SABPP-Newsletter-July-2014

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HR VOICE . JULY 2014Disciplinaryhearings:preparation isthe keyThere are many reasons why parties lose dismissal cases at theCCMA. Mistakes that have been made by the parties include:• The employee assumed that, because the labour lawprotects them so strongly the employer will not be able todismiss them. This lulls them into a false sense of securityand they fail to prepare properly for the disciplinary hearing• The employer took disciplinary action for personal reasonsrather than for failing to comply with the employer’s rulesor performance standards• There was insufficient evidence against the accused tomerit 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 arbitrationhearing• present the evidence in a proper manner to enable thechairperson/arbitrator to find in the employer’s favourThe basic reason for poor presentation of evidence is thefailure of the employer or employee to prepare properly for thedisciplinary hearing or arbitration hearing. The reasons for thisfailure include:• The employer or employee does not want to spend the timenecessary to carry out proper preparations for the hearingand• The parties do not know how to prepare properly for adisciplinary and/or arbitration hearing.the alleged incidents of misconduct• Evaluating the evidence gathered in the investigation toestablish whether it constitutes proof or not• Formulating the charges to be brought against the accusedat the disciplinary hearing• Establishing who will present the evidence at the disciplinaryor arbitration hearing• Deciding which witnesses and other evidence will be used• Preparing questions to be used in order to cross-examinethe evidence brought by the accused• Preparing a draft closing statement.In the case of NUM and others vs RSA Geological Services, adivision of De Beers Consolidated Mines Limited (2004 1 BALR1) the employer dismissed all the employees of its laboratorybecause a large quantity of kimberlite sample was found hiddenon the premises. It was believed that the employees did this inorder to falsely enhance their sorting rate and thus qualify fora performance bonus.While the employer was able to prove that three of theemployees had been involved in the scam there was insufficientevidence presented to merit the dismissal of several others.The employer relied on evidence that the latter employees hadrefused to undergo a polygraph test but no direct evidence oftheir guilt was brought against them. The employees weretherefore reinstated by the arbitrator.Had the employer prepared properly for the hearing and hadit brought sufficient evidence that all employees had beeninvolved in the deception it would have been unlikely to havehad to reinstate the dismissed employees.This indicates the crucial need for expert preparation for andpresentation of evidence at a disciplinary hearing.BY Ivan Israelstam, Chief Executive of Labour LawManagement Consulting. ivan@labourlawadvice.co.za. Go to:www.labourlawadvice.co.za.This article first appeared in TheStar.However, where the manager responsible for bringing the caseon behalf of the employer fails to do so properly the likelihoodis that the CCMA arbitrator’s decision will go against theemployer. This is because the employer has the full onus ofproving that the employee was guilty and that the misconductmerited dismissal as opposed to less drastic and morecorrective disciplinary step.For this reason it is vital that all managers and other staffresponsible for discipline acquire a full understanding of howto prepare for and how to present a case at a disciplinary orarbitration hearing. The steps for preparing a case include:• Assessing the allegations to establish whether they havebeen brought in good faith or whether the accuser has ahidden agenda• Investigating the circumstances of the alleged incident(s)• Assessing the circumstances leading up to and surroundingFACEBOOK/SABPPLIKE OUR PAGEPROFESSIONAL SERVICES . PAGE 10
HR VOICE . JULY 2014DisputeResolution:The Use of Mediation in theWorkplaceIt all started with gossip and rumour mongering between twoteam members in a department about a third team membervia an e-mail that was accidentally copied to all the eight teammembers!Within minutes of the team members reading the e-mail, therewas uproar from firstly the person who was being directlygossiped about in the e-mail. Then other team members alsogot swallowed in the whole fracas as cliques immediatelysprouted, then the cliques took sides and serious ructions inthe team developed as team members viciously defended orattacked each other covertly or subtly. The team members wenton tearing each other apart for a while before their Supervisornoticed that there was something amiss in the team. It dawnedon him at some stage that there were problems emerging inthe team and during team meetings he developed a feeling thatsome cliques were ganging up on him, as there was negativetalk and grumbling in the corridors. The situation eventuallyspiralled out of control when the three members involved in theconflict launched formal grievances and counter-grievancesagainst each other and the Supervisor also got indirectly suckedinto the grievance procedure as well. Some team membersvoluntarily joined the grievance procedure as a show of supportfor their colleagues who were also their friends. Battle lineswere drawn.At some stage, six team members, Unions and Managementended up being directly involved in the grievance processwhich took forever to be resolved as the grievances wentback and forth until the process was temporarily suspended.This was to allow the parties to take in some air and seek adifferent approach to the problem! How the conflict is managedinternally in the organisation has an influence on the externalprocess and ultimately the outcome of the dispute.This team had been working together for five years, andgenerally they worked quite well. At this distressful point theSupervisor decided to engage the services of a WorkplaceMediator from Restorative Justice Centre to assist withMediation.Unfortunately disputes or conflict in business are an inevitablereality. Disputes within workplaces and between businessesresult in enormous direct and indirect losses to the businesses,and that is bad for business. Labour analysts are agreed thatSouth African workplaces are generally more fraught andantagonistic and that the Labour Relations Act has failed inits main intention of nurturing a cooperative approach in theworkplace.Despite South Africa having a reasonably well-developedalternative dispute resolution (ADR) system, it is currentlynot working well. This is evidenced by the fact that conflictresolution services (particularly mediation) are not well utilizedand formal systems such as disciplinary hearings, labourtribunals (CCMA) and the Labour Courts are overburdened. TheLabour Relations Act of (1995): Chapter VI makes provisionsfor the use of informal, quick and cost-effective methods ofdispute resolution such as mediation in the workplace.Businesses have a very simple and straight-forward approachto resolving disputes. They need disputes resolved quickly andefficiently. This is not always possible because of the legal andprocedural complexities surrounding formal dispute resolution.In SA, while there has never been a study to ascertain the cost ofconflict, disputes and litigation to the economy and businesses,it is thought to be significantly high.NOT AT THE CUTTING EDGE OF YOURPROFESSION?REGISTER NOW!professional@sabpp.co.zaPROFESSIONAL SERVICES . PAGE 11
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