WHAT TO DO WHEN . . . . Out with the Old, In with the New - Part 4

ARTICLE 44

WHAT TO DO WHEN . . . . Out with the Old, In with the New – Part 4

By Nikki Viljoen of Viljoen Consulting CC October 2009

So following on from last week – let’s have a look at some of the other changes that were made to the Act that received a typical ‘knee jerk’ reaction. They are (but not limited to).

“Where an employee accuses an employer in court or at the CCMA of having dismissed him unfairly and the existence of the dismissal is established, the employer is assumed guilty of unfair dismissal until it proves itself innocent.”

So what exactly does this mean? Here’s the story

Sally owns a pre-school, nursery school type establishment and George works there as the gardener/handyman. Sally has a very strict “Code of Conduct” in terms of what the staff can or can’t do and one of the issues is that staff may not drink any alcohol or partake of any illegal substances whilst on duty or come to work still under the influence of either alcohol or drugs of any sort.

One morning George came to work and it was evident that he was still inebriated from the previous evening. Clearly it is not a good idea for an adult to be drunk around small children and Sally was obviously not impressed. Sally followed all the procedures correctly. With his written permission, Sally did a sobriety test and George was found to be well over the legal limit. Sally sent George home to ‘sleep it off’ and when he returned the following day he was given notice to attend a disciplinary hearing.

George was found guilty and dismissed and the next thing that happened was Sally was presented with the paperwork as George had gone off to the CCMA.

On the day the CCMA agreed that George was in fact guilty of being intoxicated and that George’s dismissal was the correct thing to do, however (and here is where it gets ugly) the arbitrator still decided that the dismissal had been unfair because George had been given the change to cross-examine those who had raised the complaint.

You see, Sally, in her fury had neglected to bring every single person who has seen the state that George was in and who had actually reported his behaviour to her. Sally had taken it upon herself to just report what she had seen.

Herein lies much of the problem when it comes to disciplinary hearings – the more witnesses you have the better your case becomes. It doesn’t really make any difference whether they all say the same thing, what matters is that there is a ‘visual and physical’ component to the charges that have been made. Documentary evidence is good, but having witnesses corroborate the evidence that is set out in the documents is even better.

Knowing what the procedures are and following them is good, but understanding the law and applying it to those policies and procedures is even better.

It is also necessary for everyone to understand how important it is to get professional help when you are having HR issues, clearly trying to deal with this stuff by yourself becomes part of the problem.


Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za