Employers too often try to remove their older employees from employment in order to ‘make way for new blood’ or because such employees sometimes move more slowly or ‘do not fit in’. However, such employees are protected by the Employment Equity Act (EEA) which prohibits unfair discrimination against an employee on the grounds of age….
All grievances should be treated with great care in order to establish their validity and to ensure that they are given appropriate attention. Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit. However, more often employers go to the opposite extreme and brush…
Where employees disrupt the workplace the operations of the business can be seriously affected. Employees who behave in a disruptive manner might do so for a variety of reasons including: Abuse of alcohol or other substances Incompetence – that is, while the employee is not intentionally disruptive, his/her inability to perform properly disrupts the flow…
The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment-related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury. Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances…
While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. The key question is ‘How can the employer go about proving that…
The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned. Under the PDA both employees and employers are protected. That is, employees are…
In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to: Subpoena witnesses and documents On authorisation, enter and inspect any premises on which any relevant document or other object is to be found On authorisation, remove and inspect any relevant document or other object…
Employers too often make the mistake of retrenching problem employees because they perceive the disciplinary process as being too drawn out and complicated. However, they are not allowed to use retrenchment to get rid of ‘deadwood’, trouble makers, poor performers or other undesirables. Retrenchment only becomes a possible option if the job is truly redundant….
The Basic Conditions of Employment Act (BCEA) entitles most employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to: be remunerated for work done be given vacation leave, sick leave, maternity leave and family responsibility leave be paid for overtime worked lunch breaks weekly…
To have a chance of winning a case at CCMA a party must present proof to the arbitrator. In the days when I arbitrated CCMA matters parties argued their cases before me very vehemently, passionately and in great detail but often brought little or no support for their arguments. They were then most surprised when…
When an employer temporarily requires an employee to vacate its premises and to stop performing his/her duties this is called ‘suspension’. The effect of a suspension is that the employee is not allowed to return to work until the employer instructs that he/she may do so. Such suspensions normally occur: While the employer is investigating…
Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include: The employer dislikes the employee for reasons unrelated to the workplace. The owner wants a more attractive secretary The employee is unwilling to grant her superior sexual favours The employee has clashed with a key executive who has…
In a Labour Court review the party who is unhappy with the award asks the Labour Court to set the award aside on the grounds that the arbitrator, in making the award, ‘misconducted himself/herself’. That is, the review application is not an appeal against the award decision but rather a claim that the arbitrator: Committed…
Section 213 of the Labour Relations Act (LRA) provides that an employee is anyone, other than an independent contractor who works for another person or who assists in conducting the business of an employer. This definition omits only service providers who are external and/or truly autonomous. Section 200A of the LRA states that, unless the…
Where there has been only one employee retrenched, the Labour Relations Act (LRA) allows the CCMA and bargaining councils to arbitrate the retrenchment dispute where conciliation has failed to resolve it. This has made it easier for employees to oppose retrenchments. That is, due to the quicker and simpler processes at the CCMA as compared…
Employers are becoming more and more desperate in their attempts to run orderly, productive and profitable businesses. The special obstacles to the achievement of this goal are intense and growing international competition, the world economic crisis, South Africa’s culture of crime and disciplinary legislation that severely restricts the rights of employers. In their attempt to…
South Africa’s labour legislation provides very heavy protection for employees. That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be dismissed. These obstacles include: A plethora of procedures that must be followed before a dismissal can be…
Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee’s alleged misconduct “The employee should be allowed …… the assistance of a trade union representative or fellow employee.” It is on this basis that…
Trade unionism can mean problems for any employer. Due to their uncertainty as to the rights of unions many employers unnecessarily give to unions rights that they are not legally required to give them. Just as often employers lose out because they fail to accord to unions rights that have been conferred by law. The…
But chairpersons must be unbiased! BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za. The CCMA Guidelines: Misconduct Arbitrations (The Guidelines) states that it is not unfair for employers to use third parties such as attorneys to…
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za This is the second in a series of articles on Changes and Dangers in Labour Law. In the interests of fairness arbitrators and judges sometimes depart from the…
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za The drafters of the Labour Relations Act of 1995 (LRA) expressly provided for a right to be heard in the statute. That is, section 188 of the LRA…
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website address: www.labourlawadvice.co.za. It is legally risky for employers to fire an employee for using alcohol or drugs. This is because, where the employee is addicted, he/she is legally classified as…