I received an e-mail from a reader who was given a final written warning by her employer after a disciplinary hearing.
At the hearing, she was found guilty of negligence after allegedly failing to carry out her duties.
She is a personal assistant and was instructed by her superior to make twenty phone calls per day in order to update the company’s database.
At first, she was able to make the required number of calls while still carrying out her normal duties. However, due to her growing workload, she was later only able to make about fifteen of the requested calls per day.
On becoming aware of this, her employer gave her notice of a disciplinary hearing on the grounds that she failed to carry out her duties.
At the disciplinary hearing, she was found guilty and given a final written warning. She appealed the sanction, but it was upheld.
She held that she was not guilty and did not fail to do her duties as she was performing other work related tasks requested of her, leaving no time to make her full quota of calls.
She strongly feels that the employer’s action is unfair and would like to know what steps she could take.
To challenge the finding and sanction of the final written warning and in an effort to have it revoked, our reader can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). Her recourse will be to refer an unfair labour practice dispute relating to a disciplinary action short of dismissal.
She can either refer the matter herself or make use of the services of an attorney. The matter will first be conciliated. If unresolved, she will be able to refer it to arbitration.
In order to bring a dispute to the CCMA she needs to fill out the applicable form, namely the LRA 7.11, which is obtainable from the CCMA’s office.
Once the form has been completed, the employee has to serve a copy on the employer and thereafter to the CCMA. This may be done by fax, registered post or by hand. Irrespective of which option the employee exercises, proof of service – a fax transmission slip, registration slip or the employer’s signature – needs to be obtained and be provided to the CCMA.
It is very important to note that a dispute relating to an unfair labour practice should be referred within ninety days of the date of the act or omission, which allegedly constitutes the unfair labour practice.
According to the Labour Relations Act, legal representation is allowed at arbitration in disputes of this nature.
The reader should bear in mind that a final written warning is valid for a specific period of time, depending on the employer’s code. Should she be invited to another disciplinary hearing for the same alleged offence within this period, she may be dismissed.
It is therefore strongly advised that she refers the matter to the CCMA on the grounds mentioned earlier.
Should she proceed to refer the dispute to the CCMA, she will bear the onus on proving the unfair labour practice. In other words, she will need to prove that she was not guilty, as well as that the sanction (the final written warning) is too harsh.
If she proves her case, the finding and sanction will be set aside by the arbitrator and her employer will have to revoke and remove any record of the final written warning from her personal record.
In the event that the commissioner finds her guilty, she may still be able to succeed in proving that the sanction was too harsh. If successful with the latter, the commissioner may replace the sanction with one he deems reasonable.
It must be stressed that employees should not just accept disciplinary action short of dismissal, if they feel that it was unfair. An attorney should be consulted for advice to ensure the employee’s rights are not breached and/or that his or her rights are protected.
Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.
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