Employers must follow correct procedures when taking action against an employee for alleged misconduct. Karen Ainslie, director at Deneys Reitz’s labour division, offers some practical advice on the best way to manage staff dismissals.
Why do I need a disciplinary policy?
A disciplinary policy makes the disciplinary process that much simpler and gives you a set of standards to adhere to.
It need not be a complicated affair. The policy may list some of the most serious or common offences and state the recommended sanction. It’s not advisable to include an exhaustive list of all offences: not only is it impossible to do so, but the policy will not be flexible enough to provide for unforeseen circumstances.
The code of good practice, which employers are advised to consult when drafting their policy, endorses progressive discipline. Workers should generally not be dismissed for a first offence unless the misconduct is very serious, if the risk of keeping the worker in the company’s employ is too high or if the misconduct makes a continued employment relationship intolerable.
Examples are physical assault at the workplace, gross dishonesty or misappropriation of company property. Make it clear that the policy is a guideline only and that each case will be judged on its own merits to avoid a situation where you are unable to dismiss an employee for serious misconduct as a first offence. Note that poor performance is not bad behaviour and must be remedied through training, counselling and skills development – it should not be included as an offence for which employees can be disciplined.
What is the correct procedure for dismissing an employee?
A dismissal must be conducted in a substantively and procedurally fair manner. To be substantively fair, you must ensure you have sufficient evidence to charge the employee and prove their guilt.
Procedurally, you are entitled to suspend employees if it is difficult to conduct a proper investigation with them onsite, or if their presence poses any risk. They must be suspended with full pay and no loss of benefits.
You must formally charge employees in writing and give them notice to attend a disciplinary hearing. Apply the same terminology used in your disciplinary policy as far as possible and steer clear of criminal terms such as “theft” and “fraud” which are difficult to prove – rather just describe what the employee did.
Give the employee a reasonable amount of time to prepare for the hearing. Generally, three days is sufficient.
Be sure to notify the employee of their rights: they are entitled to an interpreter, to bring witnesses to the hearing, to cross-examine the employer’s witnesses, and to be represented by a colleague or union official. Employees are also entitled to receive reasons for the chairperson’s finding to dismiss.
Who attends the hearing?
- An independent chairperson who has no prior knowledge of the incident/investigation. In a small company it is sufficient to have a chairperson who has not been involved in the inquiry. If that is not possible, it is best to bring in an outsider to avoid accusations of bias later on
- The initiator or the complainant who will state the company’s case. Unless the disciplinary policy states otherwise, the complainant is usually an HR officer or the direct supervisor who has in-depth knowledge of the incident
- The employee
- The employee’s representative
How is the hearing structured?
- There are no hard and fast rules unless the process is set out in the disciplinary policy, but the more structured the hearing is, the easier it will be to defend the outcome.
- Here is a typical structure:
- The company begins by presenting evidence, handing over documents and leading witnesses. Witnesses should be sworn in
- After every witness has testified, the employee is given the opportunity
to cross-examine the witness
- The employee leads their own witnesses and the company is given the opportunity to cross-examine each of them
- The chairperson must then decide whether the employee is guilty or not. It is advised that the chairperson take at least 48 hour to consider the case before delivering a recommendation
- If the employee is not guilty, the inquiry is closed
- If the employee is guilty, the chairperson must decide on an appropriate sanction, taking into consideration mitigating and aggravating evidence from the employee and the complainant. The chairperson must take into account the employee’s position, circumstances, length of service, previous disciplinary record, and the circumstances of the misconduct
- Minutes from the hearing must be distributed to and signed by the complainant, respondent and the chairman
Can an employee appeal?
The law does not require companies to offer employees an appeal hearing subsequent to the disciplinary enquiry. After an employee has been dismissed, they may refer an unfair dismissal dispute to the CCMA or a bargaining council. A mediator will try to conciliate, failing which the CCMA commissioner will issue a certificate of non-resolution and the dispute will be arbitrated.
Arbitration is a new, “full-blown” hearing and all the facts of the matter must be placed before the commissioner. Employers often have their decisions overturned because they fail to lead all the evidence. It is extremely important to include all evidence regarding why the sanction of dismissal was imposed. All the circumstances that were considered in deciding to dismiss an employee must be presented to the commissioner.
Employers must justify the sanction imposed and the commissioner will determine whether it was fair. Dismissal is often overturned because of inconsistencies, so be sure to avoid them.
For more information, contact Karen Ainslie, +27 11 685 8906, firstname.lastname@example.org, www.deneysreitz.co.za