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This one mistake cost Edgars at the CCMA! Don't let it happen to you too!

by , 19 May 2014
Patrick's a hard worker and he always hands his work in on time. Unfortunately, Craig is the opposite and isn't so great at meeting his deadlines with his reports.

At the end of September, neither Craig nor Patrick meet their sales targets. You decide to give Patrick a verbal warning, but give Craig a final written warning. You justify your reasons on the fact that Patrick's generally better at following through on projects than Craig.

But stop! You can't do this!

You can't discipline employees differently if they've committed the same offence. If you do, the CCMA will find in the employee's favour and you could end up paying thousands in compensation. Just like Edgars did. Keep reading to find out what happened...

Let's look at: Edgars Consolidated Ltd [Edcon] vs CCMA and others [2009] 1 BLLR 56 LC
An Edgars' employee received a racist and offensive email from a colleague. She then sent it on to her friend in another company – let's call it company X.
A manager from company X saw the email his employee received and complained to Edgars.
Edgars had a disciplinary hearing and charged the employee with using the resources to send an offensive mail. This damaged their reputation.
The employee pleaded guilty to the charge and Edgars dismissed her. But she took her case to the CCMA and claimed dismissal was too harsh.
She also claimed Edgars had been inconsistent since it hadn't disciplined her colleague who originally sent the email. Edgars said it didn't have proof the employee sent the mail, even though the dismissed employee gave them a hard copy showing he'd sent it.

Don't lose at the CCMA because of a technicality!

Did you know: There are only three grounds for dismissal that's fair! But even if you dismiss someone for a fair reason, but don't follow the correct procedure, it'll be unfair!

Click here now and I'll show you how you can dismiss 100% legally. 


The judgement: Edgars was inconsistent
The CCMA said the dismissal was unfair for a number of reasons.
-          Firstly, it was inconsistent because it hadn't disciplined or dismissed the other employee.
-          The Arbitrator said the employee was with Edgars for 11 years and she hadn't intentionally broken the rule.
-          Edgars had to reinstate her with full benefits. The compensation, including back-pay was R75 600.
Edgars appealed the CCMA at the Labour Court
The Court upheld the Arbitrator's decision. It said his finding of inconsistency and his award was reasonable.

So what can you learn?

Will your company's HR Policies and Procedures hold up in court?

Don't wait for a CCMA dispute to discover your company doesn't have a leg to stand on!
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The lessons: Make sure you have fair reason if you're not consistent
Make sure the offences your employees' commit are the same. If they're not, you don't have to discipline or penalise them the same way.
But if the offences and the circumstances are the same, you must enforce the same penalty.
But, the principle of consistency doesn't mean every time one of your employees breaks a specific rule the outcome must always be the same. You need to look at all circumstances of the case. As an example, two employees both miss a serious deadline. Your disciplinary policy says a final written warning is warranted. One employee was in hospital for two weeks, while the other just didn't meet the deadline. It wouldn't be fair to apply the sample sanction in this case.
The Court will have no sympathy if you're not consistent. 

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