Davies Ndumiso Sibanda
Many organisations that lose disciplinary cases before outside labour tribunals wrongly put blame on human capital practitioners yet decisions to dismiss an employee will not have involved them.

Many disciplinary procedures do not involve human capital practitioners, they are merely important advisers throughout the process. Unfortunately, many senior managers do not take the professional advise of human capital practitioners and opt to do their own thing and when the case is messed up, it is thrown to the human capital practitioner.

I recall a case against a foreman which had no thread of evidence and the human capital practitioner advised that there was no case against the foreman and he went on to give his legal position and case law to support his position. The General Manager overruled him and dismissed the foreman. When the matter went to the Labour Court, the foreman was reinstated. The court cited cases that had been given by the human capital practitioner.

The Board was not impressed by the cost of reinstating the foreman after four and a half years. The amount of backpay was huge in USD and the employer had been given 30 days to pay, a thing that would impact negatively on cashflow.

When I was contracted to find out what had gone wrong, I discovered a number of things were at play. First, the General Manager was new at the time and did not trust the managerial team that was there and as such he was on a mission to remove some managerial employees and replace them with his own boys. At the time of my investigation, he had dismissed four other managerial employees and replaced them with people he had worked with before.

I looked at each of the four cases as they were pending before the Labour Court and could not see any prospects of success. I sought a second opinion, the answer was the same. I then recommended sitting with the four guys instead of facing them in court. Further, I recommended the censuring of the General Manager over nepotism. This was not an isolated case, there are many cases like that and have been handled in different ways so as to balance discipline with justice and business prudence.

I have also dealt with cases where innocent brilliant subordinates are viewed as a threat to the boss that despite human resources advise, they are dismissed on flimsy reasons at a huge financial skills loss cost.

There are also cases of chief executives who are more powerful than board members and as such they can dismiss employees at will at a cost despite the fact that employee dismissal is a form of asset disposal and one of the core functions of the board is to preserve the organisation’s assets. In such cases, the human capital practitioner ends up singing for his supper through wrongful dismissing people and settling Out of Court and litigating at any cost until the worker runs out of money to fight or the worker wins the case at the highest cost.

Not long ago, I met a case of a Head of Department at the Human Resources Executive telling him that the Code of Conduct is express in that HODs are responsible for discipline and as such they are not compelled to take advise from human resources. A few days later, he fired all workshop workers verbally. Workers immediately left and approached the union and lawyers who did not waste time to litigate. The following day, the factory was paralysed as there were no workers.

The General Manager called me panicking as he did not know what happened and the Human Resources Manager was also in the dark. He had to quickly call workers back and apologise. It came with a cost as the lawyers of the workers had to be paid for the costs related to the Urgent Chamber Application they lodged with the Labour Court to have the workers reinstated. The Head of Department lost his job over the incident and he had to provide training on Labour Relations Management and roles of each actor focusing on the expert role of the human resources practitioner.

In conclusion, General Managers and Line Managers are responsible for their people but they are not experts in Labour Relations and Labour Law thus there is need to always be guided by the human resources expert.

Davies Ndumiso Sibanda can be contacted on: email: [email protected].