Introduction
Employers often fail to conduct thorough investigations into allegations of misconduct or poor work performance due to several reasons, including time constraints, emotional bias, or a lack of proper investigatory skills.
Case Precedent
This is clearly demonstrated in the case of G4S Secure Solutions (SA) (Pty) Ltd v Mlotshwa and Others (D267/21) [2024] ZALCD 26 (14 August 2024). In this case, the employee was dismissed for reckless driving after causing an accident. The evidence showed that the employee, while driving in the rain, held the steering wheel with one hand, appeared fatigued on internal CCTV footage, and admitted to feeling tired at the time. Despite these admissions, both the CCMA and the Labour Court found that the dismissal was unfair, with the Labour Court upholding the CCMA’s decision to reinstate the employee along with 15 months’ compensation.
At first glance, this decision may seem unusual given the employee’s admitted tiredness and careless driving behaviour. However, the core issue was the employer’s failure to prove a direct link between the employee’s fatigue and the accident. The employee argued that the accident occurred because the vehicle had hit a puddle of water, and the employer was unable to disprove this claim or even demonstrate that the puddle did not exist. Rather than relying solely on the CCTV footage and the employee’s fatigue, the employer needed to investigate the actual accident site. This would have involved checking for any road depressions or other conditions that could have caused the puddle, which might have led the vehicle to go out of control. Had this aspect of the investigation been completed, the employer might have had stronger grounds to challenge the employee’s defence and substantiate the dismissal.
Effective Investigations
This case illustrates a critical point: an incomplete investigation leaves gaps that can significantly weaken an employer’s position in disciplinary proceedings. Effective investigations are crucial to support the employer’s case and ensure fairness. Investigators need to adopt a comprehensive approach, covering all possible angles and addressing any plausible defences the employee may raise. This not only helps solidify the employer’s case but also avoids potential claims of unfair dismissal.
Skills Required
For an investigation to succeed, several key skills are required. Investigators must be capable of identifying all relevant evidence – including witnesses, documents, and other materials – and they need to engage with witnesses effectively to elicit complete and accurate facts. Investigators should also be able to recognise new leads as they emerge, remain within the legal boundaries governing workplace investigations, and put all the gathered facts into a clear and comprehensive report. Furthermore, questioning suspects without revealing they are under suspicion is another valuable skill.
Conclusion
Given the complexity of these tasks, employers should ensure that those responsible for investigating misconduct or performance issues are well-trained. Training in labour law and investigation techniques is essential for investigators to conduct their work effectively and avoid the pitfalls seen in cases like G4S Secure Solutions vs Mlotshwa. With the right training and a methodical approach to investigations, employers can significantly reduce the risk of unfair dismissal claims and other legal complications.
