“It’s not what you say, but how you say it.” – Anonymous
Humans, as insightful, emotive beings are most often able to read deeper into spoken language. Being quite intrigued by this concept, Professor Robert Mehrabian established the rule of the “effectiveness of spoken communication;” which describes tools to help one understand how and why we tend to trust or distrust the people speaking to us – which in turn, paves the speaker’s ablity to be able to influence us.
Interestingly enough, according to the Professor, only 7% of meaning is attributed to the actual words spoken, whereas 38% of meaning is paralinguistic (the manner in which the words are said), and 55% of meaning attributed to the speaker’s facial expressions and body language!
In the workplace, dissatisfactions and complaints often arise; given the nature of the environment – despite aiming to maintain professional conduct in the workplace – high stress, emotional triggers, and the diversity of characters, interacting with one another on a daily basis, may cause friction.
In an idealic society, respect would be at the cornerstone of every interaction; however, unfortunately this is not always the case. When frustrations occur, it is crucial that all parties concerned are aware of the proper grievance procedure steps, in order to resolve issues from the offset, so as to not escalate the situation.
A swift and amicable resolution is the key to a win-win working environment.
What is a Grievance
The Oxford dictionary describes a grievance as “something that you think is unfair and that you complain or protest about; a feeling that you have been treated badly.” Legally speaking, in a Labour context, it is an official statement of a complaint over something you believe to be wrong or unfair.
Dependent on company policy, it is always advisable for employers and employees to try to resolve the problem internally, in the least legalistic manner.
The aim of the grievance procedure is to provide employees with a swift and reliable manner of raising workplace concerns. The company’s internal grievance policy should be relied upon for the formal processes to have employee’s grievances heard and resolved.
Substantiating your Grievance
There, however, rests an onus on the employee who raises the grievance, to ensure that they have sufficient evidence to corroborate the allegations raised in the grievance. It is of great importance that you have all of the facts or proof to substantiate your grievance, before you approach Human Resources or Management.
In the matter of DBT Technologies (Pty) Ltd v Garnevska (JA61/2018)  ZALAC 26,  9 BLLR 881 (LAC), (2020) 41 ILJ 2078 (LAC) (18 May 2020), the Labour Appeal Court (LAC) was required to consider the following set of facts:
During a meeting held on 2 February 2015, an alleged incident occurred between DBT and one of its subcontractors. The company, represented by Mr. Gregory Mailen, a Project Director employed by DBT, and Ms. Garnevska openly disagreed about a particular contractual dispute at the meeting. Mr. Mailen left the meeting before it concluded; and Ms. Garnevska alleged that on his way out of the meeting, Mr. Mailen hit her over the head with a file. Ms. Garnevska reported the incident to her supervisor, went to visit a doctor and thereafter, filed a grievance against Mr. Mailen. The essence of her grievance was that Mr. Mailen had assaulted her. A grievance inquiry followed, whereby it was found that the assault was not proven and dismissed the grievance.
DBT then subjected Ms. Garnevska to a disciplinary enquiry. In the disciplinary enquiry, Ms. Garnevska was found to have committed gross misconduct for falsely accusing Mr. Mailen of assault and for preventing other employees from performing their duties. The chairperson of the enquiry recommended that Ms. Garnevska be dismissed. This finding was upheld on appeal and Ms. Garnevska was dismissed for dishonesty.
Ms. Garnavska lodged an unfair dismissal dispute to the CCMA for resolution and, thereafter, filed a report to the Labour Court (LC) under section 191(5)(b)(i) of the Labour Relations Act 66 of 1995 (LRA), citing that her dismissal was automatically unfair for reasons that the dismissal related to “exercising any right conferred by this act” (under section 187(1)(d)(i) of the LRA).
The LC determined that her dismissal was directly related to her grievance and not to dishonesty, in accordance with section 187(1)(d)(i) of the LRA; and awarded compensation, in her favour.
On appeal to the LAC, the court established that the lodging of a grievance is not the same as “exercising a right conferred by law,” because a grievance is a contractual dispute between parties, and therefore, does not fall under the scope of an automatically unfair dismissal. Moreover, according to the court, there was no indication that Ms. Garnevska attempted to pursue a grievance against the company at the time of dismissal; and as such her dismissal was fair.
This case demonstrates that employers may discipline employees for dishonesty: relating to fraudulent statements, misleading the employer or misrepresenting the true state of affairs following an unsubstantiated grievance.
An employer may dismiss an employee if he or she has lodged a grievance against another employee with false information, thereby making themselves guilty of misrepresentation.
However, do not let this deter you – if you find yourself in a situation whereby you are feeling aggrieved by the conduct of a fellow co-employee or your manager, contact our Legal Department for assistance.
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