Petzer, Du Toit & Ramulifho

When dealing with disciplinary matters and individual labour-law disputes, greater focus has to be placed on managing such risks in a cost effective manner. Too many 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 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 his alleged unfair dismissal to the CCMA for arbitration. The employer had a strong case on the merits. 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 he was entitled to a 24-month (R400 000) settlement even though his dismissal was not an automatically unfair one. In the five days preceding the arbitration, the individual, his labour lawyer and the company’s advocate met three times. No amount of explanation, from both legal representatives could induce the emotionally charged individual to understand, for example, that he would not get an arbitration award remotely close to his perceived and legally unjustifiable entitlement, if anything at all.

It was only the day before arbitration, when he realised that he would have to represent himself, that he settled on three months (R51 000) and still had to pay his 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. A total 107 (90) minute tapes and a direct expense of R760 000.00 bear testimony to the duration and cost, notwithstanding the prosecutor having withdrawn many charges in order to save time and costs.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 000.00 was spent in legal fees. The dismissal was upheld. This was an unfortunate and costly exercise for the employer and for the emotional individual who had forsaken a R204 000.00 settlement and still had to pay his own 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 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 time and money.

From these cases it is obvious that one must always bear in mind that emotions do not win any arbitration or Labour Court cases, but that facts do. Rather use your head and not your heart when tying to resolve individual disputes, by facing practical realities and managing your risks.

If you need any assistance or advice, feel free to contact our Lesley Ramulifho at 012 342 9895 or Lesley@legaledge.co.za.