BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944, 0828522973 or on e-mail address:
I recently received an urgent call from an employer who had dismissed her receptionist for gross incompetence. The receptionist had been working for the employer for 30 years and had never received as much as a written warning for poor performance. The employer explained that because the receptionist had been a family friend he had found it difficult to tell her about his dissatisfaction with her work.
Earlier this year the receptionist’s performance slackened even further resulting in the loss of clients. But, because she had been with him for so long he had not had the heart to discipline her. Then, two weeks ago, she again provided poor service to a client. The employer lost his temper and fired her on the spot. She left and returned with a labour consultant and a demand for a R90 000-00 settlement. As the employer had lost his temper and fired his receptionist without a hearing he had to pay up. This is just one of many examples of cases where a fit of anger can cost an employer dearly.
The unreported case of Kitts vs Dachs cc illustrated this point further. The employee was awarded R88000 after her boss fired her at a company social function. The employee had got drunk and ...
had been rude to one of the guests who was a client. In his anger and in order to appease the client the boss fired the employee on the spot.
The employer thus dismissed the employee without giving her a hearing so rendering the dismissal procedurally unfair. What the boss could have done was to send her home from the social function, apologise to the client and assure the client that the employee would face disciplinary proceedings.
This would have shown the client that the employer was treating the incident seriously but would have avoided this costly compensation award made against the employer. That is, had the employer waited until his emotions had cooled off before disciplining the employee it is likely that the employee’s discipline would not have led to this harsh award.
ln the case of Ndimane vs Natal Special Coating (case number KN 245) Mr Ndimane was dismissed by his employer for poor performance as a painter and
the arbitrator found that the employer had dismissed the employee without giving him a hearing. This rendered the dismissal procedurally unfair.
The arbitrator reinstated the employee with retrospective effect to the date of the dismissal. This decision will have been based on the provisions of section 193 of the new LRA which specifically states that, where the arbitrator finds a dismissal to be unfair, he/she may either order reinstatement, re-employment or compensation.
This meant that the employer not only had to take the employee back but also had to pay his wages for the entire period between the date of dismissal and the date of the submission of the arbitration award. Had this employer engaged the services of a reputable labour expert both of these “penalties” may have been avoided simply by ensuring that the employer followed the procedures prescribed by the LRA.
In the case of Mkhize vs JLR & HAY-Yoon Enterprise (case number KN373) arbitrated at the CCMA the arbitrator again found that there were clear and serious procedural irregularities and again reinstated the employee.
In many cases hasty and unprocedural dismissals occur because the employer acts in anger. In the Dachs case the employer had every right to be embarrassed and angry to hear that his client had been insulted at a function hosted by the employer; but acting against the employee in the heat of the moment proved extremely costly.
ADVICE TO HR AND IR PRACTITIONERS
- Practitioners need to make their line managements aware of the danger that emotion can bring into a disciplinary process and that they should delay any discipline until the emotion has passed.
- In extreme cases it may be necessary temporarily to transfer the employee to another location until the employer has cooled off or to suspend the employee pending an investigation.
- Should the employer not have a manager who is in a position to hold an objective, legally correct and unemotional disciplinary hearing it should hire a labour law expert to preside over the hearing. I personally have never had problems with keeping emotion out of the hearings which I chair, investigate or prosecute for clients because I am not subjectively involved.
- Managers need to be thoroughly trained in how to deal unemotively and professionally with misconduct even in the most pressurised situations.
- Practitioners should make it clear to all managers and supervisors, after proper training, that should they fire employees unfairly they could themselves be disciplined for this.
