Is Industrial Court usurping power of employer?

Is the Industrial Court biased in favour of employees? That’s what one local attorney wants to know. Attorney Om Lalla put the court in the spotlight  while addressing a seminar on, “Landmark Court Judg-ments: Misconduct in the Workplace,” organised by the Employers Consultative Association (ECA.) Questioning the impartiality of the Industrial Court, whose judges, Lalla said, were appointed by politicians, he wanted to know whether the judgments were biased in favour of the employees, penalising emp-loyers for exercising their right to discipline their workers for acts of insubordination. The Court, he explained, was established to arbitrate disputes between employers and workers and it was through the Court’s judgments that the law provided guidelines for acceptable conduct by the employee and methods of discipline by the employer. However, he said, “it is a growing concern of the employer that these judgments are increasingly usurping the disciplinary power of the employer.” The message, he said, seems to be  that misconduct in the workplace shall be tolerated and dealt with leniently.

It is also fair and reasonable to question whether all employers comply with the law exactly as they should and whether some dispense with the employees’ right to fairness, he said. In dealing with misconduct in the workplace, Lalla maintained that employers needed to combine their understanding of the practical realities of the workplace with the Industrial Court’s approach towards disciplinary procedures. This would enable them to provide fair treatment to their employees, while complying with the principles of good industrial relations practice as set out by the Court, he said.

“This understanding is vital and of crucial importance to avoid conflict and litigation in order to save time and energy in defending claims by employees in the Industrial Court and avert incurring irrecoverable legal costs,” he maintained. He added that in such cases employers would have fulfilled their duty to act in accordance with good industrial relations practice. How then should an employer deal with misconduct in the workplace? Lalla defined good industrial relations practice as “compliance with the principles of natural justice,” which required that persons charged with a particular offence be informed of the charges and appear before the magistrate or High Court judge to respond to the charge in their defence. The right to be heard and the observance of the rules of natural justice were equally applicable in the workplace, he asserted.

There are three essential elements to natural justice, said Lalla: Informing the employee of any allegation against him; giving the employee an opportunity to defend himself and acting fairly and in good faith when conducting the investigation. “However,” he continued, “it was not unusual in such circumstances for a worker to refuse to attend any meetings with his employer.” In such cases, the Court has mandated that the principle will not be breached if the employer offers the worker an opportunity to be heard and the worker in turn fails or refuses to take advantage of the opportunity. Allegations made against an employee, Lalla said, had to be communicated to him (the worker) in the form of a written accusation, which must be clear and precise, giving specific details such as the date, time and place of the incident. He cited the example of Trade Dispute Number 200 of 2001 of the Communi-cation Workers Union versus Peake Industries Limited, where a Machine Operator was dismissed on the basis of poor punctuality and threatening behaviour to the foreman.

In this case, he recalled, the Court determined that the evidence presented by the company was lacking in credibility, since the letter to the employee lacked not only specifics, but was dated before the alleged incident of misconduct.“The lack of credibility on the part of the employer displayed a failure to act in good faith,” Lalla said. Each company, he continued, should establish certain disciplinary procedures to be followed in the event that incidents of misconduct arose. “The purpose behind the exercise of disciplinary power,” Lalla asserted, “is to correct and improve an employee’s behaviour rather than to give vent to management’s frustration. Accordingly, the use of this power should reflect this purpose.”

Lalla said disciplinary procedures should be drawn up in writing, with which the company, its managers and supervisors would comply when the relevant act of misconduct arose. This step would ensure that there was little room for confusion as to the disciplinary procedure to be followed when employers were faced with any kind of situation of insubordination. However, Lalla stressed that disciplinary action must not be excessive or disproportionate to the conduct in question. “In deciding the appropriate disciplinary action which has been taken for the employee who is guilty of misconduct, it is necessary for employers to be aware that suspension, warning and dismissal ought not to be arbitrarily and capriciously resorted to,” he added. He called for reform of the Industrial Relations Act, saying that proper identification of the rights of both employers and employees may lie in such a reform.