IVAN ISRAELSTAM - CEO OF LLMC

Over 25 years in the labour law field
Four years experience as CCMA commissioner
Author of two labour law books
Labour law columnist in premier publications
In demand as speaker at conferences, seminars and on electronic media

Articles

Alerts

2012-12-5 MISUSE OF DISCIPLINE IS DANGEROUS

! LABOUR LAW ALERT !

MISUSE OF DISCIPLINE IS DANGEROUS

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting.

He may be contacted on (011) 8887944 or 0828522973 or on e-mail address:

ivan@labourlaw advice.co.za. Web address: www.labourlawadvice.co.za.

This is the first in a series of tips on the effective and legally compliant

use of discipline

It can be very tempting for managers to use their disciplinary powers to get rid

of employees who they want out of the way. However, as the CCMA is well

aware of such abuses of disciplinary processes employers are advised never

to go this route.

Regardless of management’s reasons for wanting an employee to

vacate his job there is always a legal, fair and practical way of resolving

the problem.

In the light of this and the fact that the penalty for unfair dismissal can be

disastrously high employers should always consult a reputable expert in

labour law before taking any action against an employee.

Labour Law Management Consulting specialises in chairing disciplinary

hearings. Our expertise ensures that the evidence led at a hearing is

impartially and effectively incorporated into a finding that is fair and

pragmatic.

! LABOUR LAW ALERT !

MISUSE OF DISCIPLINE IS DANGEROUS

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 8887944 or 0828522973 or on e-mail address: ivan@labourlaw advice.co.za. Web address: www.labourlawadvice.co.za.

This is the first in a series of tips on the effective and legally compliant use of discipline

It can be very tempting for managers to use their disciplinary powers to get rid of employees who they want out of the way. However, as the CCMA is well aware of such abuses of disciplinary processes employers are advised never to go this route.

Regardless of management’s reasons for wanting an employee to vacate his job there is always a legal, fair and practical way of resolving the problem.

In the light of this and the fact that the penalty for unfair dismissal can be disastrously high employers should always consult a reputable expert in labour law before taking any action against an employee.

Labour Law Management Consulting specialises in chairing disciplinary hearings. Our expertise ensures that the evidence led at a hearing is impartially and effectively incorporated into a finding that is fair and pragmatic.

2012-08-13 ARE MITIGATING CIRCUMSTANCES RELEVANT TO MISCONDUCT HEARINGS?

ARE MITIGATING CIRCUMSTANCES RELEVANT TO MISCONDUCT HEARINGS?

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it. . Go to: www.labourlawadvice.co.za. This article first appeared in The Star.

Where the employee is found guilty in any hearing mitigating circumstances can influence the penalty or corrective action decision. The concept of ‘mitigating circumstances’ refers to evidence brought by the employee that may persuade the presiding officer to hand down a lighter penalty than would normally be imposed. For example, the accused might say that he/she has never previously broken any rule in the hope of a more lenient penalty.

A number of important questions arise relating to mitigating circumstances in the labour law context. These include:

Legally speaking, is there a place for mitigating circumstances in a disciplinary hearing?
What submissions qualify as mitigating circumstances?
How must the presiding officer take account of mitigating circumstances?
What obligations does the employer have for facilitating the introduction of evidence in mitigation?

LEGALLY SPEAKING, IS THERE A PLACE FOR MITIGATING CIRCUMSTANCES IN A DISCIPLINARY HEARING?

The Labour Relations Act (LRA) does not specifically allude to mitigating circumstances. However, item 3(5) of Schedule 8 of the LRA says that, “When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.”

This makes it clear that circumstances other than the gravity of the offence itself must be taken into account before dismissing an employee. These additional circumstances stated in Schedule 8 are commonly known as mitigating circumstances. An employee who punched a colleague after being severely provoked should not be treated the same as an employee who assaulted a colleague without provocation.

WHAT SUBMISSIONS QUALIFY AS MITIGATING CIRCUMSTANCES?

Mitigating circumstances can include the size of the family the employee is supporting, the pressures exerted on the employee at the time of the misconduct, the employee’s work record, length of service, provocation, a show of genuine remorse and other personal and work related circumstances.

HOW MUST THE PRESIDING OFFICER TAKE ACCOUNT OF MITIGATING CIRCUMSTANCES?

The law does not quantify the extent to which the different types of mitigating circumstances must be taken into account. Neither does the law require the employer to accept the truth of the mitigating circumstances stated by the employee. However, the presiding officer must, if he/she fails to give a mitigating circumstance substantial weight, explain his/her reasoning for this. It is insufficient to ignore the mitigating circumstances or to reject them out of hand.

WHAT OBLIGATIONS DOES THE EMPLOYER HAVE FOR FACILITATING THE INTRODUCTION OF EVIDENCE IN MITIGATION?

Logic would dictate that bringing mitigating circumstances is entirely the employee’s duty. However, the employer has the duty of giving the employee the opportunity to argue mitigating circumstances. This the employer must do by:

Explaining that the verdict is guilty and that the employee has the right to bring mitigating circumstances
Explaining what mitigating circumstances are and what their purpose is
Giving the employee time to consider and explain these circumstances.

In the case of Afrox Ltd vs National Bargaining Council for the Chemical Industry & others (2006, CLL Vol. 15 No. 12) The employer failed to call two witnesses to the disciplinary hearing. The Labour Court found this to be unfair because these witnesses could have provided mitigating circumstances for the employee. This is a startling finding because there was nothing stopping the employee from calling these witnesses and there is no legal principle requiring an employer to call witnesses who can assist the accused employee. This case stresses the point that the courts consider mitigating circumstances to be important.

Employers have no hesitation in arguing aggravating circumstances. These are circumstances that add to the severity of the offence. They need to understand that their right to argue aggravating circumstances is balanced by the employees right to be heard on mitigating circumstances. But weighing up aggravating and mitigating circumstances fairly is a most difficult task and should be carried out by an experienced presiding officer who understands the subtleties of labour law.

2012-05-21 POOR CONDUCT CAN MEAN POOR MANAGEMENT

POOR CONDUCT CAN MEAN POOR MANAGEMENT

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: This email address is being protected from spambots. You need JavaScript enabled to view it. . Web address: www.labourlawadvice.co.za.

It does happen that an employee continues to break rules regardless of how well he/she is managed. However, in my experience this is more the exception than the rule. More often, consistent poor conduct reflects a management that is either unskilled or unwilling to manage employee conduct. As a result we may well find that employees:

Spend hours chatting on the phone
Fail to work according to quality standards
Do private chores during working hours
Refuse to carry out instructions
Fail to check their work
Abuse sick leave
Have no pride in their work
Misuse the internet
Send private e-mails during working time
Steal from the employer
Get into fights
Miss deadlines
Waste production materials
Arrive for work late, take long lunch hours and go home early

It is not necessarily the manager’s fault that employees want to misbehave or to slack off. Laziness, disinterest or lack of caring can be due to the employee’s own character. However, where this is so, it is up to the manager to implement corrective measures that must either change the employee’s behaviour or, where this has been properly tried and failed, result in possible dismissal. That is, every manager and supervisor must know how to:

Quickly recognise rebellious or demotivated employees
Engage with them in such a way that they are quickly aware that their behaviour will not be tolerated
Guide wayward employees along the correct path
Institute swift, timely, firm and appropriate disciplinary action that is not only effective but is also seen as fair by the CCMA or bargaining council.

Many managers are unable to deal with errant employees effectively and just as many are unable to discipline employees within the bounds of the law. This results in employees getting away with serious misconduct which is badly damaging to the employer. For example, in the recently decided case of Faltyn vs Buffalo Flats Community Development Trust (2005, 2 BALR 183) Faltyn was dismissed for losing cash belonging to the employer. The employee alleged that the cash had been stolen from him. He had collected the cash the previous day and, instead of handing it in as he was supposed to have done, he had kept the cash with him. He had left work early without permission to do a personal errand and had been mugged the following morning on the way to work while he still had the cash in his possession.

The CCMA arbitrator accepted that:

The employee could have handed in the money on the day it had been collected
The employee should have spoken to his employer about his personal problem requiring him to leave work early
The employee deserved to be dismissed.

Despite this the arbitrator ordered the employer to pay the employee financial compensation. This was because the same manager who had decided to charge the employee also presided over the disciplinary hearing. The fact that the manager had made the decision to charge Faltyn meant that the manager would have had knowledge of the incident prior to the hearing. For the same manager to then preside over the hearing rendered him a potentially biased chairperson because his prior knowledge of the incident could have influenced his judgement.

This is one of thousands of cases where such a technical error on the part of a manager has cost the employer money and has benefited an employee who was clearly guilty and deserving of dismissal. Often, this kind of error is the fault of the manager because the manager should have known better. However, more often than not it is the fault of the manager’s employer for having failed to:

Train the manger in the requirements of lablour law
Give the manager access to labour law experts who could advise the manager on how to deal with the case in question.

2012-07-23 EMPLOYMENT OF SEX OFFENDERS REGULATED

EMPLOYMENT OF SEX OFFENDERS REGULATED

Certain employers could be prosecuted for employing sex offenders.

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: This email address is being protected from spambots. You need JavaScript enabled to view it. . Website: www.labourlawadvice.co.za.

Legislation has been proposed (Contemporary Labour Law [CLL] Vol. 17) via section 45 of Chapter 6 of the Criminal Law Amendment Act 32 (CLAA) prohibiting, under certain circumstances, certain employers from hiring or continuing to employ sex offenders. For the purposes of this law “employers” are defined as those that employ staff who, directly or indirectly, deal with or come into contact with children or mentally disabled persons (MDP) in the course of their work.

While the CLAA is not a labour statute section 45 will directly affect the targeted employers and employees. Employers therefore need to understand all the provisions of the CLAA, to comply with all their legal obligations under this act and to do so in such a way that they do not infringe labour legislation protecting the rights of employees (whether they are sexual offenders or not).

The purpose of this legislation is to prevent employees from committing sexual acts against children or MDPs as members of these two population groups are normally unable to protect themselves from offences such as rape, sexual molestation and other sex-related infringements. It appears that the promulgation of this legislation this is a reaction to reports of such offences having been perpetrated in South Africa.

The scope of this legislation is not entirely clear but it appears that employers to be affected would include those who employ staff such as nurses, psychologists, doctors, teachers, airline staff, domestic workers, church employees and officials, scoutmasters, social workers, crèche staff, child counselling centre workers and other employees dealing with children or MDPs.

According to the CLL report the term sex offenders means, for purposes of this legislation, people who have, or who are officially alleged to have, committed sex offences against children or MDPs. The CLAA requires the establishment of a Register of such sex offenders. Employers, as defined above, may not employ persons whose names are on the Register or persons who have failed to disclose to their employers, convictions against them for sexual offences against children or MDPs.

This imminent legislation requires the employers in question to screen all job applicants and not to employ them if they are sexual offenders as defined. Furthermore, employers must screen existing employees and terminate the employment of those who they are not allowed to employ in terms of the CLAA. However, the employer may not terminate the employment if it is possible to transfer the sex offender to a post where there is no risk of him/her committing a sexual offence in terms of the CLAA. The employer is required to apply to the Registrar for a certificate stating whether or not he/she is on the Register of offenders.

Where the employee claims that his/her registration as a sex offender is erroneous or has lapsed the employer should give the employee a chance to apply for his/her name to be removed from the Register. This may require a suspension from duty of the employee for the period necessary to have the name removed. The CLAA does not clarify what happens if the employee’s registration as a sex offender lapses. That is, where the employment continues due to the lapsing of the employee’s offender registration and the employee then commits a sexual offence against a child or MDP, it is unclear what degree of liability, if any the employer will have. Employers are therefore advised to obtain indemnities and insurance against such liability.

Employers are further advised, before deciding to terminate such a sexual offender’s employment, to first hold a hearing to give the employee the opportunity to show why he should not be dismissed. Employers, as it is so often the case, are in a tight position. On the one hand the CLAA requires them to terminate or refuse the employment of such sex offenders. But, on the other hand, the Labour Relations Act (LRA) prohibits employers from terminating employment without good reason and without following fair procedure. The employer is therefore the meat in this legislative sandwich.

In view of the above dangers affected employers should obtain expert advice from a reputable labour law practitioner before acting against a suspected sexual offender. However, the employer should not delay in getting such advice as any delay could result in the employee committing a sexual offence at work which will put the employer in serious hot water. The CLAA provides for a fine and/or a prison sentence of up to seven years for employers who do not comply with section 45 of the CLAA. Added to this could be the damage and even ruin of the employer’s reputation resulting from the sensational media coverage that is likely to ensue in cases of sexual offences committed against the children and MDPs who the employer is supposed to be looking after.

Don’t Mess With Retirement Age

DON’T MESS WITH RETIREMENT AGE

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082-852-2973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it. .

It is tempting for employers to use retirement age to get rid of employees

However, the Labour Appeal Court penalises wrongful employers heavily

The recent matter involving Cash Paymaster Services is a case in point

Here, the employer dismissed the employee claiming that he had reached the normal retirement age of 60.

However, the Court found that:
The employer had already agreed that 65 would be the retirement age
The employee had been unfairly dismissed because of his age
The dismissal was automatically unfair

The employer had to pay the employee:
Most of the employee’s legal costs incurred at the Labour Court
The employee’s legal costs incurred at the Labour Appeal Court.

In the light of the above employers need to:
Ensure that the legal advice they get is sound
Resist the temptation to use retirement age inappropriately
Avoid changing terms of employment unilaterally
Ensure that all members of management understand the direconsequences of unfair discriminatory behaviour

Search our website.