Any business that has had to dismiss an employee for cause in recent times knows what a trial that can be.The expectation these days, based on decisions coming out of the Industrial Disputes Tribunal (IDT), is that employers will convert their boardrooms to courtrooms; that there will be an independent judge, prosecutor, witnesses, even a stenographer for every disciplinary infraction, regardless of how minor or how obvious it may be. This over-emphasis on criminal law processes and procedures is eroding the mutual trust and confidence relationship that should exist between employers and employees.
There is no good reason that an internal disciplinary hearing should look like an episode of How to Get Away With Murder. In the criminal justice system, it’s not about what you know – it’s what you can prove.So, for example, when a policeman is caught on camera shooting a citizen in Buckfield, St. Ann, in front of dozens of witnesses in broad daylight, he may walk free because of the rules of evidence that apply in Court.Just because a man is not guilty in the eyes of the criminal law shouldn’t mean that he is innocent under employment law. The same rules ought not to apply.
The Labour Relations Code requires an employer to implement a disciplinary policy that affords the worker an opportunity to state his case and to be accompanied by a representative.This is what we have known to be “natural justice” for the purposes of a disciplinary hearing. It’s not a very high standard to meet.The new argument, however, that natural justice means that the employer has a burden of presenting evidence before an impartial judge, is new and disturbing.
Whilst procedural safeguards are necessary, the blind adoption of criminal practice and procedure is inappropriate and threatens industrial harmony more than it benefits it. Under the criminal law, an accused person has the right to remain silent, whereas is it an accepted principle of industrial relations that a worker has a duty to cooperate in an internal investigation.The disciplinary process ought to be expeditious and, if possible, completed within a matter of weeks. In contrast, trials typically take months, if not years to conclude. A disciplinary hearing should not be as rigid and antagonistic as a trial where parties are seeking to triumph over their opponent. The overriding objective at every internal disciplinary hearing should be a focus on whether the relationship can be preserved and improved, or if it has irretrievably broken down. Worst of all, more trials mean more lawyers, and who needs more lawyers?
The IDT was born out of a realization that the rigours of the law were ill-suited to the nuances of industrial relations.The Tribunal represents a form of alternative dispute resolution. Encouraging employers to utilise common law rules of evidence is antithetical to the very purpose for which the IDT was established. Even the Supreme Court is softening towards reconciliation in litigation by mandating mediation for all civil suits.
The employers that stand to suffer the most are small and medium-sized businesses.Consider, for example, a businessman who has one employee and witnesses him stealing from the business. If he fires the employee on the spot, he is sure to pay the price at the IDT. Instead, he schedules a disciplinary hearing which can neither be too soon or too far away.He sends the employee home pending the hearing on full pay, so as to avoid the argument that he has prejudged the outcome of the case. He must then hire, train and pay another employee to do the work of the employee he’s sent home. If we go by the law, that businessman is now the accuser and the sole witness.If he fires the employee, the IDT may find that the dismissal is unjustifiable because he acted as judge in his own cause. If he must seek professional assistance, he will need to pay that person as well. Keep in mind that all this happens while the owner still has a business to operate. The cost, in time and money, will often be too high for the business to bear.What a way to punish entrepreneurs.
There is an urgent need for reform in this area of law. We need procedural safeguards tailored to the industrial relations environment and its peculiar needs. We need to engage the business community, especially small businesses, in making these rules.As it now stands, companies are faced with having more trials and inevitably, more errors.
Jahmar Clarke is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Jahmar may be contacted via firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.