POOR CONDUCT CAN MEAN POOR MANAGEMENT
It does happen that an employee continues to break rules regardless of how well he/she is managed. However, in my experience this is more the exception than the rule. More often, consistent poor conduct reflects a management that is either unskilled or unwilling to manage employee conduct. As a result we may well find that employees:
It is not necessarily the manager’s fault that employees want to misbehave or to slack off. Laziness, disinterest or lack of caring can be due to the employee’s own character. However, where this is so, it is up to the manager to implement corrective measures that must either change the employee’s behaviour or, where this has been properly tried and failed, result in possible dismissal. That is, every manager and supervisor must know how to:
Many managers are unable to deal with errant employees effectively and just as many are unable to discipline employees within the bounds of the law. This results in employees getting away with serious misconduct which is badly damaging to the employer. For example, in the recently decided case of Faltyn vs Buffalo Flats Community Development Trust (2005, 2 BALR 183) Faltyn was dismissed for losing cash belonging to the employer. The employee alleged that the cash had been stolen from him. He had collected the cash the previous day and, instead of handing it in as he was supposed to have done, he had kept the cash with him. He had left work early without permission to do a personal errand and had been mugged the following morning on the way to work while he still had the cash in his possession.
The CCMA arbitrator accepted that:
Despite this the arbitrator ordered the employer to pay the employee financial compensation. This was because the same manager who had decided to charge the employee also presided over the disciplinary hearing. The fact that the manager had made the decision to charge Faltyn meant that the manager would have had knowledge of the incident prior to the hearing. For the same manager to then preside over the hearing rendered him a potentially biased chairperson because his prior knowledge of the incident could have influenced his judgement.
This is one of thousands of cases where such a technical error on the part of a manager has cost the employer money and has benefited an employee who was clearly guilty and deserving of dismissal. Often, this kind of error is the fault of the manager because the manager should have known better. However, more often than not it is the fault of the manager’s employer for having failed to:
EMPLOYMENT OF SEX OFFENDERS REGULATED
Certain employers could be prosecuted for employing sex offenders.
Legislation has been proposed (Contemporary Labour Law [CLL] Vol. 17) via section 45 of Chapter 6 of the Criminal Law Amendment Act 32 (CLAA) prohibiting, under certain circumstances, certain employers from hiring or continuing to employ sex offenders. For the purposes of this law “employers” are defined as those that employ staff who, directly or indirectly, deal with or come into contact with children or mentally disabled persons (MDP) in the course of their work.
While the CLAA is not a labour statute section 45 will directly affect the targeted employers and employees. Employers therefore need to understand all the provisions of the CLAA, to comply with all their legal obligations under this act and to do so in such a way that they do not infringe labour legislation protecting the rights of employees (whether they are sexual offenders or not).
The purpose of this legislation is to prevent employees from committing sexual acts against children or MDPs as members of these two population groups are normally unable to protect themselves from offences such as rape, sexual molestation and other sex-related infringements. It appears that the promulgation of this legislation this is a reaction to reports of such offences having been perpetrated in South Africa.
The scope of this legislation is not entirely clear but it appears that employers to be affected would include those who employ staff such as nurses, psychologists, doctors, teachers, airline staff, domestic workers, church employees and officials, scoutmasters, social workers, crèche staff, child counselling centre workers and other employees dealing with children or MDPs.
According to the CLL report the term sex offenders means, for purposes of this legislation, people who have, or who are officially alleged to have, committed sex offences against children or MDPs. The CLAA requires the establishment of a Register of such sex offenders. Employers, as defined above, may not employ persons whose names are on the Register or persons who have failed to disclose to their employers, convictions against them for sexual offences against children or MDPs.
This imminent legislation requires the employers in question to screen all job applicants and not to employ them if they are sexual offenders as defined. Furthermore, employers must screen existing employees and terminate the employment of those who they are not allowed to employ in terms of the CLAA. However, the employer may not terminate the employment if it is possible to transfer the sex offender to a post where there is no risk of him/her committing a sexual offence in terms of the CLAA. The employer is required to apply to the Registrar for a certificate stating whether or not he/she is on the Register of offenders.
Where the employee claims that his/her registration as a sex offender is erroneous or has lapsed the employer should give the employee a chance to apply for his/her name to be removed from the Register. This may require a suspension from duty of the employee for the period necessary to have the name removed. The CLAA does not clarify what happens if the employee’s registration as a sex offender lapses. That is, where the employment continues due to the lapsing of the employee’s offender registration and the employee then commits a sexual offence against a child or MDP, it is unclear what degree of liability, if any the employer will have. Employers are therefore advised to obtain indemnities and insurance against such liability.
Employers are further advised, before deciding to terminate such a sexual offender’s employment, to first hold a hearing to give the employee the opportunity to show why he should not be dismissed. Employers, as it is so often the case, are in a tight position. On the one hand the CLAA requires them to terminate or refuse the employment of such sex offenders. But, on the other hand, the Labour Relations Act (LRA) prohibits employers from terminating employment without good reason and without following fair procedure. The employer is therefore the meat in this legislative sandwich.
In view of the above dangers affected employers should obtain expert advice from a reputable labour law practitioner before acting against a suspected sexual offender. However, the employer should not delay in getting such advice as any delay could result in the employee committing a sexual offence at work which will put the employer in serious hot water. The CLAA provides for a fine and/or a prison sentence of up to seven years for employers who do not comply with section 45 of the CLAA. Added to this could be the damage and even ruin of the employer’s reputation resulting from the sensational media coverage that is likely to ensue in cases of sexual offences committed against the children and MDPs who the employer is supposed to be looking after.