Tanya Venter
For the past five years, the single biggest reason for referral to the Commission for Conciliation Mediation and Arbitration (CCMA) and bargaining councils has been dismissal.
According to stats released in the latest edition of the Dispute Resolution Digest, an annual journal released by Tokiso Dispute Settlement, since 2006, when the publication was first launched, year on year, alleged unfair dismissal has been the source of contention between employees and employers in more than 80 percent of cases.
This amounts to about 160 000 dismissal disputes referred each year. Misconduct accounts for two-thirds of dismissals. Dishonesty-related offences (general dishonesty, theft and fraud) accounts for a third of the misconduct dismissals.
Workplaces may well be reflecting high levels of crime in society.
The other three major categories of misconduct are absenteeism, insubordination and negligence.
Absenteeism is often a “one, two, three, you’re out” offence, while insubordination and negligence may be a once-off event that was sufficiently gross to warrant dismissal.
Half of the arbitrations are in favour of employees – or, put differently, employers get it wrong half the time.
After 16 years of the Labour Relations Act, one would expect employers to know when they can dismiss an employee.
Disturbingly, this statistic is not getting better – employers don’t appear to be learning from their mistakes.
What does skew this figure is the high number of default awards given in cases where employers do not attend the process.
Statistics show that this occurs in about a third of the arbitrations. In these circumstances, awards are most likely to go in favour of the employee who has attended.
The compensation awarded to employees is also on average higher in these cases. What this says is that employers often ignore the notices received from the CCMA, but at their own peril.
Where employers do attend hearings, they are more likely to win in misconduct-dismissal cases – with more than two-thirds going in their favour.
Yes, we have high levels of misconduct in the workplace.
Employers appear to dismiss readily for misconduct in particular. However, employers need to follow principles of justice and common sense when dismissing to get better outcomes in arbitrations. By simply attending hearings at the CCMA and bargaining councils, they are likely to ensure that fairness prevails, for themselves and the employee.
l Tanya Venter is CEO of Tokiso Dispute Settlement. The Dispute Resolution Digest is published by Juta. To buy a copy go to www.tokiso.com
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