|
Ivan Israelstam
Most late-coming problems experienced by employers are due to the employer's own fault. Both the principles of sound management and the Labour Relations Act (LRA) require that employers use firm, swift, fair and graduated disciplinary measures to deal with late-coming and other employee misconduct before dismissing the offenders. In other words every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing. The hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate.
The employer should not:
- Close a blind eye to repeated acts of late-coming
- And then, when the employer finally loses patience, lose his/her cool and fire the employee.
The employer should also not give warnings and then fail to act on them. In the case of NCP vs SACWU (1998, 6 BALR 769) the employee was a locomotive driver who arrived late on a number of occasions. He eventually received a final warning for lateness. Thereafter he was again, on several occasions, very late by many hours). Despite this, he was only mildly reprimanded or warned or not disciplined at all. Later, he was late yet again and was dismissed.
The arbitrator found the dismissal to be unfair. It appears that the reasons for this startling decision were:
- The employee had initially not been strongly disciplined for lateness after having received a final warning. This led the employee to believe that the final warning had no effect.
- Under these circumstances it was wrong to fire the employee who had been led to believe, by the employer's inconsistent and confusing conduct, that lateness and repeated late-coming were not serious offences
- The employer had abdicated its duty to take appropriate corrective steps in respect of the employee's late-coming problem
- The employer had therefore waived its right to dismiss the employee.
Unless there are compelling mitigating circumstances the next logical step after issuing a final warning is normally dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
For example, in the case of Transwerk vs SATAWU (2000, 8 BALR 993), the employee had received a final warning for late coming. He arrived late for work again and was dismissed on the grounds of his final warning. The arbitrator found the dismissal to be too harsh and reinstated the employee.
This means that, even if an employee has already received a final warning, the employer may still not be entitled to dismiss him for being absent again depending on the circumstances of the case. However, the LRA does not state under which circumstances it is acceptable to dismiss employees who repeat offences after receiving final warnings.
These conflicting case decisions place employers in a quandary. On the one hand, if they do not dismiss latecomers who have received final warnings they could lose their right to dismiss them at a later stage. In the other hand, if they do dismiss latecomers after having issued a final warning, the arbitrator might find this to be too harsh.
Employers often lose CCMA cases because they are fearful of these contradictory legal decisions. That is, because the employer cannot trust the system he/she tries to circumvent it by, for example, coercing the employee to leave instead of holding a disciplinary hearing.
While employers will be excused for feeling despondent due to the legal cards being stacked against them they cannot allow this to derail them from following due process. Instead they should:
- Receive training so as to be able to understand the vagaries and dangers of the law;
- Contact a reputable labour law expert as soon as problems with misconduct arise.
lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address:
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Our appreciation to Ivan and The Star newspaper for permission to publish this article.
|
