One would expect that, with the passing of time, employers would become more experienced in how to treat employees in line with the law. However, we have been asked to assist in a fast growing number of cases where employers have breached labour law and have ignored their own policies.

Only after having been taken to task do they seek expert labour advice. It is understandable that employers do not always have the budget to hire labour law experts. However, it is wiser for them to do so before making errors than to have to go to the much greater cost of hiring such expertise after their errors land them at the CCMA. The type of errors made by employers include:

• Poor investigation of alleged offences

• Unfair discipline due to insufficient proof and serious breaches of disciplinary procedure

• Unfair promotion and demotion practices

• Grossly insensitive handling of staff-related problems

For reasons of confidentiality I will not mention the names of the parties.

In the first case institution A investigated a senior administrator, named N for five alleged breaches of institutional procedure dealt with in the institution’s guidelines. As the allegations were serious the investigation was carried out by another senior member of management named W who alleged that, as a result of the five infractions, N had incurred substantial costs for institution A.

However, at his disciplinary hearing N was able to bring proof of the fact that he was not guilty of any of the five infractions. After all evidence was presented N was found not guilty. The facts brought by N to clear his name had all been freely available at all times to W, the investigator. Before the hearing N had in fact submitted a  detailed written explanation of the true facts of the case. Despite having access to the facts before the disciplinary hearing W nevertheless failed to look at or consider them. W therefore not only ended up with a red face at the hearing but in fact incurred, for the academic institution, a great deal of unnecessary cost. The investigator was therefore guilty of the very offence she had erroneously brought against N! This would have been avoided had the institution spent a small amount of money training its officials in how to conduct investigations properly.

The second case is one where employee G was promoted after a series of panel interviews chose him as the best person for the job at a well-known academic institution, B. Two weeks after G was given her signed contract of promotion, and two weeks after he took up his new post he received a letter cancelling his promotion. He was ordered to return to his old post and to attend a new panel interview. He received this written instruction because one of the unsuccessful candidates for the post lodged an objection to G’s promotion, saying that the selection process was flawed.

Without properly investigating the matter to establish the validity of these allegations the head of the institution demoted G without even consulting with her on the matter. As a result of this insensitively implemented, unnecessary and unfair demotion the institution had to pay G a settlement amount exceeding one year’s remuneration. The institution also lost the services of an excellent administrator employed in a key position and narrowly avoided serious negative publicity.

In the third case employer C promoted an employee, named D five times in five years. At the end of the five years, when things began going wrong, she had been promoted to the position of acting head of one of the employer’s branches. After more than a year of meritorious service at this level, D had been given reason to believe that her acting position would be made permanent. Instead, without giving any understandable reason, employer C demoted D all the way down to the position she had filled five years earlier. There was no retrenchment procedure in progress and no disciplinary hearing. There was only a “strategic decision” made at top level to redeploy C.

In the absence of a fathomable reason for this startling decision one wonders whether D had a powerful enemy in the institution. Alternatively, D may have made some mistake in her work or conduct. However, as she was never brought to a hearing to face such charges, C had no right to implement the demotion. The substantial cost and time wasted in the thrashing out of this dispute could have been avoided if the decision makers had been trained in the laws of demotion, discipline and fair practice.

Many companies and institutions are in the public eye because of the nature of their business. They therefore need to avoid unnecessary costs and to ensure that their reputations are not damaged due to actions of senior officials uneducated in the science of labour law management.

They can only achieve this by proactively utilising the expertise of labour law specialists versed in the practice of labour legislation.

To buy our e-Book, WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawadvice.co.za

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za. This article first appeared in The Star.