Today 's workspace

JOSEPH MASANGO | Thursday February 23, 2012 00:00

In the first part of this article I briefly discussed the background and some of the check-points with respect to a constructive dismissal.  In the second I sought to show how a case of constructive dismissal can present itself in a typical work space.  I conclude the article by suggesting some practical lessons to consider for the future. Firstly, taking into account the first two parts of the article, it is useful to have a robust in-house system of allowing employees to raise issues, and have them resolved.  I do remind myself of one organisation's grievance management system which had 12 pages - an aggrieved employee was required to complete it before management could commence resolving the grievance.

The process ought to be fast, simple and effective, as the saying goes.  It must also be reasonably understood and capable of use by the general body of employees.  A system which is for example complicated judging by the skills-mix of the organisation’s workforce, or requires a lot of form-filling or a lot of signatories, or requires too many stations and levels of managerial hands to have a go at resolving an issue, will not likely meaningfully assist the organisation.The A-Z of the system must therefore be capable of dealing with grievances such that the matter is concluded within a reasonable time.  This must take into account aspects such as the nature including the complexity of the grievance, the resources and other inputs required to resolve it, and the need to balance this with other equally important business imperatives on the table. 

Generally, the sooner the employee knows whether in management’s considered view s/he has or has no case, the better.  There should also be an over-arching robust organisational communication and employee engagement structure.  Research suggests that this approach tends to yield more sustainable business results going into the future.  

Therefore relooking at the current grievance management system and the said communication and employee engagement structure, for added value, holds no harm.  All things said and done, a key goal should be continuous improvement of the business. Secondly, as I have said previously, several organisations have good systems, but get let down when it comes to systems utilisation.   The skills-set necessary for grievance management as well as communication and employee engagement are ordinarily different from what some managers know best or are schooled or trained to do.  Therefore a robust grievance management system and a robust communication and employee engagement structure are, of and in themselves, not adequate. 

Organisational officials whose role it is to resolve grievances and those whose role it is to communicate and engage staff must be developed so that they have the capacity to perform this role.  Some monitoring system should then be put to use, to assist the organisation periodically satisfy itself that the relevant managers are in fact utilising the said system and the said structure as intended. 

Thirdly, some employees, whether managerial or otherwise, often make the mistake of not mitigating their loss in situations where they have been unlawfully and/or unfairly dismissed.  By this is meant that they basically sit back, do not look for another job, and await the normal dispute resolution processes to make a pronouncement over the matter, hopefully in their favour.The proper course of action for the employee to follow under such circumstances is to take reasonable steps to mitigate his/her loss.

This is done by means of the employee immediately seeking other employment elsewhere, and accepting any reasonable offer that comes, while the matter under contest is progressing along the dispute resolution process. Fourthly, to preempt triggering claims of a constructive dismissal arising due to management allegedly not giving work to the employee, best one refers to my previous article on management of poor work performance. 

This should assist in avoiding a situation where a supervisor refuses to give work to an allegedly incompetent employee. The common law and the Employment Act are also clear on the issue of giving or not giving work to an employee.  Same should be unpacked for the organisation’s managerial employees, in case they are not sure. Lastly, a claim for a constructive dismissal requires the employee to really establish a compelling case. Failure to do so can at times attract costs, as stated in the first part of the article.  Among others, labour law is best viewed not as protecting or advancing the interests of only one party, but considering the interests of both parties in the given circumstances, in pursuit of a fair and equitable result. 

*Masango is a Doctor of Laws (LLD) -Mercantile Law degree candidate.  He writes fully and completely in his personal capacity.  As such, his views do not represent, in any way whatsoever, those of any institution or organisation/s he may be associated with however and whenever.  Contact him on Email: trendsglobal@yahoo.com or on cell: (267) 71313730 or land: (267) 2971547, after hours.