Dismissal - A sensible risk management tool

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise.’ Conradie, JA at par 22 in De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000)(Own emphasis)

Identifying operational risks

Each business has a set of inherent risk factors, which have to be identified, analysed and through various interventions negated or at least reduced in order to ensure the viability of the enterprise to the stakeholders, including owners (shareholders) and employees.

Identifying risk in the workplace

The employer is always best placed to determine areas of risk in the workplace and also the risk profile of each employee.

In most instances there is a notion relating to the level of trust, which you place in any employee. Although this is based on a ‘gut-feeling’, your intuitive notions are usually right, unless you are blinded by emotional factors.

Rating risk areas in the workplace may prove to be less onerous and it is suggested that the appropriate way to do this is to consider various areas of risk in the enterprise and to give some form of weight to these risks, being high, medium, or low.

For instance in retail the areas of higher risk may be cash handling and also managing trading stock. In the manufacturing environment delivery and cash collecting can be at risk.

In all operations abuse of equipment can be identified as areas of risk, where employees could damage equipment wilfully.

Risk mapping

Through a process of ‘risk mapping’, certain categories (classes) of employees can be specifically linked to certain risk factors.

The examples could be given of stock shrinkage, damage to equipment, gross negligence, conduct impacting negatively on customer relations, assault and intoxication. These are examples where the conduct of employees would increase risk and impact adversely on the viability of the enterprise.

Approaching workplace rules and procedures as ‘risk management’ tools

When drafting workplace rules and procedures, risk factors should always be considered.

Drafting workplace rules and procedures within the risk-management framework

Rating areas of risk and risk profile of employees

Employing people in any enterprise involves elements of risk. The risk profile of the employee only becomes apparent after the appointment and over time. The interaction of the employee in the enterprise and specifically ‘high risk’ areas can increase or decrease the risk profile in that specific area of activity. However, there have to be ‘risk-stops’ in place to ensure that effective action can be taken to reduce the risk.


Planning and drafting of workplace rules

The workplace rules and procedures are usually decided before they are used in disciplinary action against the employee. The Code of Good Practice: Dismissal in item 3(1) encourages employers to have rules, which will give an indication of the standard of conduct required of employees.

Steps for drafting or review of workplace rules and procedures within the risk-management framework

1. Identify the risk areas in the enterprise and link them to inappropriate conduct by employees, which will increase the risk.
2. Identify which groups or categories of employees are likely to impact on the identified risk, either to increase or decrease the risk factor.
3. Analyse what type of conduct should be discouraged and which methods can be used such as counselling, training, warnings and dismissal.


Implementing the rule during disciplinary action

When giving consideration to the rule, which, has been breached, and dismissal is contemplated, the importance of the rule will need to be established. Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22 (5 October 2007) at par 78


When considering or drafting a rule it is important to bear in mind that someone outside the organisation may need to evaluate the specific rule with regard to the following:

1. The importance of the rule.
2. The purpose of the rule.
3. The sanction associated with the rule.
4. The consistence whereby the rule has been applied in the past.
5. Fairness of the rule.


Conclusion

Risk analysis (formal or informal) is an important business management tool, which can be effectively used in the arena of workplace discipline. In this context, it is used to identify risk and the risk associated with negative conduct by employees and it can provide guidance when determining the importance of a workplace rule and the associated sanction, when dismissing employees.

The process need not be formal, especially where small and medium enterprises are involved. It should be seen as an exercise in applying your mind to discipline in the workplace, which will ensure that the entrepreneur does not overreact in a high-tension and emotionally charged environment of disciplinary action.

The process can help to give a balanced perspective on misconduct by employees and highlight important rules for which dismissal would be procedurally and substantively fair.

Additional reference
Risk Management - Wikipedia