Employers, especially those in the service industry, are understandably sensitive about customers' perceptions and employees' conduct towards customers. While customer complaints should be taken seriously the old adage 'the customer is always right' must, in the context of labour law, be tempered with the realisation that the allegedly offending employee has a right to state his or her case. This includes the right to face his / her accusers.
However, many employers at disciplinary hearings merely present the employee with a written statement from the customer without calling the customer to confirm the complaints in person. This will however be unnecessary if the employee agrees with the material aspects of the statement. It is perhaps human nature to prefer the customer's written word to the verbal denial of the employee, on the mistaken assumption that paper (and perhaps customers, too) don't lie.
The danger of merely presenting a written statement from a customer regarding an employee who denies the allegations without calling the customer to testify, was again illustrated in the as yet unreported decision of Murphy AJ in the review involving The Magic Company and CCMA & others (C682/03 dd 19 Jan 2005). One of the issues that was addressed on review was the employer's decision to dismiss the employee based purely on written complaints from a customer, which the employee had denied at the hearing. She insisted that the customer should be called, but to no avail. She was eventually dismissed, but reinstated at arbitration.
This decision was upheld by the court on review. The judge noted that while employers are allowed some leeway with regard to the rules of evidence and procedural compliance, employees have the right to challenge their accusers directly. If the accuser is not available, the employer should at the very least have other corroborating and testable evidence available to substantiate the contents of the customer's written complaint.
Therefore, if a customer lodges a complaint, come to an agreement with the customer immediately that he / she will be available to testify at any future enquiry into the matter. If the customer refuses, he / she should be informed that while the complaint will be attended to, it may not stand in a hearing if the employee challenges its content. In the event of a refusal the employer should ask the customer to make a sworn statement and in addition to that try to find evidence that corroborates the customer's version that can be presented and tested at a hearing.
An attempt should also be made prior to, or at the hearing, to establish whether the employee disagrees with the statement and, if so, about which aspects. If the employee accepts the material aspects of the statement, calling the customer may be unnecessary.
Written by Barney Jordaan of Jordaan • Stander for Labourwisewww.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or firstname.lastname@example.org