Please note that this pertains to South African Labour Relations and Best Practice requirements.
Winning at the CCMA as an employer is extremely difficult, usually because the employer is always the accused and as the accused you are always ‘seen to be guilty until proven innocent’! Is this fair? Of course not, but that is the perception and it is therefore up to you, as the employer to prove your innocence.
The most important three factors that you, as the employer need to take into consideration when attempting to convince the CCMA that you dismissed your staff member fairly are:
– that your employee was guilty of the offence, be it misconduct or poor performance. Having a case that is not ‘rock solid’ in this instance will just not cut the mustard!
– Trying to get rid of an employee because “you have too many”, does not help your case. If you are in this situation, bite the bullet and go the retrenchment route, don’t try and use evidence that is really not strong enough and not worth the paper it is written on – it will cost you more in the long run.
– Make sure that you can ‘prove’ your evidence. Many employers in a frustrated attempt to get rid of a ‘bad apple’ resort to illegal means to gather their evidence and make their cases stronger. This is really not a good idea and will also cost you big time in the long run.
Here’s the difference between what is legitimate and not:
– getting your facts together by conducting a proper and thorough investigation of the course of events.
– Using your policies, procedures, templates and any other documentation that were used, as proof to back up your facts.
– Using video footage or audio tapes (or any other electronic methods) or polygraph tests, stress tests, voice analysis, handwriting tests etc to back up your documentary evidence – remember the staff member will have had to give you written permission to perform these tests.
– Having witnesses who can corroborate your evidence and who will give testimony on the course of events as they occurred.
– Laying traps for the employee and supplying evidence of how those traps were laid and the course of events that employee followed and the result thereof.
– Using documentary evidence or video or audio evidence that has been falsified in any way.
– Using witnesses who lie in order to ‘prove’ your case.
– Forcing your employee to confess by using his family or his work etc. as the reason he should confess.
– Entrapment, which basically means that you lay a trap and then force the employee to fall into it.
Please don’t get confused between the two.
Next week I will give you a story example of exactly what entrapment is and highlight the difference between Trapping and Entrapment.