For the past few years, we have been experiencing more cases on unlawful dismissal, and in some cases, we see employers spending unnecessary money to resolve an unlawful dismissal matter. This means that more often than not, employers find themselves at the losing end or in some cases; employers do not wish to spend the time and resources to defend a claim. In this issue, I would like to shed some light on some potential actions which might tip the scale in the employer’s favour.
Firstly, it is important for employers to realise that internal policies, culture and its people leaders are factors in deciding whether a dismissal is lawful or otherwise. If the blueprint suggests that the Company is in favour of positive reinforcements, it often leads to positive outcomes. Even if the dismissal is necessary after numerous attempts of reinforcing positively, the court might award some brownie points due to the attitude and culture of the Company. Don’t forget, positive reinforcement promotes bona fide (good faith) acts. Since the Industrial Court is a court of equity and good conscience, any acts suggesting a mala fide (bad faith) intention would certainly put the case into jeopardy.
Apart from acting in good faith, it is important to ensure that every situation is well documented. We believe that people are dismissed from work based with cause. However, in court, some employers find themselves in uncomfortable position because the cause could not be proven. The key to succeed here is to accept that case building is an important part of every case. If you build your case through the compilation of a solid document trail, you will not have problems explaining and establishing your case in court. Further, it is also important to understand that the legal process is a lengthy one. If experiences are not recorded, it is likely that you will forget certain key aspects of the case 2 years later in court. The chances of this increases if you are not used to presenting facts in a courtroom setting and you get nervous on that day.
Some key tips for you to gather from this article are:
- Case building and documentation is the key here. Make sure your documentation is tidy and complete enough to take you down a trip to memory lane 2 years later, or, just in case you decide to resign a year down the road. In that case, your successor must be able to go to court and present as if you were there.
- When dealing with a 50/50 situation, always remember that benefit of the doubt should be given to the employees. Instead of making a rash decision to terminate, you should explore alternative arrangements.
- Keep your emotions out of the way and be objective. Always seek consultation or a second opinion on whether you are acting in good faith. An indication of bad faith will change things completely.
- Embrace training and keep yourself updated. Laws are alive; so it is important to keep yourself up to date with the latest trends and developments.