Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Consistently poor conduct normally reflects a management that is either unskilled or unwilling to manage employee conduct.
That is, every manager and supervisor must know how to:
- Quickly recognise rebellious or demotivated employees
- Guide wayward employees along the correct path
- Institute swift, timely, firm and appropriate disciplinary action that is not only effective but is also seen as fair by the CCMA or bargaining council.
Managerial failure in these areas frequently results in employees getting away with serious misconduct.
In Faltyn vs Buffalo Flats Community Development Trust (2005, 2 BALR 183), Faltyn was dismissed for losing cash belonging to the employer. The employee alleged that the cash he had collected the previous day had been stolen from him. He had left work early without permission to do a personal errand and had been mugged the following morning on the way to work while he still had the cash in his possession.
The CCMA arbitrator accepted that:
- The employee could have handed in the money on the day it had been collected.
- The employee should have spoken to his employer about his personal problem requiring him to leave work early.
- The employee deserved to be dismissed.
Despite this the arbitrator ordered the employer to pay the employee financial compensation. This was because the same manager who had decided to charge the employee also presided over the disciplinary hearing. The fact that the manager had made the decision to charge Faltyn meant that the manager would have had knowledge of the incident prior to the hearing. For the same manager to then preside over the hearing rendered him a potentially biased chairperson because his prior knowledge of the incident could have influenced his judgement.
This is one of thousands of cases where such a technical error on the part of a manager has cost the employer money and has benefited an employee who was clearly guilty and deserving of dismissal. Often, this kind of error is the fault of the manager because the manager should have known better.
More often than not it is the fault of the manager’s employer for having failed to:
- Train the manger in the requirements of labour law
- Give the manager access to labour law experts who could advise the manager on how to deal with the case in question.
