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HR 101 – Preparing for Disputes – Part 1

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Please note that this pertains to South African Labour Law and Best Practice requirements.

Over the last few months, I have been inundated with clients who have had the need to discipline staff. In every single instance, although I have previously taken them through the “how to” and the “what to” with their staffing challenges, they have chosen not to listen to or take my advice. The result now is that they are deep in the smelly brown stuff and getting them out of it is going to be expensive. Had they but listened in the first place, none of this would have happened and they certainly would not have been in the space that they have now found themselves in.

In all of the instances, a huge amount of time and resources, not to mention cost has been spent to ensure that the damage is now contained and that it does not spiral out of control.

Preparation of documents and a comprehensive documented statement of account is vital, so ensuring that the telling of the story and how it unfolded is critical and whilst it is always a good idea to leave ‘emotions’ at the door, explaining how you felt, your perceptions and expectations is always a good thing.

Having your story backed up with documentation is extremely useful, but having witnesses who can corroborate your story and the documents is even better and in all probability the most powerful thing of all.

Remember however, that a disciplinary hearing is still a process and it doesn’t matter how powerful your case is, you still have to follow the process, especially the most basic of all of the processes and they have to be followed completely and to the letter of the law. Not doing so will actually make things a whole lot worse instead of better. So please take notice of this.

From there, depending on the outcome of the findings, the dispute may be referred to the CCMA for conciliation, con-arb or arbitration.

Please be aware of the fact that should the dispute go to con-arb or arbitration, the responsibility of preparing the case properly will be yours. So if you are not sure of what to do make sure that you get someone who knows what they are doing to help you and guide you through the process.

The reason that you need to prepare yourself properly is because you can expect to go through a court type hearing with all the relevant proceedings and processes. You see you will not only have to present your evidence in a manner that is professional, but yet concise and easy to understand – you will also have to respond to and try and counteract the evidence of your opponent, also in a professional manner. You have to come across as believable and ensure that what you have to say bears merit rather than malice.

There may also be a need for a “pre-arbitration” meeting with your adversary. In many instances this type of meeting could in fact resolve the matter, thereby removing the need for an arbitration meeting altogether. At worst the pre-arbitration meeting will assist in the reducing of time that it will take to complete the hearing or assist you in the preparation of the meeting. For the record though, although the CCMA would like the parties to have a ‘pre-meeting’ and that it could be to your own advantage to do so, the fact of the matter is that it is not compulsory.

Next week we will look at some of the most typical and also most important issues that can be discussed at the ‘pre-meeting’.