Employees & Misconduct

The golden rule: “If it’s not documented... it didn’t happen”.

In the workplace, there are bound to be ups and downs, tense situations, mistakes, negligence and difficult conversations. When a situation such as this, presents itself, the employer has an obligation to deal with the matter accordingly, enabling all parties to move forward with a clearer understanding with regards to what is required in the future...

Often employers find themselves in a situation where an employee has made numerous errors or mistakes or behaved inappropriately on more than one occasion, it is at this point that I receive the phone call, from an infuriated manager who “just can’t take it anymore!” and “I want them gone!”.

This of course, places the employer in a very vulnerable position, let me explain why...

The Code of Good Practice explains that the Company or employer has an obligation when dealing with misbehaving employees, to give clear feedback to that employee, explaining what it is they did that was incorrect and how they should manage similar situations in the future. The reason for this is to provide the employee with an opportunity to improve going forward and in essence giving them another chance to do better.... strike 1... strike 2.... strike 3....

It is for this reason that a lot of emphasis is placed on disciplinary record, when deciding whether or not to dismiss an employee. For instance, if an employee has been insolent, rude, impolite, disrespectful to a manager once, the chance of being dismissed is far less than if the person had received a verbal warning for a first offence, a written warning for a second offence and a final written for a third offence. Once an employee is on a final written warning it shows that the Company has given this employee ample opportunities to improve, knowing perfectly well that the Company was viewing his or her transgressions in a serious light. It shows that the Company is dismissing this employee as all other avenues have been exhausted. Don’t get me wrong, there are most certainly offences that are dismissible, even as a once off isolated incident, examples of these include, assault, dishonesty etc, aspects that result in an irrevocably damaged employment relationship and a break in trust between employer and employee, but even these dismissals should take into consideration length of service and disciplinary record.

So remember, to ALWAYS document the warning, no matter how trivial it may seem at the time, there may be a situation that presents itself in the near future, and instead of it being a matter of “the straw that broke the camels back...” you will be prepared, having documented evidence that you have addressed the exact issue with the employee on more than one occasion. There is also no need to act in a purely punitive manner, a simple follow up e-mail following a discussion, will take two minutes from your busy day, but may end up saving the Company from a pricy CCMA arbitration award a few weeks down the line...

Remember, when addressing concerns with your misbehaving people, “If it’s not documented... it didn’t happen”.

Compiled by Nikki Auret 

www.capetownlabourconsultants.co.za

Why use Cape Town Labour Consultants?

Why use Cape Town Labour Consultants?

Cape Town Labour Consultants assist small to medium sized enterprises in labour matters, ensuring that your organisation is safeguarded from risk as far as reasonably possible. South African labour laws are tricky and pulling in a Labour Consultant who specialises in such matters on a daily basis can not only put your mind at ease when it comes to repercussions but can ‘hand hold’ managers through these processes and assist in ensuring these matters are handled legally and in line with legislation and in doing so, empowering your managers.

CPTLC can assist your business with any and all HR and IR matters but specialise in the following;
1. Chairing disciplinary hearings
2. Dismissals as a result of operational requirements (aka retrenchments)
3. CCMA Cases

Chairing disciplinary hearings

In order to hold a procedurally fair disciplinary hearing, a neutral 3rd party chairperson is preferred to ensure an objective outcome. Our consultants will come into the hearing and first of all explain the procedure that will follow so that all parties are comfortable and aware of what to expect. The rights of the employer as well as that of the employee will be explained prior to commencement of the enquiry.  The Consultant will listen to both sides of the story, giving opportunity to be heard, to call in any witnesses and allow for cross questioning. Closing statements as well as mitigating and aggravating circumstances will be taken into consideration and a full findings and sanctions report will be submitted as a recommendation to the employer. The nice thing about using Cape Town Labour Consultants is that the outcomes are run passed the CCMA with reference number prior to submission as well as the fact that the decisions made are based on recent case law substantiating the reasoning. All of the above, allowing for a peaceful night sleep knowing that the employees rights were respected and the Company safeguarded from risk.

Dismissals as a result of operational requirements (aka retrenchments)

Unprofitable businesses take strategic decisions to reduce costs and more often than not these costs include staff costs, resulting in retrenchments. However, a failure to follow the correct procedure can have the opposite effect to that of cost saving. Unfairly retrenching employees can land the organisation in hot water at the CCMA resulting in compensating those employees for unlawful terminations. The key here is to ensure the steps are correctly followed as laid out in the Labour Relations Act. Employees are to be consulted with regarding operational requirements dismissals (retrenchments), selection methods discussed, timing of dismissal, number of employees affected etc. Calling in a consultant from Cape Town Labour Consultants, who will not only provide you with all the necessary paperwork but will also handle the process from the beginning to the very end. Ensuring that the employees are treated with dignity and receive what they are legally entitled to as well as assist the Company in managing the process in such a way that safeguards the enterprise from repercussions. Retrenchments are never a pleasant situation to be faced with, but having the right professional with the right skills and experience can make the process smooth and bearable ensuring that all parties involved are fully aware of their rights at all times.

CCMA Cases 

Although “prevention is always better than cure” and the better course of action would be to involve our experienced labour consultants in disputes earlier rather than later, to avoid unpleasant situations, CPTLC does assist Companies in the compilation of arbitration documents. These documents are put together to substantiate the Company’s case when it comes to the reasoning of their decisions. Packed with legislation relating to dismissals as well as case law implicating related incidents and their outcomes.

So call Cape Town Labour Consultants today and make your problems ours...

It’s a small price to pay for peace of mind!

082 979 0684
021 554 4833