So a few weeks ago, we had to settle with an employee who should not have received a cent. We advised the client that it was going to be a tough case to defend at CCMA, despite the employee’s incredibly hostile attitude towards management and colleagues in the time leading up to his dismissal. It had all started months before… and that’s where the problem was.
Some types of misconduct, like habitual absenteeism, abuse of sick leave and poor work performance normally come with a history, some prior indications that the employee was becoming a problem. They don’t just happen overnight. They can’t, hence terms like “habitual” or “continuous”.
The problem with our “case study”, was that the employee’s performance was good when he started working some years back. Over the last few months however, he’d been working slower and slower and making some minor mistakes. Not to the extent that it damaged the business, but it was noticeable. Management, feeling that he had served the company well for the last 5 years, decided not to intervene. Perhaps it was just a passing phase. So they let it slide.
The employee also started coming to work later and later, 5 or 10 minutes late at first, but later escalating to 30 to 45 minutes at least once a week.
Only recently, when the employee botched a job that cost the company a few thousand rand to fix and a damaged relationship with a client that needed mending, management decided perhaps it was time for the employee to seek greener pastures. They notified him of a disciplinary enquiry, followed all the right procedures and the chairman (one of the management team) dismissed him. He subsequently went to the CCMA, claiming unfair dismissal. The commissioner supported my original prognosis and I convinced the client to settle. The employee wanted 6 months’ pay, but we got it down to 3. Still a lot of money though.
The problem was not whether he had been guilty of misconduct. In fact, despite aggressively pleading not guilty at the enquiry, in cross-examination he acknowledged that the job he’d botched had been his fault, having performed that same task many times before. He also acknowledged that he had no personal problems, but had lost interest in the work and the company.
The problem? He insisted that the dismissal sanction had been too harsh, as he had a clean disciplinary record. And, unfortunately, he had a point.
Although the LRA allows for dismissals for first offences, those offences must be of such a nature that continued employment is likely to severely place the business and / or its staff / customers / property at risk of some kind. Extreme violence, incitement and drug dealing are some examples of such offences. But a gradual decline in work performance and attitude, left unactioned for months, is looking for trouble. And that trouble will result in wasted time and money.
Employers, please make sure your house is in order. The CCMA does not take kindly to a slack attitude to progressive workplace discipline.
We know it’s a bit of work, it’s boring and tedious. But that’s why WE are here. We’ll take care of it for you, leaving you to take care of your business and sleep peacefully at night. Just give us a call.
Remember: prevention is cheaper than cure!