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How to stop grievances escalating to constructive dismissal claims

by , 25 June 2014
Contents of the 5-part Special Course
Part 1: Avoid the Pitfalls of Fixed-Term Contracts
Part 2: What Counts as a Dependant's Emergency?
Part 3: How to Stop Grievances Escalating to Constructive Dismissal Claims
Part 4: Induction: Inspire Employees from Day 1
Part 5: Can We Dismiss an Employee Covered by a Sick Note?


Trouble with problem employees you need to warn or dismiss? Find out the quickest and most effective ways of getting the job done
Dealing with problem employees is one of the hardest jobs that any company or employer has to face. Taking a single step wrong can lead to lengthy, expensive and stressful unfair dismissal cases. And there are so many pitfalls in your way. Every single step of the procedure these days must be accompanied by a formal letter. Plus there is a whole list of requirements you must consider and meet before any disciplinary meeting can take place.

With You're fired!' Your guide to substantively and procedurally fair dismissals you'll know how you can dismiss your employees 100% legally. What's more, your case will be watertight and will hold up at the CCMA. And since we all know the law's on the employee's side, you need to know all the tricks in the book so you can have a solid defence for saying good-bye to that slacker! Find out more now or email this to a colleague.


Don't let grievances escalate to constructive dismissal claims

A case has highlighted the need to deal promptly and effectively with grievances.
In Kuipers and Durattract Plastics (Pty) Ltd (2004) 25 ILJ 758 (BCA), the employee was being counselled for poor performance and was told to improve within a certain period. She immediately lodged a grievance claiming that she was being victimised. A grievance hearing was held and she subsequently resigned. 

She claimed that the outcome of the grievance hearing was pre-determined and she was being victimised. The grievance procedure hadn't been exhausted and a further counselling session was still to take place.
It was held that the employee had cut short the process by resigning and had been too impatient. She didn't wait for the employer to find a solution. Her failure to wait for the outcome of the processes prevented her from succeeding with a constructive dismissal claim.

This case shows us the importance of dealing promptly with grievances when they occur. So, what should you do when a grievance is raised? 

Grievance Procedures
The first point to note is that all formal grievances should be managed by following formal Grievance Procedures. You must follow these three steps in your procedure:
  • The employee must write to the employer setting out the details of the grievance.
  • The employer should then arrange for a formal meeting to be held to discuss the grievance.
  • This should be done as soon as possible after receiving the grievance letter.
The employee has a statutory right to be accompanied at this formal meeting by a trade union representative or a colleague. The employer must then write to the employee after the meeting setting out what action, if any, will be taken in response to the grievance. If it is decided not to take any action, then the reasons must be given. 

If the employee is not satisfied with the outcome of the meeting, s/he should be allowed to appeal. Wherever possible, this appeal should be held by a manager who has not previously been involved in the situation, and who is more senior than the manager who held the initial grievance meeting. Use the following general guidance about managing grievance situations:
  • The issues should be dealt with promptly. This is good practice, because grievances that are left to fester often become much bigger issues to address.
  • Issues should be dealt with consistently. It is important to consider whether similar issues have been raised in the past and, if so, how they have been resolved.
  • Issues should be investigated. This might be required to ensure that you have a full understanding of the issues. It will be essential if you were not aware that there was any problem.
  • There must be an opportunity for both the employer and the employee to put forward their explanation of what has happened.
Although this guidance sets out the procedure to be followed when dealing formally with a grievance, there will be times when a formal procedure is not the most appropriate. Sometimes a problem is more of a 'grumble' than a 'grievance' and addressing it through a formal procedure makes it into something bigger than it really is. Hence, when an employee initially raises a problem, consider whether it can be resolved quickly and easily without resorting to the use of a formal procedure.


You might learn some very surprising things about employment from this kit! 
For example, that it may sometimes be legal to dismiss a pregnant employee. And that it's no longer enough just to verbally warn somebody that you're not happy with their work or behaviour.

I would thoroughly recommend you do your business a favour today and claim this You're fired!' Your guide to substantively and procedurally fair dismissalsIt may just save somebody from making a mistake they'll come to seriously regret one day! 

It'll only take 30 minutes of your time to go through the You're fired!' Your guide to substantively and procedurally fair dismissals report and gain all the knowledge and power to dismiss an employee legally. You'll receive all the necessary forms and templates and be able to re-use in every dismissal scenario you're ever faced with. Get your copy now or forward this email to a colleague.

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