By lvan lsraelstam, 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. Go to: www.labourlawadvice.co.za
Labour law heavily protects employees from unfair dismissal. Section 188 of the LRA effectively provides that a dismissal will be unfair if the employer is unable to prove that it was both procedurally and substantively fair. This means, in a case of misconduct, that the employer must be able to prove that it followed a fair disciplinary process and that its reason for firing the employee was fair. Providing both of these categories of proof requires much effort and meticulous care from the employer.
The key requirement is for management to convert allegations into proof of guilt. Far too many employers spend a lot of time and effort on formulating complex and extremely wordy charges but fatally fail to back them up with proof. As I have been unable to find a suitable dictionary definition of ‘proof’ I submit that ‘proof’ is ‘relevant and legally permissible evidence that is backed up by other independent evidence’. Independent evidence is that which emanates from an entirely different source to that of the initial evidence.
It is most surprising that some large and well-established employers have failed to appreciate the need to submit solid proof in order to justify dismissals. This invariably results in very costly losses suffered by the employer.
A case in point is that of the Member of the Executive Council: Police, Roads & Transport (Free State Provincial Government) vs Public Servants Association Obo R Botha & L Dunn-Radile (26 July 2024. Case number JR 1151/19). In that case the Free State Government fired two employees for allegedly making fraudulently misrepresentative submissions to various superiors.
The arbitrator found that it had been the employees’ superior who had compiled the allegedly fraudulent submission and that the employees were innocent of the charges. This finding was based on the testimony of the very superior who had in fact compiled the relevant submission and on the fact that the employer’s witnesses had no knowledge of the facts of the case. The arbitrator also found that the employer had unnecessarily delayed for four years to charge the two employees and ordered the employer to reinstate both of them. The Labour Court upheld this award.
This is one of many cases where the employer has no proof that the employees are guilty yet decides to dismiss them based purely on unsubstantiated allegations.
This very expensive error can be avoided if management is trained in the legal requirements attached to discipline and dismissal.
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
