Beware Victimising Workplace Grievants

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.

All grievances should be treated with great care in order to establish their validity and to ensure that they are given appropriate attention. Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit.

However, more often employers go to the opposite extreme and brush all grievances aside because they feel that they are not there ‘to deal with employees’ sob stories’ or because the statutes do not provide for the lodging of grievances. While it is true that no statute specifically requires employers to solve their employee’s personal problems there are many circumstances under which employers would be foolish to ignore grievances. For example:

• Where the continued existence of the problem affects employee morale this may in turn cause a drop in productivity, increases in wastage, resignations and even conflict. This normally occurs where the resolution of the grievance is seen by the employees as the employer’s responsibility. This would for instance be so if the employer moved premises resulting in commuting problems for the employees.
• Where employees are being abused verbally or physically by a manager the practical and legal consequences for the employer could be dire if the employer does not act quickly, fairly and effectively. This would be the case, for instance, where the employee is being sexually harassed, insulted or bullied.

Employers are reminded of the expensive consequences for the employer in the Real Security case we discussed some months ago. There the employer had to pay tens of thousands of rand in compensation to the employee who had been sexually harassed by a supervisor because the employee’s grievances were ignored by the employer.

Employees whose salaries are not paid to them and receive no satisfaction from the employer when expressing such grievances are, under specific circumstances, entitled by law to resign and take the employer to the CCMA or bargaining council for constructive dismissal (a type of forced resignation).

Some employers not only ignore all employee grievances but also victimise certain employees for raising those grievances. Such employees are arbitrarily labelled as ‘trouble-makers’ and are told to ‘like it or take a hike’. In Sweet (James) v Namcon Logistics (Pty) Ltd[2021] 1 BLLR 104 (LC) a warehouse manager was dismissed for negligence. He claimed that his dismissal was automatically unfair because it was implemented in response to grievances he had lodged. The Court found that:

• Victimisation of an employee for lodging grievances does not breach the provisions of sections 187 or 5 of the LRA
• the employer’s reasons for justifying the misconduct dismissal were unconvincing
• While the employee had not lodged a dispute at the CCMA regarding his grievances he had indicated that he intended to take legal action in this regard
• The employee had been dismissed because of his intention to take legal action against the employer which was in breach of the LRA’s provisions according to an earlier Labour Appeal Court decision.

The applicant was awarded compensation equal to 24 months’ remuneration and the respondent was directed to pay his costs. In the light of the above it is crucial for employers who receive grievances:

• To ensure that the grievant is not mistreated in any way after having lodged the grievance
• To investigate each grievance thoroughly while keeping an open mind
• Judge the validity of the grievance based on the facts and not based on who has lodged the grievance or who has been named in the grievance.
• If there is any merit in the grievance use an industrial relations expert to help devise an appropriate solution that will not create a problematic precedent.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.