Discipline and Dismissal

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  Ivan Israelstam


Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit. However, more often employers go to the opposite extreme and brush all grievances aside because they are not there "to deal with employees' sob stories" or because the statutes do not provide for the lodging of grievances. A lot of thought and effort is however necessary when dealing with employee grievances, or personal problems.

While it is true that no statute specifically requires employers to solve their employee's personal problems there are many circumstances under which employers would be foolish to ignore grievances, for example:

 

  • Where the continued existence of the problem affects employee morale, this may in turn cause a drop in productivity, increases in wastage, resignations and even conflict.

 

This normally occurs where the resolution of the grievance is seen by the employee as the employer's responsibility. This would, for instance, be so if the employer moved premises, resulting in commuting problems for the employee.

 

  • Where employees are being abused verbally or physically by a manager, the practical and legal consequences for the employer could be dire if the employer does not act quickly, fairly and effectively.

 

This would be the case, for instance, where the employee is being sexually harassed, insulted or bullied. Employers are reminded of the expensive consequences for the employer in the Real Security case we discussed some months ago.

There the employer had to pay tens of thousands of rand in compensation to an employee who had been sexually harassed by a supervisor, because the employee's grievances were ignored by the employer. Employees whose salaries are not paid to them and who receive no satisfaction from the employer when expressing such grievances are, under specific circumstances, entitled by law to resign and take the employer to the CCMA or bargaining council for constructive dismissal (a type of forced resignation).

Some employers not only ignore all employee grievances but also victimise certain employees for raising those grievances. Such employees are arbitrarily labelled as "trouble-makers" and are told to "like it or take a hike". In the case of Kannemeyer vs Workforce Group (2005, 8 BALR 824) the employee lodged an internal grievance with her employer because her commission rate had been reduced without her agreement.

Thereafter, according to her, she was victimised for having lodged this grievance. She then resigned and claimed constructive dismissal on the grounds of her reduced commission rate and because the employer, who had instituted disciplinary proceedings against Kannemeyer for poor work performance, claimed that she had resigned in anticipation of the outcome of the poor work performance hearing.  That is, the employer denied that she had resigned due to victimisation but rather because she wanted to avoid being dismissed for poor performance.

The arbitrator found that:

  • The employer had brought no evidence disputing the employee's allegations of victimisation.

 

Instead of resigning, the employee could have considered lodging a second grievance against the way in which her first grievance had been handled. However, as she had received a negative response to her first grievance she could be forgiven for having lost faith in the grievance process·

  • While the poor performance charges appeared to be genuine the employee had been victimised for lodging her grievance

 

This constituted unfair constructive dismissal.

  • The employer was required to pay the employee eight months' remuneration in compensation.

 

In the light of the above it is crucial for employers who receive grievances:

  • To ensure that the employee is not mistreated in any way after having lodged the grievance
  • To investigate each grievance thoroughly while keeping an open mind
  • To judge the validity of the grievance based on the facts and not based on who has lodged the grievance or who has been named in the grievance.

 

If there is any merit in the grievance, an industrial relations expert can help devise an appropriate solution that will not create a problematic precedent.

  • Ivan Israelstam is chief executive of Labour Law Management Consulting.

  • He can be contacted on 011-888-7944 or 082-852-2973 or via e-mail at

  • Our appreciation to Ivan and The Star newspaper for permission to publish this article

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