Conditions of Employment


Employers who do not keep detailed records of disciplinary action taken against employees for misconduct, including the action taken and sanctions imposed, take a huge risk. Time and time again, it has been shown just how vital proper record keeping is in regard to coming out on top at the CCMA.


In Gcwensha v CCMA & others, the employee had been dismissed for gross negligence, and the employers excellent record-keeping showed that the employee had a number of previous warnings for incompetence, negligence and inefficiency.


At the time of his dismissal, the employee was on a current warning, which had the effect of placing him on terms. The court found that the employee had a " deplorable record" which the employer was entitled to consider when deciding on a suitable sanction for the current transgression.The employers excellent record-keeping saved the day.

 

In NUMSA v John Thompson Africa (Pty) Ltd [1997] 7 BLLR 932 (CCMA), it was the lack of proper record-keeping that landed the employer in trouble, and ended up with a reinstated employee. The employee was dismissed for wilful damage to and deliberate misuse of company property, using abusive language, and being under the influence of an intoxicating substance.


The employee followed his employer's appeal procedure, but no record of the proceedings at the disciplinary hearing was available for the appeal chairperson. Since there was no record of the evidence led at the disciplinary hearing, there was no evidence to indicate that the employment relationship had been irretrievably harmed by the employee's behaviour. The employee was reinstated.

 

Schedule 8 - the Code of Good Practice - Dismissal requires that the employers must keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action. The chairperson of a disciplinary hearing cannot apply his mind properly to the problem if there is no record of alleged previous disciplinary actions against the employee. Obviously, the employee with a clean disciplinary record is the exception - there is no record to consider.

 

However, the chairperson is placed in a very difficult position when the employer submits as an aggravating circumstance, or perhaps in  closing arguments, that " this employee is always misconducting himself and has had previous disciplinary hearings", but when the chairperson calls for the previous disciplinary record it is found that there is no record to produce.


Such an employer goes to the CCMA with very little ammunition - and his case turns out to be rather something of a damp squib. There can be no doubt that meticulous record-keeping and proper preparation is 90% of the battle in CCMA matters.


Poor record-keeping can result in only one thing - sloppy preparation. And in such circumstances, you have lost before you even start.

For further information,

Courses and Workshops

 

                   

 

Problem-solving and Decision-making Skills

24 & 25 October 2019

Emperors Palace: Convention Centre

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

28 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

AARTO and the Impact on Your Business

31 October 2019 (Fully Booked)

Emperors Palace: Convention Centre

01 November 2019

Emperors Palace: Convention Centre

Employment Equity Committee Training

01 November 2019

Emperors Palace: Convention Centre

07 November 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

08 November 2019

Tsogo Sun: Century City: Cape Town

Managerial and Leadership Skills

06, 07 & 08 November 2019

Emperors Palace: Convention Centre

2019: Case Law Updates

15 November 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

22 November 2019

Emperors Palace: Convention Centre

29 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Hazard Identification & Risk Assessment Course

27 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

  

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play