Employers, especially those involved in the hospitality and service industry, are understandably considerate of clients’ perceptions of their service and employees’ conduct towards their clientele. Since the turn of the century, employers have often turned to review platforms with the adage “the customer is always right” firmly in mind. However, this mindset cannot be absolute and must account for notions of fairness in terms of labour law. This “balancing exercise” begs the question of whether employees may be disciplined based on these written client complaints.
The legal principles
The basic tenets of employee discipline are firmly entrenched in Schedule 8 of the Labour Relations Act, 66 of 1995 (also known as the Code of Good Practice). From this Schedule, it is readily apparent that an allegedly offending employee has a right to a procedurally fair disciplinary hearing, which, in a broader context, would include the right to state their case and face their accusers. The complications of a written client complaint at a disciplinary hearing.
There are multiple intricacies at play when dealing with a written client complaint. An employer does not want to risk writing the complaint as nothing more than a feeble matter. However, a written client complaint is very tricky, as it is a complaint that a client has written off-premises, most likely after their experience with the employer. This poses a practical conundrum for an employer, as they must now investigate the matter based on the written complaint, often without the luxury of having a face-to-face conversation with the client.
This leads to a situation where employers initiate disciplinary hearings and merely present the allegedly offending employee with the written client complaint without calling the client to confirm the contents of their complaint. In these cases, an employee could either agree with the material aspects of the client’s complaint or deny these aspects.
Case Study
In the case of Magic Company v Commission for Conciliation Mediation and Arbitration and Others (C682/03) [2005] ZALC 37 (19 January 2005), Murphy AJ was tasked with the review of this exact issue. In this matter, the employee was dismissed based on a customer’s written complaints of abysmal service, which the employee vehemently denied at her disciplinary hearing. The employee insisted that the customer be called to the hearing but to no avail.
Eventually, the employee was reinstated at arbitration, and this decision was upheld on review. Murphy AJ noted that, whilst employers are often afforded leeway about the strict rules of evidence and procedural compliance, employees undoubtedly have the right to challenge their accusers directly. Thus, if the accuser is not available to be cross-examined, the employer should at least have other corroborating and testable evidence to substantiate the contents of the written complaint they have presented.
Practical implications for employers
When a client complains, an employer should always aim to agree with the client so that they can testify at any future enquiry. Should the client refuse, the employer should ask the client to make a sworn statement, whereafter, the employer should find corroborating evidence to present at a hearing. Also, the employer should reach out to the employee before a hearing and try to establish whether the employee disagrees with the statement and, if so, narrow it down to the aspects with which the employee disagrees.
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