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: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.
Exceptional employees exist who always manage their own conduct and seldom need to be managed. However, most employees do need to be managed, and this is the job of their superiors.
Occasionally employees purposely misbehave or perform badly because they do not want to work and prefer to get fired. However, in my experience this is more the exception than the rule. More often, consistent poor conduct or poor performance reflects a management that is either under skilled or unwilling to manage employee conduct. As a result, we may well find that employees:
- Spend hours chatting on the phone.
- Fail to work according to quality standards.
- Do private chores during working hours.
- Refuse to carry out instructions.
- Fail to check their work.
- Abuse sick leave.
- Have no pride in their work.
- Misuse the internet.
- Send private e-mails during working time.
- Steal from the employer.
- Get into fights.
- Miss deadlines.
- Waste production materials.
- Arrive for work late, take long lunch hours and go home early.
It is not necessarily the manager’s fault that employees want to misbehave or to slack off. Laziness, disinterest, or lack of caring can be due to the employee’s own character. However, where this is so, it is up to the manager to implement corrective measures that must either change the employee’s behaviour or, where this has been properly tried and failed, result in possible dismissal. That is, every manager and supervisor must know how to:
- Quickly recognise rebellious or demotivated employees.
- Engage with them in such a way that they are quickly aware that their behaviour will not be tolerated.
- Guide wayward employees along the correct path.
- Institute swift, timely, firm, and appropriate disciplinary action that is not only effective but is also seen as fair by the CCMA or bargaining council.
Many managers are unable to deal with errant employees effectively and just as many are unable to discipline employees within the bounds of the law. This results in employees getting away with serious misconduct which is badly damaging to the employer. For example, in the case of Faltyn vs Buffalo Flats Community Development Trust (2005, 2 BALR 183) Faltyn was dismissed for losing cash belonging to the employer. The employee alleged that the cash had been stolen from him. He had collected the cash the previous day and, instead of handing it in as he was supposed to have done, he had kept the cash with him. He had left work early without permission to do a personal errand and had been mugged the following morning on the way to work while he still had the cash in his possession.
The CCMA arbitrator accepted that:
- The employee could have handed in the money on the day it had been collected.
- The employee should have spoken to his employer about his personal problem requiring him to leave work early.
- The employee deserved to be dismissed.
Despite this the arbitrator ordered the employer to pay the employee financial compensation. This was because the same manager who had decided to charge the employee also presided over the disciplinary hearing. The fact that the manager had made the decision to charge Faltyn meant that the manager would have had knowledge of the incident prior to the hearing. For the same manager to then preside over the hearing rendered him a potentially biased chairperson because his prior knowledge of the incident could have influenced his judgement.
This is one of thousands of cases where such a technical error on the part of a manager has cost the employer money and has benefited an employee who was clearly guilty and deserving of dismissal. Often, this kind of error is the fault of the manager because the manager should have known better. However, more often than not, it is the fault of the manager’s employer for having failed to:
- Train the manager in the requirements of labour law.
- Give the manager access to labour law experts who could advise the manager on how to deal with the case in question.
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