A disciplinary investigation is a fact-finding exercise to collect all relevant information on a matter and is designed to test allegations or suspicions. It is something that the employer needs to do to ensure that a fair procedure is followed. A properly conducted investigation allows an employer to fully consider the matter and make an informed decision in establishing whether there are grounds for disciplinary action.
If an employer has not conducted an objective, thorough and consistent investigation, what seemed to be a good case, can quickly turn bad. Employers are often faced with a scenario of feeling comfortable with the evidence against or for an employee being clear and unambiguous and confident with the subsequent outcome of a disciplinary inquiry, only to find that the outcome at the CCMA or Bargaining Council for the unfair dismissal case is contrary to what was expected.
CEPPWAWU obo Ramoroka and Camserve Systems (Pty) Ltd (2008) NBCCI 8.16.2
In the case of CEPPWAWU obo Ramoroka and Camserve Systems (Pty) Ltd (2008) NBCCI 8.16.2, the Applicant, an operator, was found by a manager to be sitting with his head on his chest, apparently sleeping. He knocked on the table, tapped him on the shoulder and on his safety helmet, with no reaction. Only upon knocking him a bit harder on the head, did the Applicant respond with a bewildered look. When asked about sleeping on duty, the Applicant apologised and walked out. Later on, the Applicant told the manager that he was on his tea break and was in deep prayer. He was aware of the manager but first wanted to finish his prayer. The Applicant was then charged with sleeping on duty and dismissed.
During the arbitration, the Commissioner was faced with two conflicting versions of the event in question. The question was whether the employer, who had the burden of proof, presented enough evidence to prove that the Applicant was sleeping. This is where the employer erred. The Commissioner considered the versions of one witness on either side and ended up in a predicament where he could not find either of them unreliable. The Commissioner found that he was not prepared to draw inferences in favour of any party. He simply did not have enough evidence before him to make a finding that the applicant was sleeping on duty and consequently ruled that the Applicant be reinstated.
TGWU obo Joseph and others v Grey Security Services (Western Cape) (Pty) Ltd (2004, 6 BALR 698)
If an employer fails to properly investigate alleged conduct it could be costly, as was seen in the case of TGWU obo Joseph and others v Grey Security Services (Western Cape) (Pty) Ltd (2004, 6 BALR 698), where a number of security guards were dismissed after the employer’s client requested that they be removed from their premises for having been involved in dishonest practices. The employees refused to be transferred from the client’s site and were therefore dismissed. The CCMA found the dismissals to be substantively unfair because the employer had not investigated the client’s allegations of dishonesty against the guards, the employer was ordered to reinstate all the employees with full back pay and to pay their costs.
To avoid being in a situation like the above, prior to a disciplinary inquiry taking place, it is imperative that all the relevant evidence is collected and that all relevant witnesses are consulted, to obtain as much information as possible pertaining to the allegations. This will ensure that both parties interests are protected. The charge needs to be supported by facts as the burden of proof is on the employer to show that the employee is guilty of the misconduct and sufficient evidence needs to be presented to pass this test.
The length and extent of the investigation is dependent on numerous factors, including, the nature of the case, the magnitude of the evidence as well as, if applicable, the availability of witnesses. It is important that employers ensure a proper investigation takes place and that they are able to convincingly prove guilt on the part of the employee prior to instituting disciplinary action. Invictus is able to provide employers with guidance on the correct processes to follow.
Contact Invictus on 0861 737 263 for us to assist you through the process.