Harmony in the workplace, not as easy as it sounds!  

Article by Tiekie Mocke (Manager: Legal Department)

Have you ever found yourself in a position where you are so unhappy with your colleague; supervisor; line manager or even the owner of the company, not knowing which way to turn? Your unhappiness might flow from feelings of discontent or a perceptions of bias or unfairness within the workplace. Most of us attempt to resolve the issues, perceptions or feelings in an amicable way through discussions, or by simply voicing our unhappiness to the perpetrator. Unfortunately, this does not always resolve an issue and in most instances the only way, and rightly so, is to address this unhappiness through a formal process, a grievance process.

The Grievance Process

Depending on the size of the workplace, a stand-alone business or a branch of a bigger corporate business, your employer might have a Grievance Policy in place. This policy will guide you in terms of the correct procedure; to whom the grievance should be addressed; the required format and applicable timelines.

In the absence of such a formal Grievance Policy, the process is fairly simple and consists of three basic elements, namely the reason you feel aggrieved; the outcome you seek after addressing your grievance and the time by which the grievance should have been addressed.

This grievance should always be addressed to your direct line manager, unless your direct line manager is the reason for your unhappiness, then his/her direct line manager. The conundrum is when the employer is the owner as well as your direct line manager and the reason for your unhappiness. This is where things get tricky.

The Test

The mere fact that being unhappy is a feeling, an emotion, shows that part of the test is subjective in nature and once tabled, it should be evaluated objectively taking all relevant facts in consideration. A feeling of discontent or unhappiness on its own does not justify lodging a grievance, BUT when these feelings are as a result of specific conduct perceived as i.e. unfair treatment; double standards; verbal abuse or bullying, you have a right to raise a grievance against the perpetrator. The grievance process is specifically for tabling these perceptions and to separate the wheat from the chaff.

Outcome of a Grievance

Once your grievance has been tabled, there should be a specific outcome. Firstly, an assessment whether the grievance was bona fide and once this is established, there should be clear direction on how your employer intends to deal with the concerns raised and how to prevent further conduct that might lead back to another grievance process. A bona fide grievance is one that does not consist of emotions only but factual evidence of behaviour that lead you to feel aggrieved, there must be substance.

The outcome does not always have to lead to dismissal, but might lead to a process of correcting behaviour or even rehabilitation of the perpetrator and sometimes the counselling of the complainant.

Protection

Should your employer refuse to address, or half-heartedly address a bona fide grievance, this might add fuel to the flames. In the words of Ivan Israelstam (Chief Executive of Labour Law Management Consulting), with reference to Kannemeyer vs Workforce Group (2005, 8 BALR 824), ‘some employers not only ignore all employee grievances but also victimise certain employees for raising those grievances. Such employees are arbitrarily labelled as “trouble-makers” and are told to “like it or take a hike”.

Kannenmeyer lodged a grievance with her employer after her commission rate had been reduced without her agreement. After the grievance was lodged, her employer victimised her to the point where she resigned and claimed constructive dismissal. At arbitration the commissioner awarded her 8 months’ compensation. The arbitrator found that the employer did not lead evidence to dispute the claim of victimization and found in her favour awarding her eight months’ remuneration in compensation.

The Labour Court in Mackay v Absa Group and Another (2000) 21 ILJ 2054 (LC) held that section 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA) dealing with automatically unfair dismissals, allowed an employee to claim an automatically unfair dismissal when they are dismissed as a retaliation after lodging a grievance against their supervisor. [The only reason this judgement was overturned by the Labour Appeal Court was because Mackay could not factually proof that the principal reason for her dismissal was as a result of the grievance lodged against her supervisor.]

This principle was reaffirmed in the LC in De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC) and held that ‘It does seem anomalous that an employee in the position of Ms de Klerk or Mr Mackay should not enjoy special protection. Why would a whistle-blower enjoy special protection in terms of s 187(1)(h), but not an employee who lodges a grievance in terms of her own employer’s procedures?’

Conclusion

A word of caution, not all feelings of unhappiness or discontent can be substantiated by fact. You must ensure that you can factually show that the crux of your unhappiness or discontent is as a result of unfair or bias treatment and conduct. Follow the process, lodge a grievance in terms of your employer’s internal policy or phone MISA for assistance. We will assist in separating the wheat from the chaff!

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