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So, you have done your investigation (see ‘Seven Questions You Need to Ask Before a Disciplinary Enquiry’), collected the evidence, written out the allegations and issued the Notice of Enquiry. Now you just wait for the enquiry to happen, don’t you? Not quite.
There are two things you will have to establish for the chairperson, or the commissioner at the CCMA. Go back over all the evidence for each allegation and make sure you can establish the facts and establish the seriousness of the misconduct.
Establish the facts
The evidence you present, whether documents, reports or direct statements, must establish the facts. You must show that the employee did or failed to do what he is accused of.
Look at the evidence again. Whose testimony will you use? Which documents are necessary for establishing what happened (or didn’t happen)? Decide what you will use and in what order. What questions will you put to each witness to bring out his or her testimony?
Do you have enough to establish the facts?
Establish the seriousness
So, your evidence has shown that the employee was indolent, insolent, insubordinate or just plain incompetent. But how serious is it? What does it matter? What difference does it make to your business, the department, the work getting done?
If you don’t establish for the chairperson or the commissioner just how serious the misconduct is, they will have to guess. And their guess, if they are doing their job correctly, is unlikely to be ‘Requires dismissal.’ What evidence, whose testimony, will you bring to show how serious this event was or could be for the organisation and for the relationship between employee and employer?
If the trust relationship has broken down, you will have to explain why and whether it is irreparable.
In the case of Edcon Ltd v Pillemer NO and Others [2009] SCA, the employee had been found guilty of dishonesty. Her dishonesty was quite bizarre and ongoing. She continued to lie almost to the end. On first reading, it would appear that dismissal must be the obvious result.
However, the judges supported the CCMA commissioner’s finding of unfair dismissal. Mlambo JA referred to an earlier case (De Beers Consolidated Mines Ltd v CCMA & others (2000)) where Conradie JA had stated: ‘The seriousness of dishonesty … depends not only, or even mainly, on the act of dishonesty itself but on the way it impacts on the employer’s business’.
And Mlambo went on to say, ‘But to get here, evidence showing adverse impact, if any, on the business is critical.’
In other words, serious misconduct does not automatically mean dismissal. The employer must show that a continued relationship would be intolerable. In the Edcon case, the employer failed to present any evidence of the breakdown in the relationship, and the case was lost at the highest level.
What will you do to establish the facts and establish the seriousness of the misconduct?
First published on the Simply Communicate website
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