Labour law should not be an afterthought

28 Experts Warn Against Pitfalls When Firing an Employee

South African labour relations have, over time, become dominated by a large number of advisors. It is important that an organisation guard against poor advice which, once implemented, will result in unintended risk and cost to business down the line. Adding to the problem is the fact that many employers/organisations do not seem to believe labour law is very important.

Most common areas of mistakes include (but are not limited to):

  • Probation (how to handle and terminate the relation);
  • Suspension or no suspension (how to deal with it);
  • Formulating allegations (“charges”);
  • Emotional employers (not removing emotion when disciplining an employee);
  • Failing to properly investigate a misconduct; and
  • Failing to prove the allegation/s (charges) against the employee.

Dismissals are a very sensitive and problematic area. This often requires going through a very elaborate process and using extensive resources.

Many jurisdictions require employers to have just cause for terminating employment and to follow a fair preceding procedure. The prescribed local procedure varies from merely allowing the employee an informal opportunity to state a case, on the one extreme, and a quasi-judicial process involving presiding officers, employer-prosecutors, extensive leading of evidence and cross-examination, on the other end of the spectrum. However, critical in most disciplinary inquiries are the fundamental questions of (1) did the employee do something wrong and, if so (2) what sanction should be imposed?

In respect of the first question, we often see or read in the law reports of employees adopting an attitude of “Well, prove it.” The difficulty with this approach is that employees fail to appreciate the difference in proving matters using the civilonus versus the criminalonus. Internal disciplinary matters are considered on a balance or preponderance of probabilities. This essentially means: “which of the various versions is more probable?” An employer is not required to prove beyond a reasonable doubt that an employee committed misconduct (the criminal lawonus used by the state in prosecuting criminals).

A presiding officer or manager considering whether an employee broke workplace rules has to evaluate the evidence and argument available, and then determine which version is more probable. There may still be reasonable doubt as to whether the employee committed the misconduct, but based on the probabilities the manager or presiding officer should be comfortable that the employee probably committed the offence.

Employees folding their arms, waiting for the employer to prove the case against them, are regularly surprised when the chairperson of the inquiry rules against the employees. Where the employer puts up a plausible case, the employees are obliged to present a version that is more probable if they wish to escape a finding that they committed misconduct.

The next common mistake made by many employees in internal hearings is an unwillingness to acknowledge their mistakes or wrongdoing. Dismissing employees is the final act in managing the risk posed by errant employees to the business. Where an employee is found to have committed misconduct, the presiding officer has to consider the risk posed to the organisation of the employee repeating the misconduct. If employees are unwilling to acknowledge wrongdoing and recommit themselves to the values of the company, the lingering doubt will be whether the employee will contravene the rule again in future.

In practice, it is difficult to convince an employer to take a chance on the employee and extend a lifeline when the employee remains steadfast that he/she did nothing wrong – even after the hearing’s finding to the contrary. Showing true remorse and pledging full support to ensure that such behaviour is not repeated can go a long way in comforting an employer that retaining the employee in service will not result in undue risk.

Perhaps, when we hear Harvey Spectre advising his clients to say: “Sorry, I made a mistake and will never do that again,” we will see employees changing their approach during internal disciplinary matters. Clever tactical defences may look spectacular on the big screen or television butdoes little to strengthen the relationship between employer and employee.

The public sector is a particularly striking example of the dismissal paralysis that has developed with time. We know the obvious examples in recent times. There are also numerous examples of individuals who are placed on suspension, with pay – at the taxpayers’ expense, and remain on suspension for a long time before any action is taken. This is an unnecessary expense to the state.

This is contrary to the intentions of the Labour Relations Act (1995), which was intended to simplify internal processes and do away with the complex ones that had existed prior to 1995. The old processes were intended to be dismantled and it was expected that it would become easier for business to conduct itself and deal with disciplinary issues. The intention was for the processes to move out and fall into the province of the Commission for Conciliation, Mediation and Arbitration (CCMA) and other labour tribunals. However, this has not always happened and the public sector is a classic example.

The problem is not with the Act but rather the way that people have applied the Act. The Act was designed to encourage an internal process that is quick and fair. Should the dismissal still be in dispute the matter should be dealt with by the CCMA so that an independent third party can adjudicate the dispute.

Time and effort were meant to be spent post-dismissal as opposed to pre-dismissal. One of the reasons for this failure is that the mindset has not necessarily transformed from the perspective of trade unions and there was no incentive for them to make the change. For example, trade unions conclude agreements with municipalities, universities and even private business that provide for certain internal processes that need to be complied with before a dismissal.

That constitutes a process that must be complied with in addition to the requirements of the law. This means that you have lawyers unnecessarily involved in internal processes and a ‘criminal’ style process thatplays out internally – all at the business’, taxpayers’ or shareholders’ expense. This is all unnecessary.

All too often these “further obligations” are historic in that they were put in place prior to 1995 or simply persisted with because of a failure to receive appropriate practical advice. While the courts are trying to unravel the tangled threads, agreements that are concluded with unions or that are provided for in employment contracts come back to create more of these unnecessary and undesirable processes.

This is something, in my experience, employers do not fully appreciate and they need to re-examine their current position, update employment contracts and bring them into line with the current law…the Labour Relations Act must be the foundation upon which labour relations are conducted.

Strike action

Another example that illustrates that both the public and private sectors need to take labour law very seriously is the fact that strike action and its consequences often stem directly or indirectly from unsatisfactory labour relations. Furthermore, strikes have become increasingly violent and costly.

Strikes often reflect not just the dispute but also underlying social issues and they are characterised by violence rather than a peaceful withdrawal of labour as a part of the negotiation process. In addition, these strikes can result in mass dismissals which are then disputed and take years to conclude in court.

The costs in back wages for say 200 “blue collar” workers that are adjudged unfairly dismissed four years ago can run into millions of Rand and will certainly play havoc with a company’s profitability or a public sector entity’s budget. This is a reality.

Perhaps labour law should not be an afterthought.

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