In FAWU & Others versus Premier Foods Ltd (Industrial Law Journal, 2013, page 1171) the Labour Court ordered the reinstatement of workers who had been retrenched following a violent strike. The employer decided to retrench them because it did not have enough evidence to pursue a disciplinary case against them. The disciplinary case was dropped.
The court found the retrenchment unfair and ordered the reinstatement of the workers. After reinstatement the employer tried again to get rid of the workers by re-instituting disciplinary proceedings.
The court interdicted the disciplinary proceedings because it said there were no new facts for the employer to rely on – only those facts which the employer had already found to be insufficient, so the re-instituting of such proceedings was unfair.
The lesson is that employers and, in particular, those assigned the job of investigating and prosecuting at internal hearings, need to devote enough time and resources to gather evidence for a successful disciplinary prosecution. If not enough evidence has been found, then investigate further. At a point the decision will have to be made: do we proceed or do we drop the case? Trying to be “clever” or imaginative by using other means to get rid of the “bad guys” will often backfire.