Six Effective Steps of a Legally Compliant Disciplinary Hearing at Work
Do you want to dismiss an employee without worrying about the CCMA, but not sure how? Whether you have caught an employee stealing, or whether the employee has not been meeting their contractual duties, in South Africa you cannot simply dismiss an employee without a disciplinary hearing. In fact, unlike America, it is not easy to dismiss an employee in South Africa.
Locally, the law favours employees, and as unfair as this may sound, it is this way for several reasons. Ever since industrialisation became a force to be reckoned with, workplaces were regulated only by the ethics of the ownership and the bargaining power of the employee. As you can imagine, workers were often exploited, discriminated against, and forced to work long hours under inhumane conditions. Owing to the creation of BCEA and the LRA, those days are over and employees are well protected.
Every Employee is Entitled to Fair Labour Practices
Today, businesses need to be very careful about the way they treat their employees. In South Africa, employees have rights and South Africa’s constitution goes guarantees that every employee is entitled to fair labour practices. The truth is that an organisation can hire an employee, catch them stealing, bullying, discriminating, lying, or even using drugs work, then dismiss them, and still find themselves having to pay them out, or even worse, rehire them. The CCMA does not care why you have dismissed your employee; it only cares about whether you have dismissed your employee fairly.
Be Prepared and 100% Compliant or Get Taken to the Cleaners
According to the Labour Relations Act, Section 188 stipulates that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or based on the employer’s operational requirements, and that the dismissal was effected in accordance with fair procedure. As an employer, it is up to you to ensure that all your disciplinary procedures and dismissals are legally compliant. One mistake could see you downtown in front of the CCMA, coughing up huge amounts of compensation, or even reinstating the employee. If you have never held a disciplinary hearing at work before, here are six easy steps to ensure that it is 100% watertight, so you do not fall foul of the CCMA:
- Investigate and prepare your case thoroughly before the disciplinary hearing – Is your case watertight? Are the allegations strong enough for dismissal? Gather evidence, statements, and witness reports.
- Have your paper trail in order – Depending on the allegations against the employee, they must have received up to four written warnings, and in some cases, counselling is even required. If this has not been adhered to, it will be considered procedurally unfair.
- Choose an unbiased and skilled chairperson – This is very important, as having a biased individual will be to your detriment, should your employee take you to the CCMA.
- The employees’ right to prepare for a disciplinary hearing is sacrosanct – The accused must have enough time to prepare for their case. Should you fail to give your employee adequate time to prepare, this will be considered procedurally unfair.
- Both sides must be given a chance to state their case – It is important to note that the accused must also be allowed to cross-examine the complainant, as well as any witnesses that have given evidence against them.
- The chairperson must decide on the appropriate penalty – Taking into consideration the nature of the offense, extenuating circumstances, previous warnings, and procedural fairness, the chairperson will decide the outcome.
Don’t Sink Your Business Over Technicalities
Dealing with disciplinary hearings at work and a whole host of other labour-related disputes can result in costly legal consequences. To avoid a trip to the CCMA headquarters, it is always best to obtain advice from a labour law expert. For information on the rules for dismissals, the LRA, the BCEA or how to conduct a legally compliant disciplinary hearing at work, contact us at email@example.com or on 011 234 2125 today.
NB: this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.