An employee is pushing the boundaries. You get complaints about performance and client service. You call him/her in, express your discontent and tell them to do better. This happens a few times, but you just do not get around to formalising these little chats (who has the time, and who needs the conflict?). Then something happens that gets the attention of senior management / the Board / social media..........and all eyes are on you to address this issue once and for all. What do you do?
Famously, in our experience, a disciplinary hearing is called. This latest incident is taken and dissected to see how many of the boxes in the company's disciplinary code can be ticked in order to formulate as many charges as possible from this one incident - because this was now the last straw and the pressure is on to dismiss the employee.
So, the bulked-up disciplinary charges for the hearing include added charges like dereliction of duties; bringing the company's name into disrepute; and that all-time favourite: irretrievable breakdown of the trust relationship. The more charges, the better the chance that compounded sanctions on each of these will lead to dismissal, right?
Then, when you do your closing statement, you are sure to inform the chairperson about the pattern of conduct of this employee - that many chats have been had with them about their behaviour over a period of time, but that this has had no effect - so the trust is now gone and dismissal is the only option. You also, for good measure, mention some additional complaints from customers or co-workers that you have consistently received (but had not raised with the employee), that would demonstrate a pattern of behaviour by the employee that you can no longer be expected to tolerate.
All in a day's work, right? Surely dismissal must follow in the face of this overwhelming background and the stack of charges - not so?
Except that the chairperson then has some concerns:
Unfair splitting / duplication of charges - That is when the same set of facts / incident becomes multiple infractions (each with their own sanction) simply by giving it a different name in terms of the disciplinary code. The courts in cases such as Ntshangane v Speciality Metals [(1998) 19 ILJ 584 (LC) and Mushi v Exaro Coal 9Pty) Ltd Grootgeluk Coal Mine  10 BLLR 1134 (LAC) made it clear that multiple charges that are 'mutated' from one another or one incident clothed differently to make the misconduct appear more serious, was unacceptable.
Hence, the chairperson decides to ignore the 'labels' as set out in the notification, to distill everything down and to simply apply the principles in Schedule 8 of the LRA to determine if misconduct has been committed by the employee - i.e. asking if the employee's actions in this instance amount to a wrongful breach of a valid workplace rule/standard that s/he would have been aware of. As per the Labour Appeal Court in Nel v Construction Education and Training Authority and Others (PA3/17)  ZALAC 16 (10 July 2018): “(I)n misconduct hearings, one is not required to satisfy the criminal law requirements of any wrongdoing. All that is required is to establish if the employee committed misconduct, whether the misconduct was one of dishonest conduct ...... or something else, and the seriousness thereof. Labels are totally irrelevant, particularly to a criminal charge that is for the criminal courts to deal with.”
The chairperson further also makes it clear that, in determining whether the employee is guilty of the current misconduct, s/he can only consider properly presented evidence relating to the current incident that the employee has been called upon to respond to – and not any of the other unsubstantiated complaints casually mentioned during closing statements only.
Assuming you are able to provide enough evidence for the employee to be found guilty on the latest incident, it turns out that with all of the duplicated charges stripped away, the actual misconduct committed is not that serious that dismissal would typically be considered.
However, during representations for sanction ('aggravating and mitigating'), the following submissions are made:
You again raise this pattern of behaviour and all of the ‘chats’ you have had with the employee to address similar complaints. You also mention that you did in fact issued a warning to the employee for similar behaviour a couple of years ago. Given all this, you submit to the chairperson that indeed corrective action has clearly been shown to be ineffective and that a warning will serve no purpose – that dismissal is the only remaining option.
The employee, on the other hand, submits that s/he never realised that the company saw this behaviour as such a serious offence. Apart from that one warning two years before (as per the disciplinary code for a first offence), no formal disciplinary steps were taken subsequently to escalate this. The employee acknowledges the chats you have had, but submits that s/he has tried to do better each time and had thought that it was enough, since there was no further discipline or performance management until this sudden disciplinary hearing - and the first s/he knew about all those additional customer complaints was when you raised these during closing statements. The employee has 10 years’ service with the company and an otherwise clean record.
Now – put yourself in the chairperson’s shoes (or for that matter, that of an arbitrator) and consider what you would do in the circumstances when deciding on the appropriate sanction. Does it appear from the background above that the employee’s behaviour in this instance would suddenly have caused an irretrievable breakdown in the trust relationship – when on so many previous occasions it was only regarded as serious enough to justify an informal chat or at most a written warning? Could you blame the employee for not making more of an effort to rectify his/her behaviour when the seriousness of the infraction and the impact thereof on the business had not been pointed out to him/her and the consequences of persisting in such behaviour not clearly spelt out?
The chairperson in this case would be hard-pressed to recommend dismissal – and even if he/she succumbs to 'corporate' pressure and does so, an arbitrator may be less inclined to agree – with the likelihood of reinstatement and a ‘win’ for the dismissed employee being a distinct possibility.
It is up to managers to deal with staff problems as they arise – not waiting until the situation becomes desperate and then expecting it all to be dealt with retrospectively. In our experience, this especially happens in professional- or white-collar work environments where management prefers to avoid conflict and is more reluctant to tackle disciplinary- or performance issues head-on – until something happens that forces them to take action. Unfortunately, this just means that if it has gotten to a point where the situation has already become intolerable, but there is no formal record to reflect that a fair chance had been given to the employee to avoid disciplinary escalation in the face of persistent infractions, management cannot then expect a chairperson or arbitrator to step in and ‘cure’ their neglect by handing down a decision that is unjustifiable in terms of labour law principles.
Whilst dismissal is of course possible if the circumstances of a transgression are serious enough (even for a first offence), most disciplinary infractions are less serious and in all fairness, employees should know when and to what extent their behaviour or performance is not up to par, and what the consequences are if they persist in it. It is your responsibility as a manager to ensure that they do – and also to ensure that these consequences are applied when necessary, in order to attain and maintain acceptable standards.
So – as much as you may prefer to steer away from conflict and to keep it cordial with your subordinates by having discussions about problematic issues and hoping for the best, this can backfire badly down the line. In the scenario as described above, a warning of some kind will probably be the only outcome that will be able to stand up to legal scrutiny.
© Judith Griessel