When dealing with employees’ misconduct, there are certain things employers need to do in order to ensure that they are following a fair procedure. A disciplinary investigation is a fact-finding exercise to collect all the relevant information on a matter. A properly conducted investigation can enable an employer to fully consider the matter and then make an informed decision on it.
A good case can turn bad when an employer has not conducted a thorough, consistent and objective disciplinary investigation, using a standard process.
How often has it happened that an employer feels comfortable with the outcome of a disciplinary hearing, feels that the evidence for or against the accused employee is clear and that the rule on the transgression has been consistently applied, just to find that the unfair dismissal case at the CCMA or the Bargaining Council turns out completely different than expected?
This is probably how the employer felt when it got the outcome in the case of CEPPWAWU obo Ramoroka and Camserve Systems (Pty) Ltd (2008) NBCCI 8.16.2. The Applicant (employee), an operator, was found by a manager to be sitting with his head on his chest, apparently sleeping, at 09:00 in the morning. He knocked on the table, tapped him on the shoulder and on his safety helmet, with no reaction. Only upon knocking him a little bit harder on the head, did the Applicant respond with a bewildered look. When asked about sleeping on duty, the Applicant apologised and walked out. Later on, the Applicant told the manager that he was on his tea break and was engrossed in deep prayer. He was aware of the manager, but first wanted to finish his prayer. The Applicant was then charged with sleeping on duty and dismissed.
During the arbitration, the Commissioner was faced with two mutually destructive versions of the event in question. The question was whether the employer, who had the burden of proof, presented enough evidence to prove that the Applicant was sleeping. This is where the employer erred. The Commissioner had to consider the versions of one witness on either side and ended up in the predicament where he could not find either of them unreliable. So what to do? The Commissioner found that he is not prepared to draw inferences in favour of any party. He simply did not have enough evidence before him to make a finding that the applicant was sleeping on duty, so he reinstated the Applicant.
Lessons to learn
- Do a proper investigation of the case against the employee by collecting all evidence, conduct consultations with witnesses and take written statements as far as possible. This will ensure that both parties’ interests are protected, as the employer will be able to establish whether the employee is in fact guilty of the alleged misconduct or not;
- Make sure the charge is supported by the facts, consider including alternative charges;
- The burden of proof is on the employer to show that the employee is guilty of the misconduct. Ensure that sufficient evidence is presented to pass this test.
If an employer knows what the defence is against the charge, investigate means to test the defence and bring evidence in rebuttal, if the defence is not credible.