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.labourlawvideos.co.za.
Employers often fail to investigate allegations of misconduct or poor performance properly because they are busy, because of feelings of anger towards the employee or due to lack of investigatory skills.
In the case of G4S Secure Solutions vs Mlotshwa (Lex Media. 14 August 2024. Labour Court case number D267/2021) the employee was fired for causing an accident due to reckless driving. It had been shown that the employee had, while driving in the rain, been holding the steering wheel with one hand, had looked tired on the vehicle’s internal CCTV footage and had admitted to feeling tired at the time. Even though the employee admitted to driving during rainfall with one hand on the wheel while feeling tired, the CCMA found that he had been unfairly dismissed. The Labour Court upheld this decision as well as the CCMA’s order of reinstatement with 15 months compensation.
It appears that the reason for this strange looking decision was that the employer had been unable to prove that the employee’s tiredness had been the cause of the accident. Also, the employee’s reason for the collision was that the vehicle had hit a puddle of water. It appears that the employer had neither been able to disprove this excuse nor even to deny that the vehicle had hit a puddle. The employer, instead of relying solely on the camera evidence and the tiredness of the employee, needed to have investigated the site of the accident to see whether there had been a depression in the road that could have resulted in the alleged puddle and in the vehicle going out of control.
Had the employer carried out this further aspect of its investigation it may have had grounds to refute the employee’s claim of a puddle; and this would have strengthened its case.
Concluding an investigation that optimises the chances of a successful disciplinary hearing requires a great deal of skill. Investigators need to know how to:
- Cover all aspects of the case so as not to leave any loopholes
- Identify relevant witnesses, documents and other evidence
- Engage with witnesses to elicit the true and complete facts
- Recognise a new lead when it arises
- Keep within the laws limiting the rights of an investigator
- Put all the facts gathered into a clear and comprehensive report
- Question suspects without necessarily letting on that they are suspects.
As these skills are difficult to develop investigators and complainants should be trained in labour law and in the investigation of misconduct.
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 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
