Avoid falling off the labour law tightrope
By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website address: www.labourlawvideos.co.za.
Employer sometimes ask me to assist them with preparing for a Labour Court review case. Typically, the employer has justifiably dismissed an employee, but the CCMA has forced the employer to reinstate him/her. The CCMA’s puzzling award in such circumstances is sometimes due to the arbitrator’s failure to do his/her job properly. Buth this happens in a small proportion of cases. Much more often the reason for the surprise award is that most of the evidence against the employee has not been presented at the arbitration hearing or has not been presented properly.
This often happens because the employer’s representative has either failed to conduct a proper pre-hearing investigation or has not properly prepared the witnesses and other evidence. The result is that the evidence presented at the arbitration hearing is insufficient to justify the guilty finding of the chairperson of the disciplinary hearing. Thus, the employer loses the case at CCMA not because the CCMA arbitrator was biased, incompetent or mistaken, but because the case presented was very weak. This is tragic for the employer because existing strong evidence that would have won the case for the employer was not presented.
The most important reason for such failure is that the employer’s representative at CCMA has been insufficiently trained in the crucial skills of case preparation and presentation.
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, legally, the employer has the full onus of proving that the employee was guilty and that the misconduct merited dismissal.
For this reason, it is vital that all managers and other staff responsible for discipline and CCMA representation acquire a full understanding of how to prepare for and how to present a case at a disciplinary or arbitration hearing.
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. Those employees were therefore reinstated.
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 skills in preparation for and presentation of evidence at disciplinary and arbitration hearings. However, managers are not born with these skills.
I fully understand that training of managers can be costly timewise and financially. However, employers cannot afford not to train their managers in implementing workplace discipline and in presenting cases at the CCMA.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
