HR - Failure to Disclose - Part 2

ARTICLE 72

Failure to Disclose – Part 2

By Nikki Viljoen of Viljoen Consulting CC , July 2011

So now, as promised, the not so nice ending for the employer – let’s bring in the protagonists. Michelle is the owner of a busy day Spa. Men and women come to spend an entire day, or even just an hour or two, being pampered and spoilt. The Spa offers several different types of massages as well as the usual facials and what have you. Michelle has had several requests from some of her regular ladies for a male masseuse and she had decided that that would be quite a draw card. So she goes about getting the right person for the job.

Michelle also has all the proper procedures in place and she is also careful to ensure that all the right questions are asked, one of them is “Do you have a criminal record” and her applicant George responds with a resounding “No, I don’t.” George is the successful applicant and he is hired and starts work immediately.

From the very beginning, George is very popular with the ladies (and even a few of Michelle’s gay male clients) and the novelty of having a male masseuse is quite a draw card. Business is great and Michelle is pleased with her decision.

A couple of months down the road, Michelle gets a new client (let’s call her Mary). Mary is a model and is clearly a difficult customer who makes a lot of demands – very loudly. Mary is also very careful to let everybody know who she is and who she knows. Mary wants everything done her way, done now and is very ‘public’ about what happens, when it happens and if it happens. Michelle stresses out every time Mary arrives as she disrupts the quiet and peaceful tranquillity of the Spa and it takes several hours, after she has left, for everybody to calm down and for peace and quiet to be restored.

On her 3rd or 4th visit Mary decides that she is going to try the male masseuse and despite the fact that George is fully booked for the day, Mary makes such a scene about it, that one of the regular clients decides to forego her scheduled and booked treatment with George and ‘give up’ her spot for the sake of peace and quiet. A very grateful Michelle promises, not only a replacement appointment, but also another at no cost.

Mary goes into George’s massage room and all hell breaks loose. Mary starts screaming as though she is being attached and a very traumatised and distraught George hastily departs the massage room. Mary comes out screaming like a banshee because ‘George is the pervert who tried to sexually abuse her’ at the previous spa that she used to go to and now he has ‘followed’ her here to Michelle’s Spa. Mary describes in great glorious detail what George is ‘allegedly’ did to her and states that she brought charges against George and that the ‘law’ has taken its course.

Michelle is obviously outraged as she did ask if George has a criminal record and George had replied that he did not. In her anger, frustration and obvious embarrassment, Michelle set about calling for a disciplinary hearing and George was dismissed for non-disclosure. George goes off the CCMA and Michelle loses the case.

Here’s the thing, in this country ‘a person is deemed innocent until proven guilty’ and since the court case, having been postponed several times because Mary’s lawyers just did not bother to pitch up, was eventually dismissed for ‘lack of evidence’, George was not charged or found guilty of anything, therefore when he stated that he did not have a ‘criminal record’ he was telling the truth. Michelle was ordered to pay all sorts of damages as well as all of George’s legal fees. Worse than that, Michelle still contends with Mary and all of her ‘loud’ snide comments about being subjected to a massage by a criminal.

As you can see from this story, if Michelle had used the services of a proper HR consultant, this probably would have been resolved without the huge legal costs incurred, because of her lack of understanding of the law.

My advice to Michelle would have been to get hold of a reputable HR specialist who had a good grounding in IR (Industrial Relations) and also to ‘fire’ Mary as a client!

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