Failure to have policies and procedures can be costly

firedLabour Matters Davies Ndumiso Sibanda
MANY labour cases that have cost employers are a result of negligent handling of labour recruitment and management in that the employers do not provide important documentation and follow procedures.
A few months back I dealt with a case of an employee who had been dismissed by a supermarket for failure to follow procedure and theft. He was given a dismissal letter as he arrived at work in the morning. He left and seven months later he was advised by a friend that his dismissal was unprocedural and he thus approached the NEC where the employer was advised to appear before the concilliator.

On seeking legal advice, the employer was told that the dismissal was unprocedural and as such he should reinstate the employee and discipline the employee as guided by the NEC code of conduct. He had to pay the worker nine months’ salary and reinstate him. This was an avoidable cost had the employer known the procedure for terminating a worker.

The employer’s challenges did not end there, on trying to follow the code of conduct to discipline the employee, it emerged that the alleged procedures that were said to have been violated by the worker were non-existent, the employer could not even build a case on implied procedures as there was no pattern showing what usually happens. At any rate implied procedures are difficult to prove.
Further, the alleged theft by the worker could not be proved as the employer’s processes for handling cash, which the employee was alleged to have stolen were porous. There was no CCTV or eyewitnesses to back up the employer’s story. In the end, the employer had to make a decision to accept the worker back or negotiate a separation package.

To avoid similar problems, employers have to ensure that their businesses have policies and procedures that address all areas that can be sources of conflict.

The first document that becomes a source of reference is the employer’s contract.
The contract must address all key legal matters as provided for in Section 12(1) and (2) of the Labour Act. The common argument that we agreed verbally cannot save an employer in case of a dispute over matters, which the Act expressly says should be spelt out.

Secondly, the employer has to craft a detailed job description to guide the worker and the worker has to sign the job description to accept receipt and that he has understood what is expected of him. However, the job description has to be supported by a performance management programme where the parties commit to specific standards and roles.

Where there is no performance management programme parties can meet as guided by the job description to review progress.
The job description has to be specific for example if reports have to be given monthly it must say so so that failure to produce the report in a particular month can easily be dealt with as an act of misconduct unless there is a reasonable cause for failure to do so.

Employers have to have clear policies and procedures covering all aspects of work. Where specific operating manuals have to be put in place, employers have to do so otherwise they will have problems arguing cases that involve failure to follow procedure.

Another document that is critical is the code of conduct. Many employers do not know the appropriate code of conduct, where they know it, they do not know how to use it and as a result they lose cases over failure to follow procedures.

Employers need not be misled into believing that failure to follow procedure is a minor defect as it depends, for example where the failure to follow procedures compromises fairness then failure to follow procedure is a fatal flaw.

In conclusion, employers have to ensure employees have valid contracts, have job descriptions and are aware of policies and procedures that are applicable to the workplace. Further, the justice system at work must be guided by the appropriate code of conduct.

Davies Ndumiso Sibanda can be contacted on:
e-mail:[email protected] or cell No: 0772 375 235

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