Some time ago, I was asked by an employer to assist with preparing for a Labour Court review case. The employer had dismissed the employee for theft, but the Commission for Conciiation Mediation and Arbitration (CCMA) had forced the employer to reinstate him.
I was puzzled by the CCMA’s decision because, on discussing the case with the employer, I unearthed strong evidence that the employee deserved to be dismissed. However, on further investigation, I discovered that most of the evidence against the employee had not been presented at the hearing.
The reason for this was that the charging officer had neither conducted a proper pre-hearing investigation, nor had she properly prepared her witnesses and documents for the disciplinary hearing. The result was that the evidence presented at the disciplinary hearing, and at arbitration was insufficient to justify the guilty finding of the chairperson of the disciplinary hearing. Thus, the employer lost the case at CCMA, not because the CCMA arbitrator was biased, incompetent or mistaken, but because the case presented was very weak. This was tragic for the employer, because existing strong evidence that would have won the case for the employer was not presented.
This same problem of weak case presentation occurs very often. There are two important reasons for this. The person presenting the case for the employer may be insufficiently trained and therefore unskilled in case presentation. Alternatively, the employer may have failed to prepare the evidence properly.
The reasons for this failure include:
The employer does not want to spend the time necessary to carry out proper preparations for the hearing.
The employer not know how to prepare properly for a disciplinary hearing.
However, where the manager responsible for bringing the case on behalf of the employer fails to do so properly, the likelihood is that the CCMA arbitrator’s decision will go against the employer. This is because the employer has the full onus of proving that the employee was guilty, and that the misconduct merited dismissal, as opposed to a less drastic - and more corrective - disciplinary step.
For this reason it is vital that all managers and other staff responsible for discipline, acquire a full understanding of how to prepare for, and how to present, a case at a disciplinary or arbitration hearing.
The steps for preparing a case include:
Assessing the allegations to establish whether they have been brought in good faith, or whether the accuser has a hidden agenda.
Investigating the circumstances of the alleged incident(s).
Assessing the circumstances leading up to and surrounding the alleged incidents of misconduct.
Evaluating the evidence gathered in the investigation to establish whether it constitutes proof or not.
Formulating the charges to be brought against the accused at the disciplinary hearing.
Establishing who will present the evidence at the disciplinary or arbitration hearing.
Deciding which witnesses and other evidence will be used.
Preparing questions for the employer’s witnesses.
Preparing questions to be used in order to cross-examine the evidence brought by the accused.
Preparing a draft closing statement.
In the case of NUM and others vs RSA Geological Services, a division of De Beers Consolidated Mines Limited (2004 1 BALR 1) the employer dismissed all the employees of its laboratory because a large quantity of kimberlite sample was found hidden on the premises. It was believed that the employees did this in order to falsely enhance their sorting rate and thus qualify for a performance bonus.
While the employer was able to prove that three of the employees had been involved in the scam, there was insufficient evidence presented to merit the dismissal of several others. Those employees were therefore reinstated.
Had the employer prepared properly for the hearing, and had it brought sufficient evidence that all employees had been involved in the deception, it would have been unlikely to have had to reinstate the dismissed employees.
This illustrated the crucial need for expert skills: in preparation for, and presentation of evidence, at a disciplinary hearing. Employers and managers are not born with these skills. They either need to hire in such skills, or to arrange for managers to be trained in how to prepare evidence for disciplinary hearings, and how to present such evidence successfully.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Web Address: www.labourlawadvice.co.za.
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