So there’s that one guy who continually rocks up late for work and he doesn’t think you notice but it is becoming a trend. On the fourth day of him arriving late, you’re starting to get fed up. What should you do?
Option 1: You blow your lid and call him a buffoon, tell him to pack his things and hit the road
Option 2: You calmly pick up his belongings, put them into a tote bag and toss it out of the window. After which, you politely request he never sets foot within 50 metres of the office.
Option 3: As he comes through the doors, a flash mob jumps out from every crevice of the office and starts dancing to “It’s too Late to Apologise” by OneRepublic including an intricate finale involving 10 mobbers lifting the, now chair-bound, latecomer above their heads like a king and escorting him out of the building
Tempting, I know, but unfortunately none of these options are permissible by law! Contrary to this, WeWork notoriously hired Run-DMC to perform “It’s Tricky” at their offices after laying off hundreds of staff members in 2015. They also dished out tequila shots at the leaving party. Not my ideal severance package, but each to their own.
Step 1: To give “several written warnings” according to the labour relations act
Step 2: To give a “final warning”
Step 3: Dismiss the employee if the same indiscretion happens again
Some Real Life Examples
The Locomotive Late-comer
However, the waters are certainly murky! In the case of NCP vs SACWU (1998, 6 BALR 769), the employee who was a locomotive driver continually pitched up late for work. He duly received several warnings and, eventually, a final warning. This was all done ‘by the done’ so to speak. The issue arose when he arrived late for work again. And again…and again! His employer did not dismiss him, in fact on occasion he was not disciplined at all. Finally, his boss had enough and sent him packing.
Verdict: unfair dismissal!
The court ruled that the dismissal was unfair due to the fact the employee began to believe the final warning had no effect because on many occasions after that he was not even reprimanded, let alone dismissed. By acting in this inconsistent manner, the employer displayed that repeated lateness was not a serious offence and therefore waived his right to dismiss the locomotive driver.
The Transwerk Trial
To cut a long story short, an employee was given his final warning for late-coming – which was done by the book. Now, one would think if the employee came late again he would be dismissed and that would be that, everyone would carry on with the daily lives – albeit one without a job. Well, quite the contrary… He was dismissed but the employee felt hard done by and went to the CCMA. The court ruled it was unfair dismissal as it was too drastic and harsh on the employee and ordered that he be reinstated.
These two contradicting cases cast a long shadow of doubt among employers in South Africa as to how dismissing an employee for late-coming should be done. It is perfectly legal to dismiss a staff member for late-coming provided you follow the procedures as set out in the Labour Relations Act and it is ‘fair’. ClockWork, a blue collar recruitment platform, states in an article that dismissal is ‘fair’ if it is either substantive or procedural. Substantive means it was fair based on the circumstances and procedural is that the employer followed the necessary steps.
You should never use a rule of thumb when it comes to law, but in this case, I make an exception as there is an unmistakeable grey area. That is, if you were in the shoes of the employee would you deem the dismissal to be fair and reasonable? If so, he or she can go to the CCMA but at least you have a strong case. However, my advice is to contact a labour lawyer regularly to discuss the entire process from the first warning to the last warning and dismissal.
This article was produced courtesy of the ClockInstant team,
ClockInstant is a startup that focusses on productivity growth solutions for SMME’s in emerging markets. Our simple, single feature, one-click time tracking solution allows employers to track staff anywhere ensuring they are on time, in the right place, at the right time.