Please note that this pertains to South African Labour Relations and Best Practice requirements
To be quite honest, this particular case “bent” my mind in several different directions simultaneously, and not in a good way either.
What it also did however, was clearly highlight the need to use someone with the highest level of labour law expertise when conducting disciplinary hearings that may result in dismissal.
Let’s bring out the protagonists.
Mike owns a small paint factory in one of the industrial parks. He is very conscientious about the health and safety issues around what happens in the factory because of the paint fumes and chemicals that are used and how badly they can react with one another. All the staff are trained on safety issues on a regular basis and safety drills and evacuations take place quarterly. Mike employs around 100 staff members.
Mike walks onto the factory floor and with the usual smell of paint fumes he detects another underlying smell. Mike is very concerned when he realized that that smell is in fact gas. He issues an instruction for all the staff to leave the premises immediately, while the problem is investigated.
The usual procedure is for staff to meet in the lower car park, several hundred meters from the factory. When they do the drill the evacuation generally takes less than 15 minutes.
Mike contacts his service provider and the authorities to report the problem and then goes to join the staff in the car park to wait for the technicians to arrive, investigate the problem and then proclaim the factory safe or unsafe. If the factory is declared unsafe the staff will be sent home until such time as the ‘all clear’ is given.
Mike gets to the car park around 20 minutes after his instruction to evacuate was issued and some of the staff are still taking a leisurely stroll to the car park from the factory and not only that, it is also clearly evident that many of the staff are not present and accounted for.
After chatting to the safety officers and investigating the issue further, it was discovered that many of the employees just did not follow the correct procedures – some just took their own sweet time to get to the safety of the car park and some went straight home without even reporting to the car park.
Mike was furious, and understandably so – what if the factory had exploded while staff were still inside. What if they were looking for the bodies of people who had actually gone home and even worse, what if the safety officers or authorities had gone into the building to ‘rescue’ those that had not come out and the factory had blown up whilst they were inside and the people who they were supposed to be rescuing were safe at home. Clearly this was not acceptable at all.
Every person who had arrived late (after 20 minutes of the instruction to evacuate was originally given) as well as everyone who went directly home, were required to attend a disciplinary.
So far so good, I am sure you will agree – but here is where the whole thing goes pear shaped. You see, some of the employees were issued with final written warnings and some were dismissed. The dismissed staff took Mike to the CCMA.
The arbitrator found that the dismissals were ‘too harsh because the dismissed employees has shown “genuine remorse”’
Wow! So it doesn’t matter that someone could have been killed going in to look for them whilst they were safely at home, but they were ‘sorry’ so that’s okay then. Now that is not good for me at all!
What is also not good for me though, is the lack of consistency with the penalties issued at the disciplinary hearings – for me personally, that is where most of the problem lies and whether they showed ‘genuine remorse’ or not should have been featured as part of the mitigating circumstances. I understand that they were all given individual hearings (as they should have been), but the fact of the matter is that they did not follow safety procedures and because of this they put other people’s lives at great risk.
Let me put it this way – if Mike had ignored the problem and not followed the safety rules and the factory had blown up and the staff had been killed, but he showed ‘genuine remorse’ would his liability, responsibility, accountability and ultimate penalty, been reduced? I doubt it.
Once again this evidences the need to have someone with the correct legal HR ‘know how’, when dealing with these matters as the law is always open to interpretation.