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You are guilty until you prove yourself innocent

1st July 2013

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Many employers have 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. A dismissal that occurs without good cause is termed ‘substantively’ unfair because the unfairness relates to the substance of the decision to dismiss and not to the disciplinary procedure.

Where you believe your employee has failed to keep to your rules you must carry out a misconduct investigation into the allegations against the employee. The purpose of such an investigation is to either:

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• Establish that there is no substance in the charges and that there is no reason to hold a disciplinary hearing; or

• Gather sufficient proof that the employee is in fact guilty of the allegations. That is, allegations are worthless until they are turned into proof.

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Should you, after hearing all the evidence, consider dismissing the employee, you  should ensure that such dismissal would be fair. Failure to do so would leave you open to an unfair dismissal finding at the CCMA or at a bargaining council. Should the employee take the matter further you would have the onus of proving that the dismissal was fair. That is, at the CCMA you have a triple whammy:

• Firstly, the tables are turned. You, as the employer, become the accused just like a defendant in a criminal trial. You have been summoned to the CCMA because the employee has charged you with unfair dismissal.

• Secondly, to make matters much worse, you are considered guilty until you prove yourself innocent!! That is, the employee does not have to prove that the dismissal was unfair. You have to prove that the dismissal was fair.

• Thirdly, you have to present your case first. This means that you may have to give your evidence before knowing what evidence the employee is going to bring .

So how do you prove to the arbitrator that the employee deserved to be dismissed? For the dismissal to be adjudged to be substantively fair, you would have to prove four things. That is, you must show that:

1. The employee did in fact 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 employers do 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 that case the employer fired a Ms Kotze for using racially derogatory language. One of the things she allegedly said was, “dit is mos a kaffir se salaris”. Quite rightly the City of Cape Town took serious exception to the use of the word “kaffir”.

The arbitrator found that Ms Kotze did say these words 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 to pay her back pay of R94000-00.

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.

The warning to employers is therefore that you cannot assume that employees know the rules. You have to codify all your rules and ensure that every employee has received and understood them.

How many of you have:

• drawn up a disciplinary code and procedure?

• updated your disciplinary policy and employment contracts in terms of changing legislation?

• given copies to your staff?

• trained your managers in the implementation of the policy?

• had your policies and training programmes assessed by an expert in labour law?

• landed up at the CCMA because you have not paid enough attention to the above requirements?

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. This article first appeared in The Star.

To book for the 20 August 2013 seminar on Labour Law Amendments Being Approved by Parliament please contact Ronni on ronni@labourlawadvice.co.za  or 0845217492.

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