Tag: Ivan Israelstam

The Compensation for Occupational Injuries and Diseases Act (COIDA) requires the state’s Compensation Commissioner to compensate employees for losses resulting from workplace injuries. This applies when an injury complies with the legal definition. Some employers also acquire workplace injury cover from private insurance companies. However, these companies sometimes reject claims and create unnecessary workplace slip-ups for employees seeking compensation.

Angry employers too often fire errant employees in anger. However, there is no place for anger in the implementation of discipline. This is because the resultant hasty action is likely to trip the employer up at the CCMA. This risk is central when firing employees in anger. A case in point is that of Marcel Pharmacy (Pty) Ltd vs Justine Afrika (SAFLII 11 March 2026, Labour Court case NO: C337/2023). Here, the employee switched off the lights of the pharmacy where she worked.

The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’. Gross insubordination can be a ground for dismissal. However, the employer has the onus of proving that the act was, in fact, one of insubordination and that it was gross (very serious). An employer’s belief that insubordination has occurred can easily trigger an emotional response from the executive who issued the instruction.

When arbitrators and judges assess whether a dismissal was fair, they must apply the objective test. In simple terms, they must decide whether a reasonable person would conclude that the conduct justified dismissal. This assessment must remain unemotional and evidence-based. However, misunderstanding the objective test often leads to incorrect conclusions.

One category of employees who are well protected under the Employment Equity Act (EEA) is those who are ill or injured. Employers cannot mistreat employees who are ill or injured. If they do, they risk serious consequences. This reality highlights the hidden cost of mistreating ill employees.

The Basic Conditions of Employment Act (BCEA) entitles employees to certain minimum rights. These rights include remuneration for work done, leave and lunch breaks. Where the Department of Employment and Labour (DOEL) finds that an employer breaches an employee’s rights, it may issue a Compliance Order. The Labour Court can enforce this order. Non-payment of commission can also trigger regulatory and legal scrutiny.

Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even in the absence of provocation, dismissal may still be unfair. This distinction is critical for employers navigating strike-related discipline. One factor that can bedevil an employer’s case is inconsistency in the decision to dismiss.

Employers too often base appointment decisions on private agendas rather than employment policy. As a result, fairness to applicants suffers. Although management prerogative exists, the law limits its reach. It must operate within principles of reasonableness and fairness. Therefore, management decisions must rest on proven facts.

Section 187(2)(b) of the Labour Relations Act (LRA) provides that a dismissal may be fair if the employee has reached the normal or agreed retirement age. This means termination based on the employee’s age might not constitute unfair discrimination if the employee has reached retirement age.This distinction is important. It is crucial when considering dismissals that occur after an employee has passed retirement age.

Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even where there has been no provocation, such dismissal can be found to be unfair.