By ianwebster, 14 June, 2017

One of the problems managers have when it comes to difficult, ineffective, poor-performing employees, is our emotional state. By the time we decide we must act, either because the behaviour has been going on for so long or the incident is so serious, we are really angry and want nothing more than to chase the employee out of the building and out of our lives. Where there is fraud or gross negligence or when poor performance is an ongoing source of frustration, we respond with anger and want to retaliate.

But anger makes us forget two fundamental rules of any legal process. One, it is not what the employee did or failed to do but whether we have enough evidence to convince a commissioner that the employee did it or failed to do it. Two, hear the other side (audi alteram partem). According the Constitutional Court judges in the famous Sidumo case, the employer’s interests do not outweigh the employee’s. The two meet as equal contenders. Both must be heard.

The following questions will keep you and your managers within the parameters of the Labour Relations Act (LRA), and specifically the Code of Good Practice: Dismissal. You will know whether you are dealing with misconduct or poor performance, whether you have a case, what the case is and the correct procedure to follow.

  1. What is the problem?

What did the employee do or fail to do?

Be explicit and write it down. If you cannot formulate the problem clearly, you do not have a case. Who did what, where and when?

  1. What is the rule?

What rule, policy or instruction did the employee disobey, or what standard was not met? It might be written or implied, company specific or generally accepted, but what is it? Write it out and add it to the problem you have identified.

  1. How would the employee have known about the rule?

Is it in a policy manual, the contract of employment or minutes of a meeting? Was there a verbal discussion? Were there witnesses? If the employee says, ‘I didn’t know about the rule,’ how will you prove that he did?

  1. What evidence do you have?

How do you know that the employee did or failed to do whatever it was? What evidence do you have? Is there physical evidence, verbal testimony or is it just a guess?

List each issue, the evidence you have and who your witnesses are.

The following questions are more subjective and must, therefore, be answered very carefully.

  1. How serious is it?

For example, did the company suffer any loss or potential loss? In other words, why does it matter? There does not have to be any physical loss to make the matter serious, but if there was no loss, why is it a problem?

  1. How has it affected the employee’s relationship with you and with the company?

Will you be able to continue working together? If not, why not? Dismissal is always the last resort. You will have to explain how the trust relationship has broken down and why it is irreparable. A chairperson or commissioner can only dismiss on the basis of evidence you provide. If you do not show the impossibility of continued employment, they cannot dismiss.

  1. What has happened before?

Finally, what has happened to other employees who have done something similar? Fairness expects similar action for similar offences. Do special circumstances apply to this case and this employee?

Nothing is more important than this investigation, nothing. Do not assume you know what happened or why it happened. Listen to what your witnesses are saying. Will what they say convince a Commissioner?

First Published on Simply Communicate



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