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
In a recent article I stressed how important it is for employers to understand that they have the full onus of proving a dismissal to be fair. On that basis I further stressed how crucial it is for management to convert allegations of misconduct into proof of guilt. This vital requirement applies at internal disciplinary hearings, CCMA arbitrations and at the Labour Courts. In the said recent article I proposed 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. What is much more surprising is the belief of some employers that the CCMA arbitrator is obligated to assist the employer in making its case effectively.
A case in point is that of Samancor Chrome Ltd vs NUM obo Matshebele (Lex Info, 6 September 2024. Case number JR 69/22). In that case the employer fired the employee for dishonesty after a smart shopper card belonging to the employer had been misused. The employee testified that he had, in fact, used a company smart shopper card lent to him by an acquaintance. Despite this the CCMA and the Labour Court found that the employee’s dismissal had been unfair.
The Labour Appeal Court (LAC) agreed with CCMA and Labour Court, not because it believed the employee to have been innocent, but because the employer had failed to prove that it had been the employee who had misused specific the card in question. It appears that the evidence presented by the employer failed to connect him to the card that it had alleged he had misused. So, his admission that he had used ‘a borrowed smart shopper card’ did not help the employer to prove him guilty. This is somewhat surprising because such cards normally contain unique serial numbers that make it easy to identify which card has been used or misused.
One of the grounds that the employer used for its appeal was the fact that, at arbitration, the commissioner had failed to assist the employer in presenting a convincing case. The LAC said that the arbitrator had no obligation to assist the representative of a large, well-established employer. The LAC found against the employer and ordered it to pay the employee’s legal costs. This was because the employer’s case was “a study in ineptitude’. The Court added that the employer, having had access to legal advice, should have known better than to take such a weak case on review and then on appeal.
This is a peculiar case where the employer appeared to have been in possession of evidence that could have proved the employee guilty of misconduct but simply did not present it, thinking that the arbitrator would assist it in winning the case.
Employers can simply not afford to assume that, if they go to arbitration with the truth in their hearts, this will be sufficient to enable them to succeed. Instead, every employer needs to train their managers as to just how hard it is for employers to win at arbitration and as to how they can achieve this very tough task.
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
