Employers who do not keep detailed records of disciplinary action taken against employees for misconduct, including the action taken and sanctions imposed, take a huge risk. Time and time again, it has been shown just how vital proper record keeping is in regard to coming out on top at the CCMA.

In Gcwensha v CCMA & others, the employee had been dismissed for gross negligence, and the employers excellent record-keeping showed that the employee had a number of previous warnings for incompetence, negligence and inefficiency.

At the time of his dismissal, the employee was on a current warning, which had the effect of placing him on terms. The court found that the employee had a ” deplorable record” which the employer was entitled to consider when deciding on a suitable sanction for the current transgression. The employers excellent record-keeping saved the day.

In NUMSA v John Thompson Africa (Pty) Ltd [1997] 7 BLLR 932 (CCMA), it was the lack of proper record-keeping that landed the employer in trouble, and ended up with a reinstated employee. The employee was dismissed for wilful damage to and deliberate misuse of company property, using abusive language, and being under the influence of an intoxicating substance.

The employee followed his employer’s appeal procedure, but no record of the proceedings at the disciplinary hearing was available for the appeal chairperson. Since there was no record of the evidence led at the disciplinary hearing, there was no evidence to indicate that the employment relationship had been irretrievably harmed by the employee’s behaviour. The employee was reinstated.

Schedule 8 – the Code of Good Practice – Dismissal requires that the employers must keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action. The chairperson of a disciplinary hearing cannot apply his mind properly to the problem if there is no record of alleged previous disciplinary actions against the employee. Obviously, the employee with a clean disciplinary record is the exception – there is no record to consider.

However, the chairperson is placed in a very difficult position when the employer submits as an aggravating circumstance, or perhaps in closing arguments, that ” this employee is always misconducting himself and has had previous disciplinary hearings”, but when the chairperson calls for the previous disciplinary record it is found that there is no record to produce.

Such an employer goes to the CCMA with very little ammunition – and his case turns out to be rather something of a damp squib. There can be no doubt that meticulous record-keeping and proper preparation is 90% of the battle in CCMA matters.

Poor record-keeping can result in only one thing – sloppy preparation. And in such circumstances, you have lost before you even start.

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