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  • DEALING WITH THOSE INCIDENTS WHICH OCCURRED DURING THE FESTIVE SEASON
  • DEALING WITH THOSE INCIDENTS WHICH OCCURRED DURING THE FESTIVE SEASON

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    Many companies, especially those in the hospitality and tourism industry, may have experienced some employees committing misconduct during the festive season but decided to not take action against them at the time because the business was very busy during the season.

    This misconduct may have included unauthorised absenteeism, being under the influence of alcohol or drugs while at work, or a range of offences from insubordination and insolence to theft and fraud.

    Now that the season is over, owners want to take action against the employees who committed these offences.  However, these employees are now stating that because so much time has passed since the alleged offence occurred, and because the employer allowed them to continue to work even after discovering the alleged offence, the employer has in fact condoned their actions and cannot now claim that the trust relationship has been irreparably breached.

    Now, that is a clever attempt to avoid the consequences of your misconduct but does it hold water?

    Generally, discipline needs to be implemented as quickly as possible after the commission of the offence and the conclusion of the investigation, in order to have a corrective effect. The unreasonable and unnecessary delay between the discovery of the alleged infraction and the laying of charges against the employee should be avoided.  However, in labour legislation, there is no time limit stipulated.

    On the other hand, there are several Labour Court cases which make it clear that the institution of an investigation and the proffering of charges against the accused employee must not be delayed unnecessarily.

    A delay in holding the hearing could be justified for a number of reasons:

    • The need to complete a thorough investigation before proffering charges (including consulting with an attorney or consultant for advice);
    • The unavailability of evidence (e.g. video footage that needs to be obtained)
    • The unavailability of the employee (due to absence);
    • The unavailability of the employer (especially in smaller establishments); and even
    • If the holding of the hearing would be inopportune and cause unnecessary disruption to the operations of the business.

    The idea of the principle “justice delayed is justice denied” is that an unreasonable delay can cause serious prejudice for the employee concerned. It could also lead to the conclusion that the employer has abandoned its right to take disciplinary action against the employee. However, a lengthy delay is not necessarily unfair as the context and reason must be considered to determine whether the delay would affect the overall fairness of the hearing. This would be evaluated on a case-by-case basis. There are no hard and fast rules.  However, some guidelines on what may be considered unreasonable and unfair are:

    • The longer the delay, the more likely it is that it would be unreasonable.
    • The employer must provide an explanation which reasonably excuses the delay. A delay that is inexcusable would normally lead indicate unreasonableness.
    • Whether the employee has taken steps in the process to assert his/her right to a speedy process. In other words, did the employee stand by and do nothing.
    • Did the delay cause material prejudice to the employee? What impact would the delay has on the ability of the employee to conduct a proper case.
    • The nature of the alleged offence must be taken into account. The offence may be very serious (such as a dishonesty) and must be dealt with timeously.
    • All the above considerations must be applied, not individually, but holistically.”

    Thus, the question is not “what is the maximum period allowed between commission of the offense and the institution of disciplinary action,” but rather the reason for the delay is the important factor. In disputes of this nature, the employer would be required to explain the reasons for any undue or unreasonable delay. Provided that the delay can be justified – and provided that the employee was kept of progress during the investigation, or kept informed of the reasons for the delay, there should not be a problem.

    For more information on the above topic, please contact LabourNet Eastern Cape at Regional Support: 087 292 5808. Contact: Phikolomzi Malamlela (060 6428 659) at pmalamlela@labournet.com or Robert Niemand (082 824 7359) at robertn@labournet.com

    Visit our website at www.labournet.com

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