Articles

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it.. Go to: www.labourlawadvice.co.za. This article first appeared in The Star.

There are many reasons why parties lose dismissal cases at the CCMA. Mistakes that have been made by the parties include:

  • The employee assumed that, because the labour law protects them so strongly the employer will not be able to dismiss them. This lulls them into a false sense of security and they fail to prepare properly for the disciplinary hearing
  • 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:

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

q  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 or employee to prepare properly for the disciplinary hearing or arbitration hearing. The reasons for this failure include:

  • The employer or employee does not want to spend the time necessary to carry out proper preparations for the hearing and
  • The parties do 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:

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

q  Investigating the circumstances of the alleged incident(s)

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

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

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

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

q  Deciding which witnesses and other evidence will be used

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

q  Preparing a draft closing statement.

In the case of NUM and others vs RSA Geological Services, a division of De Beers Consolidated Mines Limited (2004 1 BALR 1) the employer dismissed all the employees of its laboratory because a large quantity of kimberlite sample was found hidden on the premises. It was believed that the employees did this in order to falsely enhance their sorting rate and thus qualify for a performance bonus.

While the employer was able to prove that three of the employees had been involved in the scam there was insufficient evidence presented to merit the dismissal of several others. The employer relied on evidence that the latter employees had refused to undergo a polygraph test but no direct evidence of their guilt was brought against them. The employees were therefore reinstated by the arbitrator.

Had the employer prepared properly for the hearing and had it brought sufficient evidence that all employees had been involved in the deception it would have been unlikely to have had to reinstate the dismissed employees.

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

To attend our 20 June 2014 Cape Town seminar on WALKING THE LABOUR LAW TIGHTROPE please contact This email address is being protected from spambots. You need JavaScript enabled to view it. or 0845217492.