allegations against them, to understand them, and be given a chance to state their side of the story - or defence - in response to the allegations.This week Ivan Israelstam explains the meaning of "cross-examination" and provides advice on how employers should proceed.

A second generation transfer arises when a company first outsources a part of the company to a service provider company, who takes over the employees related to that company department or service. The contract is for a fixed period and the orginal company then re-tenders to a different service provider company to take over the provision of the services. The question arises: does the second service provider company have to take over those employees who were part of the original transfer? The answer has not been clear, and the courts have differed on the correct interpretation of s197 of the Labour Relations Act. This week Ivan Israelstam explains these different interpretations.

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.

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.

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.

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

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

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.

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.

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.

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

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