Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Expertise in conducting dismissals is required in a number of areas including:
- Assessing whether what the employee is accused of actually constitutes an offence
- Ensuring that the employee gets a fair opportunity to answer to the charges
- Arriving at a fair verdict based on the facts presented
- Ensuring that the penalty is a fair one
- Preparing a watertight case to take to the CCMA to persuade the arbitrator that the employee deserved to be dismissed
- Presenting a persuasive case at arbitration.
None of the above tasks is easy and failure with them can prove extremely costly. For example, in the case of Fidelity Cash Management Service vs CCMA and others (2008, 3 BLLR 197) the employee was dismissed failing to arrange a back-up vehicles, refusing to take a polygraph test and for twice appearing late for his disciplinary hearing.
The arbitrator found that the employee was not guilty of the charges brought against him and ordered the employer to reinstate the employee with retrospective effect.
The Labour Appeal Court found that:
- The employee had been told that he did not have to undergo the polygraph test and that it was therefore not fair to dismiss him for refusing to take it.
- The employee had the right to arrive late for his disciplinary hearing because it was his choice to waive his right to defend his case.
- It had not been part of the employee’s duties to arrange back–up vehicles; so he could not be punished for failing to do so.
- The CCMA arbitrator’s decision to reinstate the employee was reasonable.
In this case the persons acting for the employer failed to convince the Court that, despite it not being in the employee’s job description, it had become the employee’s normal duty to arrange back-up vehicles. Had proper evidence of this been brought the outcome may well have been different.
It cannot be said unequivocally that the blame for the employer’s loss of the appeal should be placed completely at the door of those who presented the employer’s case in court. It appears that the root of the problem could have stemmed at least partly from the preparation for the disciplinary hearing.
The cost to the employer in this case included the expense of the hearings at CCMA, Labour Court and Labour Appeal Court as well as the cost of the back pay required by the reinstatement order.