While acting as a CCMA arbitrator and as the chairperson of disciplinary hearings over the past years I have noted numerous reasons why employers lose dismissal cases at the CCMA. In many cases the charges should never have been brought in the first place because:

• The employer took disciplinary action for personal reasons rather than for failing to comply with the employer’s rules or performance standards

• There was insufficient evidence against the accused to merit a guilty finding or to justify a dismissal

• There was sufficient evidence but the employer failed to:

• present all of it at the disciplinary and/or arbitration hearing

• present the evidence in a proper manner to enable the chairperson/arbitrator to find in the employer’s favour

The basic reason for poor presentation of evidence is the failure of the employer to prepare properly for the disciplinary hearing or arbitration hearing. The reasons for this failure include:

• The employer does not want to spend the time necessary to carry out proper preparations for the hearing

• The employer does not know how to prepare properly for a disciplinary and/or arbitration hearing.

However, where the manager responsible for bringing the case on behalf of the employer fails to do so properly the likelihood is that the CCMA arbitrator’s decision will go against the employer. This is because the employer has the full onus of proving that the employee was guilty and that the misconduct merited dismissal as opposed to less drastic and more corrective disciplinary step.

For this reason it is vital that all managers and other staff responsible for discipline acquire a full understanding of how to prepare for and how to present a case at a disciplinary or arbitration hearing. The steps for preparing a case include:

• Assessing the allegations to establish whether they have been brought in good faith or whether the accuser has a hidden agenda

• Investigating the circumstances of the alleged incident(s)

• Assessing the circumstances leading up to and surrounding the alleged incidents of misconduct

• Evaluating the evidence gathered in the investigation to establish whether it constitutes proof or not

• Formulating the charges to be brought against the accused at the disciplinary hearing

• Establishing who will present the evidence at the disciplinary or arbitration hearing

• Deciding which witnesses and other evidence will be used

• Preparing questions to be used in order to cross-examine the evidence brought by the accused

• Preparing a draft closing statement.

In the unreported CCMA case of Mahlangu vs Hernic Ferrochrome the employer dismissed the trade union’s chief shop steward for unauthorised absence from his workstation and falsification of timesheets. During the disciplinary hearing the complainant did cross-examine the accused employee’s evidence but certain answers given by the accused and his witnesses were unclear. The complainant did not obtain clarity and this left some of the key evidence against the accused in a state of ambiguity. Despite this, the chairperson found the chief shop steward guilty and dismissed him.

As the employee was one of the trade union’s senior office bearers the union took the matter to the CCMA on behalf of their member. Preparation for the arbitration hearing was a highly complicated exercise because of the ambiguities of the evidence presented against the employee at the disciplinary hearing. This necessitated the employer hiring a labour law expert in order to deal with these added complexities of the case. While the CCMA eventually found in the employer’s favour it was a very close call. Had the labour law expert not been able to do a great deal of fancy footwork in papering over the cracks of the disciplinary hearing the chief shop steward would have been reinstated with many months back pay. Such a victory for the union could have resulted in a disastrous industrial relationship at the workplace.

This indicates the crucial need for expert preparation for and presentation of evidence at a disciplinary hearing.

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@labourlawadvcie.co.za.  Go to: www.labourlawadvice.co.za.