You must prove dismissed employees knew the rules
Many HR and IR professionals are frustrated because management has still not come to terms with the fact that they cannot just fire their employees without good cause: Section 188(1) (a) of the Labour Relations Act makes it clear that you, as an employer, cannot fire an employee without good cause.
Carry out a misconduct investigation before you even think of firing an employee…
… So you can:
- Establish that the allegations against the employee do not hold any weight and that there is no reason to hold a disciplinary hearing; or
- Gather sufficient proof that the employee is guilty of the allegations.
Always ensure that any dismissals are fair
If your chairperson considers dismissing the employee after hearing all the evidence, ensure the dismissal is fair because if the employee takes the matter further, you will have the onus of proving the dismissal was fair.
What happens at the CCMA during an unfair dismissal hearing?
1. The tables are turned. You, as the employer, become the accused just like a defendant in a criminal trial. You are summoned to the CCMA because the employee charges you with unfair dismissal.
2. To make matters much worse, you are considered guilty until you prove yourself innocent! The employee does not have to prove that the dismissal was unfair. You have to prove that the dismissal was fair.
3. You have to present your case first. This means that you may have to give your evidence before knowing what evidence the employee will bring.
How do you convince the arbitrator that the employee deserved to be dismissed?
For the dismissal to be judged substantively fair, you must prove four things. You must show that:
1. The employee did commit the misconduct; AND
2. The rules were reasonable; AND
3. The penalty of dismissal was a fitting one in the light of the severity of the offence; AND
4. The employee knew or should have known the rules.
Many HR and IR professionals try to prove the first three factors. But how much attention do you pay to the fourth one?
One employer who appears not to have done so was the City of Cape Town. In this case, the employer fired a Ms Kotze for using racially derogatory language. The arbitrator found that Ms Kotze did use this language and was guilty of using ‘insensitive and racially-charged language’. Despite this, and despite the extreme political incorrectness of using such terms in South Africa, the arbitrator found that the dismissal was substantively unfair. He ordered the employer to reinstate Ms Kotze and pay her back pay of R94 000.
There were a number of reasons for this decision, including that the penalty of dismissal was too harsh. But the arbitrator also found that the employer had been remiss in failing to inform Ms Kotze that such conduct was unacceptable. He said that the employer should have issued a disciplinary code so that staff would know the rules.
So be warned HR and IR professionals: You cannot assume that your employees know the rules. You have to codify all your rules and ensure that every employee has received and understood them.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
