Please note that this pertains to South African Labour Relations and Best Practice requirements.
I recently read an article on how a business owner who gave his staff member a final written warning for a genuine transgression, then lost the plot and fired the staff member for having a ‘negative attitude’, when he refused to sign in receipt of the warning.
I laughed – you know those great big belly laugh , laughs – yeah, one of those!
You see of late, there have been a huge number of debates (and believe me they often get quite heated), on this very topic.
The debates often erupt around HR and labour issues and they can get really heated and emotional because they are often seen as very unfair and usually leaning towards the rights of the employee and very seldom are about the rights of the employer.
Let’s put a little bit of a spin on this story and use my usual protagonists.
Mike owns a plumbing business and he is extremely busy. George is his ‘right hand man’ and Mike is trying to give him ‘on the job’ training, not only the technical and practical aspects of plumbing, but also the responsibility and accountability of doing a job well and looking after the company assets as well as giving the clients a good service.
Sometimes Mike feels that his working life is made up of his teams rushing from one job to another. There always seems to be a pipe that’s burst in one complex and geyser in another. Due to the ‘lack of skills’ pandemic that has hit the world with a resounding ‘thump’, business is good and Mike is doing well.
George is really grateful to Mike because for many years he did not have a job. Mike treats him well and he is paid a fair wage for what he does and Mike is teaching him all the tricks of the trade. George has a dream that one day he will own his own plumbing business.
George loves learning about the plumbing side of the business. He loves to learn about the different types of pipes and where they go and he loves to see the different tools, all laid own in a row and he is particularly proud of the fact that he knows which tools to use when.
What George hates though is to ‘pick’ up and ‘clean up’ after himself. He hates to have to put all the tools back in exactly the right space in the tool box or in the bakkie and he thinks that Mike is a real ‘fuss pot’ when he goes on about tools that are lost, but aren’t really because they are usually on the bakkie, just not where they are supposed to be. George already has two written warning on his file for not putting the tools away properly or in the right place – “Yes”, George thinks to himself, “Mike makes a big fuss about nothing!”
Mike and George are just finishing a job in a complex, when a call comes in about a burst pipe in another complex and by the sound of it, it’s a real gusher! Mike instructs George to pack up all the tools and ladders quickly, whilst he finishes up so that they are ready to dash to the broken pipe as soon as he is finished with this repair.
As usual George does not take care as he throws the tools into the back of the van and hurriedly puts the ladder onto the roof rack on the van. George is thinking about how the pipe is going to be fixed and what tools should be used and whether Mike will let him fix it by himself.
Mike comes out having finished what he was doing, gives a quick glance into the van to see if everything is where it should be, raises an eyebrow at George when he sees it isn’t , but there is no time now to repack everything as every second delay means hundreds of litres of precious water being wasted.
Mike jumps into the van and off they go.
Mike is still moaning at George about the state of the tools in the back of the van as they whiz up the road and he has to slam on brakes as a pedestrian steps into the road in front of him. Mike swerves, narrowly missing him and as he straightens up again he hears a horrible scraping sound, the angry sound of a hooter and the screeching of brakes behind him and then a huge ‘bang crash’ as something metal hit something else metal!
Mike brings the van to a halt at the side of the road and gets out of the van with a very sick feeling in the pit of his stomach.
Behind him, a brand new Mercedes Benz has also come to a halt at the side of the road. The Mercedes Benz however has a steel ladder sticking out the passenger side of the windscreen. Yep – you’ve guessed it – George forgot to secure the ladder and it has now caused thousands of Rands worth of damage (thank goodness no-one was hurt) as it went through the passenger side of the windscreen.
Shaken and shocked, Mike was both relieved that no-one was hurt but also horrified at the extent of the damage that had been caused unnecessarily. Over and above that, Mike was furious with George (quite rightly so) because he had not followed the correct procedure when returning tools and equipment to the van.
Justifiably, the next day Mike handed George a final written warning for not following procedure and instructed George to sign in receipt of the written warning. George, in his understanding that this was his ‘final’ written warning and now scared of the consequences, refused to sign the form. This of course is where the whole thing goes pear shaped and falls apart. Up until this point, Mike has done everything correctly.
Mike in his anger and frustration at getting George to do things correctly as well as facing a huge financial bill (being the excess of insurance etc.) as a direct result of George’s inability to follow simple procedures perceives this refusal to sign in receipt of the document as George’s refusal to accept responsibility and ultimately the consequences of his actions. Mike dismisses George for being negative and having a bad attitude.
George of course, went straight to the CCMA and Mike ends up having to pay George out 4 months’ salary to add insult to injury.
Mike is obviously outraged at this injustice and so the war between the SME’s and the Department of Labour continues.
Here is the thing though . . . . nobody, and I mean nobody can be forced to sign anything and George not signing the document actually has no real meaning or value at all. Mike could have merely documented that the warning discussion took place at the date, time and place (as indicated on the form) and that George had refused to sign the document. If Mike really wanted to prove a point, he could have called any one of his staff in to witness that he had given George the document and the witness could have signed that this was so. End of story. Quite simple really.
Dismissing someone for having a ‘negative attitude’ or indeed, having a ‘bad attitude’ or any other kind of attitude for that matter, is really quite ridiculous and no wonder it was thrown out for being ‘unfair labour practice;’
Had Mike just followed the correct procedures, the outcome would have been completely different.
Following the correct procedures to the letter of the law will usually ensure that justice prevails.