WHAT TO DO WHEN . . . . STAFF ARE NEGLIGENT IN THE PERFOMANCE OF THEIR DUTIES - PART 5

ARTICLE 4

WHAT TO DO WHEN . . . . STAFF ARE NEGLIGENT IN THE PERFORMANCE OF THEIR DUTIES

PART 5

By Nikki Viljoen – N Viljoen Consulting CC - March 2008.


So here we are, still at the CCMA arbitration and now awaiting the verdict of the Commissioner.

Based on the evidence that was presented at the CCMA Arbitration hearing, the Commissioner rejected both claims made by George. You will remember that George stated that he had not received any training in relation to the search procedures and that he actually objected to his being transferred to this particular post.

The Commissioner said that he agreed with Mike’s rule that the searches should be conducted in a certain and specific way and he said that he thought that this was a valid way in which to perform this task. He approved of this particular rule. The Commissioner also said that he agreed that George had failed in his duty has he had not obeyed the rule. A problem arises later on though, when the Commissioner decides that George only contravened the rule as a mistake – in other words it was unintentional. George did not intentionally fail to adhere to laid down procedures – George made a mistake! But I digress and get ahead of myself – let’s return to the story where it is now.

The Commissioner also took into account Section 188(2) of the Labour Relations Act which states “when a person is considering whether the reason for dismissal is a fair reason, he must take into account the Code of Good Practice – Dismissal.”

Although the Commissioner did consider the Code, he considered, in particular paragraph 7 (of the Code), which states “that when a person determining whether dismissal for misconduct is fair, must consider whether the dismissal was an appropriate sanction.” Herein lies the problem!

You see the Commissioner decided that the right thing to have done, would have been to put George through “progressive discipline”. This meant that Mike should have tried to correct George’s behaviour by putting him through a ‘system of graduated disciplinary measures’. This meant that Mike should have put George through a counseling hearing and then several warnings before dismissing him, thereby indicating that he had really tried, hard, to get George to follow the correct procedure.

The Commissioner also decided that George’s long service record should count in his favour and therefore the George’s dismissal was too harsh a price for him to pay.

The Commissioner said that in view of the fact that the store did not appear to suffer any losses during this period, George had “made a mistake” and that his conduct in not following the correct procedures was ‘unintentional’ and throughout the whole process George had not been dishonest.

The Commissioner further stated that he did not believe that George’s failure to follow laid down procedures, had broken trust in the employment relations.

The bottom line here is that the Commissioner’s decision was to overturn the dismissal and Mike had to re-employ George and he was also ordered to pay George a whole bunch of money.

Not nice hey?

Next week I will be giving you my views on this matter.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za