THINKING WITH YOUR HEART COULD COST YOU

Finally someone who has written an article on something that I have said so often, I sound like an broken record!

Put proper procedures in place - they take the emotion out of the situation! Play the facts not the individual.

If it's not in writing, it ain't worth the paper it's written on!

One day someone will listen to me and then I won't have any work! Not going to happen I'm afraid. There is always someone out there that knows better and at the end of the day, they are the ones that pay the biggest 'school fees'!

Thinking with your heart could cost you

Companies make the mistake of trying to settle outside of court and often pay the price
04 January 2007 at 19h00

When dealing with disciplinary matters and individual labour-law disputes, greater focus has to be placed on managing such risks in a cost-effective and pragmatic manner. Too many individual cases are being handled by means of a costly and mechanical approach, and unfortunately, the presence of subjective emotions in dealing with these matters effectively, is too prevalent amongst both employers and employees. Hereunder are some examples where emotions have cost the employer and employee dearly and which highlight some very important learning points, mistakes being made and issues to consider when planning and implementing these customary industrial relations (IR)/labour-law processes.

The first example is that of a senior accountant who referred her alleged unfair dismissal to the CCMA for arbitration. The employer had a strong merit case. However, a primary witness had emigrated and the company was forced, at all costs, to negotiate a financial settlement. Notwithstanding the aforesaid predicament, which the other side was not aware of, the individual believed that she was entitled to a 24-month (R408 000) settlement even though her dismissal was not an automatically unfair one. In the four days preceding the arbitration, the individual, her labour lawyer and the company's advocate met three times. And no amount of explanation, from both legal representatives, could induce the emotionally charged individual to understand, for example, that she would not get an arbitration award remotely close to her perceived and legally unjustifiable entitlement, if anything at all. It was only the day before arbitration, when she realised that she would have to represent herself, that she settled on three months (R51 000) and still had to pay her own legal fees of approximately R16 000. This was very fortunate for the company as it would probably have received a much greater award due to the absence of an important witness.

Another case that comes to mind is that of a sales executive who was charged by his employer with misconduct, mainly insubordination, and non-performance-related issues. After having charged the individual, the company appointed a labour-law advocate to chair the disciplinary hearing and an external IR consultant to act as "prosecutor".

Before the company's evidence had been completed, the accused was removed from the hearing proceedings (for just and fair reasons) on the 32nd day and the hearing continued in his absence. A total 107 90-minute tapes and a direct expense of R760 000 bear testimony to the duration and cost, notwithstanding the "prosecutor" having withdrawn many charges in order to save time and costs. However, early in the disciplinary proceedings, the IR consultant pre-empted the possible duration and cost, and advised the board, which conceded to offering a settlement of up to 12 months (R204 000) Settlement was not to be as the employee wanted payment until he some day found another job. This was unacceptable to the board and the disciplinary hearing continued. The outcome was a dismissal in the inevitable CCMA arbitration and after that, a further R340 000 was spent in legal fees. The dismissal was upheld. An unfortunate and costly exercise for the employer and for the foolhardy individual who had forsaken a R204 000 settlement and still had to pay his legal fees.

Another emotions-driven example is that of the owner of a medium-sized manufacturing concern which was at the receiving end of a default judgement of 24 months' compensation (R216 000) for dismissing a female employee, in writing, due to her pregnancy, which is an automatically unfair dismissal. The employer's reputable labour lawyer, who only got involved after the award, was trying to explain to this self-righteous employer that there are no legally justifiable grounds at all for a rescission application and that he was merely wasting money. However, as we all should know, the employer's sentiment of "where-I-come-from-this-would-never-have-happened" was not going to sway a Labour Court judge. Although obviously not so, we should all know by now that emotions do not win any arbitration or Labour Court cases, but that facts do!

Rather use your head and not your heart when trying to resolve individual disputes, by facing practical realities and managing your risks.

Pierre Marais is managing director of the Labour Law Group. Contact him on 011-679-5944 or via e-mail on labourlaw@global.co.za