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. Go to: www.labourlawvideos.co.za
Section 188 of the LRA places the onus of proof of a fair misconduct dismissal squarely and fully on the shoulders of the employer. All the dismissed employee is required to do is to prove that he/she was fired.
In satisfying this challenging onus the employer must prove that the dismissal procedure followed was fair, and that the reason for the dismissal was fair. Where the employer fails to prove that there was a fair reason justifying the dismissal the arbitrator or court is bound to find the dismissal to have been substantively unfair.
In order to show substantive fairness, the employer needs to be able to provide proof that:
- The rule that the employee allegedly broke existed
- The employee was aware of the rule
- It was a fair rule
- It had been consistently applied
- The employee broke the rule
- The employee’s misconduct was so series that it destroyed the employment relationship and merited dismissal.
Employers are often able to provide proof of most of these six factors. However, they very often forget about the need to prove that the rule that the employee allegedly broke existed.
In the case of Shoprite Checkers vs Godfrey Makaloi (Lex Media, 28 August 2024, Labour Court case number PR98/2023) the employee was fired for allegedly consuming sugar belonging to the employer’s stock.
At arbitration the employer brought testimony and video footage yet still failed to prove that the employee was guilty of the charge. More surprisingly, the arbitrator found that the employer had also failed to prove that it had a rule against consumption of the employer’s stock. As a result, the arbitrator found the dismissal to have been substantively unfair and ordered the employer to reinstate the employee with backpay.
This case decision shows that employers need to ensure that its managers who implement discipline and who represent them at the CCMA know what they are doing. To do this, employers need to ensure that they thoroughly train their managers in labour law.
However, such training can be very expensive and time consuming especially because regular repeat training is needed in order to ensure that the learning gained is retained.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE provides very inexpensive training that allows the managers of every employer to obtain essential labour law knowhow, and to do so 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.
The employer has the option of using this groundbreaking video series to train its managers and HR practitioners in groups and then follow-up by getting them to view the video chapters again at convenient junctures in order to ensure that they retain the learning gained. Alternatively, employers with self-learning systems can simply give their managers and HR practitioners access to the entire series for viewing at times that suit their busy work schedules.
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 and sustainably builds the managers’ capacity to manage the workplace effectively and in line with the law.
That is, 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 48-part video series, WALKING THE NEW LABOUR LAW TIGHTROPE. Just go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
