Davies Ndumiso Sibanda
WHEN many disciplinary cases are started, employers will not have applied their minds fully to the implication of what they will be doing only to realise the real implications when the legal costs far outweigh the benefits.

The starting point is for the employer to avoid using discipline as a means of settling scores with employees who do not always agree with the boss, employees who are a threat to the boss’ job, or just employees that the organisation no longer need.

Some organisations are driven by an angry narrow-minded executive team that sees dismissing employees for any transgressions as an effective people management method as they work towards meetings organisational goals.

Generally such an approach to management of people tends to achieve short term benefits, which tend to disappear when litigation costs related to dismissals start to bite.

Dismissal of an employee must be an option of last resort. It must not be driven by anger, search for scapegoats or other nefarious reasons. Before taking the dismissal route, the conduct of the employee must have shown that it goes to the root of the relationship. That is, it must be conduct that collapses any chance of working together into the future. It must be guided by an objective assessment in the eyes of a reasonable person.

Dismissal of an employee must not be driven by a single incident that is blown out of proportion by an angry employer. But all the employee’s previous performances must be taken into consideration including the organisation’s investment in the employee and future plans around the employee.

Admittedly, there are exceptions to this rule such as cases of theft, assault, sexual harassment and insubordination, which go to the root of the relationship and are dismissible in the first instances. Even in some of these cases there is still a need to look at the underlying causes, which could be mitigatory although successful mitigation in such cases is rare. However, for justice to be seen to be done, it is important to look at underlying causes.

Smart chief executives and boards of directors view all employees as important assets and as such any loss of a single employee is seen as asset disposal, which must be done after having applied appropriate human capital disposal principles.

These include business implications, seriousness of misconduct, costs, implications on labour relations, litigation risks, impact on morale for remaining employees, impact of process on those who handle the hearing, effect on employee job security and many others.

I have seen cases of organisations that have a culture of dismissing workers resulting in employees losing faith in the internal justice system, thus, they litigate outside resulting in the organisation having many cases pending before the courts and being handled by lawyers and consultants at a huge cost. Such cases become a huge open-ended liability for the organisation as at conclusion they can go either way.

What employers must also consider is the strong litigation ability of today’s workers as they can either take the employer personally on or can use indirect litigation capacity by encouraging relatives and friends who are lawyers to give the employer a hard time. On many occasions I have attended hearings where the defendant puts brilliant defence leaving the complainant embarrassed.

Where the employer later notes that a case is taking a nasty turn for the business in terms of costs and organisation image, at times its better for the organisation to swallow its pride and settle out of court before much damage is caused especially in cases where during litigation trust collapses to a level that working together into the future is no longer possible.

In conclusion, employee dismissals must be justified and where environment is no longer workable but there is no misconduct employer must not create unfair misconduct but would rather opt for mutual separation or retrenchment.