PCB Blog - Disciplinary Action
Disciplinary Action |
| 2011/10/19 |
|
Melanie Veness: PCB CEO Instituting disciplinary action in the workplace is not only stressful for the employer and the employee concerned, but also for other staff, especially when it ends in dismissal. Often too, it is a lengthly process, which makes it harder all round. It is critical that employees' rights are protected and that we have fair labour practice in our workplaces, but I can’t help but think that there is a cost to every protected right. Regardless of the substantive and procedural fairness of a particular case, a significant number of dismissal cases land up at the Commission for Conciliation, Mediation and Arbitration (CCMA). The reason is that the referral process is simple, free and unfortunately, lends itself to being abused by unscrupulous employees to make money at the expense of employers. The CCMA is currently dealing with over 100 000 cases every year, in addition to the cases being handled by the other labour law dispute-resolution bodies like the Labour Court, bargaining councils and private arbitration forums. My point is that it is relatively easy for a case to make its way to the CCMA, irrespective of the facts and to-the-letter procedures followed. Now, I know that conciliation is voluntary and that one can go on to present one's case at arbitration, but there are costs to that – monetary and emotional – so employers generally try to settle at conciliation. You end up weighing what it will cost you to defend your position in terms of future legal fees, time and a possible settlement amount, and settle if it makes business sense to do so. I suspect that employers often pay more than they have to just to get resolution. It is galling to have to pay a dishonest person in order to put an end to an unpleasant process, but it is often necessary so that you can move on. If you find yourself in this position and do have the wherewithal to see the process through, it may be a worthwhile to do so. The law does provide for employees to be penalized for bringing frivolous or vexatious disputes to the CCMA and we have seen in recent times that there is less tolerance for this kind of behaviour. In some cases, the employee has even been ordered to pay the employers' legal costs. Then again, the statistics do show that the decision goes against the employer in 60% of all cases heard. I guess it is up to each individual employer as to whether they decide to settle or defend. The best advice that anyone can give you is that you should try and keep the emotion out of the decision-making process. |
| Tags: Discipline(1) CCMA(1) Labour(7) Arbitration(1) Employee(3) Employer(2) |
| Comments |
|
Mark Wing 2011/10/21 07:01:25 AM I think that a disciplinary modules used by many companies tie themselves up in knots by working to the rule of 'In all probability of'and not like law which allows for the not guilty rule through lack of or insufficient evidence. It is as though at all costs, someone has to be found guilty. A very open ended conclusion to often, very messy actions. |
