Details of the seminar are as below. Cost for the day is R1767 incl. VAT excluding any discounts.

A 10% discount is offered on groups of more than 3 delegates. Should you wish to register at the discounted rate please contact Marc Ashton on 082-561-1585 or e-mail marc@rival.co.za
WALKING THE LABOUR LAW TIGHTROPE

Implementing Labour Law Productively

Workshop date/time: Friday 23 July 2010 Registration: 08H45 Close: 16h30 

VENUE:   SA Chamber of Commerce and Industry, 24 Sturdee Avenue,
                             Rosebank, Johannesburg.

SEMINAR PURPOSE AND CONTENT
In South Africa the biggest challenge for employers is the balancing act of achieving a productive workforce without infringing upon the countless powerful labour laws protecting employees.

Via a comprehensive case study laden with practical learning points workshop delegates have fun while gaining crucial insights from the wrongdoings of a fictitious company called Mile High Airlines. They receive detailed input on how to balance labour law compliance with the effective management of the following functions:

MANPOWER PLANNING RECRUITMENT, SCREENING AND SELECTION
JOB DESCRIPTIONS AND PERSON SPECIFICATIONS
JOB ADVERTISEMENTS
REFERENCE CHECKING
INTERVIEWING
PRE-EMPLOYMENT TESTING
RECRUITMENT AND SELECTION LEGISLATION
PROBATION AND INDUCTION
ACTING APPOINTMENTS AND LEGAL PITFALLS
RETENTION OF KEY STAFF
TRAINING AND DEVELOPMENT DESIGN AND IMPLEMENTATION
CAREER PATHING AND SUCESSION PLANNING
EFFECTIVE SUPERVISION
PERFORMANCE IMPROVEMENT, MOTIVATION AND TEAMWORK
EMPLOYMENT EQUITY AND DISCRIMINATION
DISCIPLINE AND DISMISSAL
FAIRNESS AND THE CCMA

About the presenter:
Ivan Israelstam, CEO of Labour Law Management Consulting
Ivan Israelstam has 14 years experience as a litigator at CCMA and 4 years as a CCMA Commissioner. He writes numerous labour law columns in major publications and is the author of labour law books. Ivan chairs SACCI’s Labour Relations committee and gives conference, seminar, radio and TV talks.

Arbitrators very often find dismissal to be unfair and order the employer to pay the employee compensation. In such a case the employer could  take the matter on review to the Labour Court.

However, the employee does not have to wait for the review case to be heard before claiming his compensation payment. That is, the employee has the right to apply immediately for confirmation of the award and for a Writ of Execution. Through this writ the employee gets the Labour Court to instruct the Sheriff of the court to take possession of the employer’s property and sell it in order to make up the amount awarded and to then give the money to the employee.

This means that, as soon as the employer gets wind that the employee is applying for a writ of execution, it needs to put in another application to court. That is, in order to prevent the writ from being carried out and the employer’s property from being sold in execution, the employer needs to make a special application for the writ to be stayed.

If the Sheriff ignores the stay application then the employer needs to make an urgent application for the writ to be stayed.

In view of the uncertainty of the law, the complexities of the legal procedure and the fact that there is a lot at stake, employers and employees are advised not to enter into this terrain without substantial legal expertise at their fingertips.

For further information please contact Ivan Israelstam on (011)888-7944 or 0828522973 or on e-mail address: labourlaw@absamail.co.za or go to: www.labourlawadvice.co.za

Arbitrator misconduct can and does occur in many different forms including:

Bias
In the case of Best Boland Motors vs Dispute Resolution Centre & others (CLL Vol. 13 No. 5 page 47) the Labour Appeal Court found that the conduct of the arbitrator suggested bias because the arbitrator and the applicant employee held private discussions.

Aggressive Interrogation
In County Fair Foods vs Theron NO & others (2001, 2 BLLR 134 LC) the Court found the aggressive manner in which the arbitrator questioned witnesses to be unacceptable and therefore set the arbitrator’s decision aside.

Ignoring of Evidence
In the case of Sasko (Pty) Ltd vs Buthelezi & others (1997, 12 BLLR 1639 LC) the arbitrator failed to take into account that the employee had refused an offer of promotion. The Labour Court found this to be a breach of the arbitrator’s duty.

Misconstruing Evidence
In the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR 493 LAC) the arbitrator found that the employee had not called a colleague a “kaffer”. However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee had called his colleague a “kaffer”. The Court found this amounted to a gross irregularity.

It is difficult to persuade a judge to overturn an arbitration decision. Parties should not apply to Court for a review without the benefit of proper legal expertise.

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Author may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: labourlaw@absamail.co.za. Go to: www.labourlawadvice.co.za.

To attend our May 2010 seminars in Cape Town and Johannesburg on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.

Part of the reason for this misconception is the wording of Schedule 8 of the Labour Relations Act which states that the hearing need not be a formal one. However, the same item requires that the employee be allowed the opportunity to state a case in response to the allegations. The courts have frequently interpreted the latter requirement to mean that the accused employee must be given the right to an unbiased chairperson, to testify, to bring documents, call witnesses and cross examine evidence brought against him/her.

Thus, in order to be able to comply with this the employer needs to set up a formal hearing, the record of which becomes part of the evidence at the CCMA. Because it is at the CCMA where the employer will be required to prove that it complied with legal procedure when dismissing the employee.

Furthermore, where an employee is suspected of poor performance it is not enough to have an informal discussion with the employee about the problem and then to fire him/her the next week. The LRA sets down specific steps to be followed before a dismissal for poor performance can even be considered.
Again it is not practical to comply properly with such stringent requirements in an informal manner because informal processes are difficult to control and to prove.

Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.

Ivan Israelstam – Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: labourlaw@absamail.co.za. Go to: www.labourlawadvice.co.za

To attend our seminars on CHANGES AND DANGERS IN LABOUR LAW on 12 March 2010 (JHB) and 14 May 2010 (Cape Town) please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.

Disputes dealt with by the CCMA and bargaining councils include unfair dismissals, unfair labour practices and unfair discrimination including sexual harassment. Sometimes these disputes arise because employees fabricate such complaints. However, more often it is because employers either do not know or understand labour law, are not expert in implementing the law or believe that they can get around the law.

Some employees, especially those at higher levels, prefer to ignore unfair treatment at the hands of employers. This is because these senior employees and executives:

• Are intimidated by the employers and their teams of lawyers; and/or
• Do not know how to gather proof of their complaints
• Do not want the hassle of a CCMA process; and/or
• Are scared that prospective new employers may be put off by an employee known to have taken an employer to the CCMA.

As a result the employee or executive gives up and finds another job. They forget that, by doing so, they have allowed unfair action to be swept under the carpet and may have sacrificed a number of years of service. As a result of the employee’s reluctance to take up the matter many types of unfairness are perpetuated. These include, amongst others:

Sexual harassment
Forced resignations
Unfair retrenchments
Firing for misconduct
Poor performance terminations
Scape-goating
Nepotism
Favouritism
Victimisation
Making room for “buddies” or relatives
Cutting of pay
Reduction or removal of benefits and allowances
Verbal abuse
Threats
Assault

Despite the above types of mistreatment many employees either resign and drop the matter or accept a small settlement to keep quiet. Strangely enough this capitulation occurs most frequently in the R10 000 to R50 000 per month remuneration bracket. This is possible because employees at this level are not unionised or do not want to tarnish their reputations by taking the employer to the CCMA.

However, most employers who settle do so because they fear the CCMA, want to avoid hassles, time wasting and costs, do not want their name dragged through the mud or are unsure of the strength of their case.

Employees often accept a settlement because they:

• Are nervous about the possibility of having to represent themselves at CCMA
• Want to avoid confrontation
• Are concerned about their reputations
• Want a quick settlement and fear the cost of litigation

Where there is a financial settlement the employee usually gets the short end of the stick by accepting a one-month to three-month settlement package. However, it is very often in the interests of both the employee and the employer that a fair settlement is reached. The party that wins the settlement negotiations will be the one who:

• Has the wherewithal to provide proof of his/her/its case
• Best understands labour law
• Has access to a labour law expert with strong negotiation skills.

Should the employee or the employer want to achieve a favourable out of court settlement the above three ingredients are available in the market. For example, a reputable labour consultant will not only be able to negotiate a favourable settlement but should be able to do so at a reasonable hourly rate or contingency fee. A favourable settlement for an employer is up to three months; but a favourable settlement for an employee would be six to 12 months remuneration.

Ivan may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: labourlaw@absamail.co.za. Go to: www.labourlawadvise.co.za.

To attend his 12 March 2010 seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.

An arbitration hearing is very similar a court case. At such hearings employers are charged with unfair practice. However, many employers lose these cases because they ignore the document instructing them to appear. The CCMA notice summoning the employer to the hearing is a relatively harmless looking document. This is because it:

-    Is not served by the Sheriff of the Court

-    Most often arrives on the employer’s fax machine like any ordinary correspondence (and then often gets filed!!)

-    Is not bright pink like a traffic ticket or summons

-    Is not written in bold capital letters

-    Is not headed “SUMMONS”

-    Does not make it clear that an arbitration is a type of court case where a decision seriously damaging to the employer could be made

-    Does not emphasise that you are likely to lose the case if you fail to appear. That is, while the notice states that the proceedings will continue if the employer is absent, this comment is typed in small print and does not make it clear that a default judgement is likely to be made against you.

A default award is a legally binding decision that the CCMA arbitrator may make in the absence of the employer. That is, section 138(5)(b) provides that, if the employer does not attend the arbitration hearing the CCMA can continue with the hearing and make an award based purely on what the employee tells him/her.

A ‘default award’ means that:

-    any evidence that is missing cannot be taken into account in the arbitrator’s award (judgement)
-    if the employer is not present then all of his/her evidence will be missing
-    the arbitrator is not required to postpone the proceedings in order to give the employer a chance to bring its evidence
-    the only evidence that the arbitrator can take into account is that of the employee who may well lie, exaggerate or leave out crucial facts in order to ensure that the award is in his/her favour.

For example, the employee’s evidence might consist merely of a short statement explaining why the dismissal was without good reason. For instance the employee might say that he/she was not even at work on the day the money was stolen. Or the employee might say that he/she was fired without a disciplinary hearing. The arbitrator could accept this as proof of an unfair dismissal. This is because, if the employer is absent, he/she cannot dispute the employee’s testimony and the arbitrator is entitled to accept undisputed testimony as fact.

For example, in the case of GIWUSA obo Nogaga vs Cetronics Security Guards (2004, 1 BALR 30 CCMA) a security guard told the CCMA that he had been tricked into signing a resignation. Even though the arbitrator found the employee’s evidence to be vague and inconsistent the arbitrator still:

-    Held that the employer’s conduct constituted dismissal
-    Found that the dismissal was substantively and procedurally unfair
-    Reinstated the employee with retrospective effect to the date of the dismissal.

The reason for this decision despite the employee’s poor evidence was that the employer was not at the hearing to deny the allegations!

The reason for such default judgements include the fact that employers often do not have the legal knowledge, experience and skills to understand the law and its hidden and immensely dangerous provisions. In such circumstances the use of expert legal advice becomes of paramount importance

To attend our 12 March 2010 seminar on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.

Poor performance of work by employees is a major source of unproductive and unprofitable business in South Africa. It is therefore a major source of frustration for employers. This is more so because employees who perform poorly all well protected by labour law. Even if you have proof that the employee is under performing there is a mine field of procedures you must follow before you discipline and/or dismiss the employee.
Item 9 of the Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act (LRA) states that “Any person determining whether a dismissal for poor work performance is unfair should consider –

(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably have been expected to be aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.”

In Duff vs McGregor (Pty) Ltd (2004, 1 BALR 21) the arbitrator blamed the employer for the employee’s poor sales performance because the employer could not prove that the targets set were appropriate and attainable. The dismissal was found to be both substantively and procedurally unfair.

The above laws and findings make it crystal clear that every employer must:
draw up attainable performance targets for each and every employee
Induct every employee as to these targets

Keep proof that the above has been done

Ensure that their managers undergo intensive training by a legal expert in the setting and enforcement of performance standards.

Even if the law did not require employers to formalise workplace rules it would be essential for employers to do so as part of a system for keeping order in the workplace. Properly designed and clearly communicated rules serve to set the standards of conduct expected from employees.

The law obliges employers to create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood.

Two things that an employer is required to prove when it is dragged to the CCMA are that:

• the rule that the employee is alleged to have broken existed at the time of the alleged offence

• the dismissed employee knew he/she was breaking the rule when he/she committed the misconduct.

Therefore, every company, partnership, sole trader, organisation needs to:

- draw up its own Disciplinary Code
- Induct every employee as to its Disciplinary Code
- Keep proof that the above has been done so that, if a dismissed employee claims at the CCMA that he did not know the rules, the employer can prove that this is an invalid excuse.

A Disciplinary Code is an internal document devised by the employer in which the rules of conduct are spelt out and in which the suggested penalties for breaking these rules are listed. As required by Schedule 8 of the LRA, these penalties need to be appropriate in the light of the seriousness of the offence.

When designing the Disciplinary Code for your organisation remember:

• The offences need to be clearly described

• The rules need to be reasonable and fair

• They need to be realistic so that it is possible for employees to follow them

• You should try to include all those rules which pertain specifically to your company/organisation

• To communicate the code to all your employees in a language they understand

• You should explain the reason for rules which employees could have trouble in understanding. For example, you may prohibit your employees’ from receiving visitors at work. If your reason is that visits interrupt work or that security could be compromised you should explain this

• To try to get buy-in for the rules from your workforce by consulting them. That is, you should draw up draft rules and then ask your employees for their views. You should not make the final decision on the rules before consulting your employees.

Assign a labour law and industrial relations expert to:

- Check your Disciplinary Code for legal defects

- Add in rules that are missing

- Train your management in the interpretation and application of the code.