Beware the spiteful dismissal
They are often overturned and invariably result in hefty settlement payouts.
Workplace politics are inevitable but the last thing you want is for them to result in spiteful behaviour that manifests in improper labour practices. Employers and employees should, therefore, do what they can to prevent office politics from festering into feelings of spite, which can arise for a great variety of reasons such as: abuse of power, power struggles between managers, employees competing for advancement, racial and other prejudices, scapegoating, managers feeling threatened by other managers or senior staff, sexual affairs, favouritism and victimisation, nepotism, or as a result of a change in management that leads to the development of factions.
In the case of Joseph vs Standard Bank of SA (2001, 8 BALR 868) a bank agency manager was dismissed after she failed to be present when money was being prepared for collection. The arbitrator found that it was unreasonable to have expected Joseph to be present for the preparation of the cash because she was required to carry out a number of other duties at the time of the cash preparation. The CCMA also found that the dismissal had been implemented out of spite due to a personal clash between Joseph and her superior. The employer was ordered to pay the employee 12 months’ remuneration in compensation.
Feelings of spite tend to permeate throughout an organisation with people taking sides and forming factions. The fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation. It is therefore crucial that the employer:
- Identifies personal hostilities early;
- Accepts that they need to be dealt with urgently; and
- Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in a fair, pragmatic and legal way.
The higher up the organisational ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal.
However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.
Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached the law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration.
This is becoming an increasingly common occurrence. On the other hand, we have also been able to help employers to avoid having to pay crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.