Labour Lawyer Team near Pretoria – On the Issue of Misconduct
As an employer in Pretoria, you may at one or other time have to deal with misconduct from an employee. Although the law makes provision for the termination of an employment contract because of the misconduct of an employee, certain requirements must be met for such a dismissal. We highly recommend speaking to our labour lawyers before you dismiss an employee for misconduct.
For the dismissal of an employee for misconduct, the dismissal must be substantively and procedurally fair. Our labour lawyers work with many clients in Pretoria and can help you to determine whether a dismissal is appropriate for the particular misconduct and can assist to ensure the procedural correctness of the dismissal.
What Is Substantively Fair?
As our team of labour lawyers near Pretoria can explain, the reason for dismissal must be fair. This means that you must consider the facts and circumstances of the particular misconduct and determine whether dismissal is the correct course of action for the misconduct.
What Is Procedurally Fair?
This means that the procedure followed to dismiss the employee must be correct and fair.
What You Cannot Do
You can, therefore, not just give the employee notice of the termination of the employment contract. Even if you have sufficient evidence that the employee has been guilty of gross misconduct and thus breach of the employment contract, you must follow the correct procedure in determining guilt and appropriate sanctions. In addition, you must follow the correct procedure in dismissing the employee. Even though this may feel unfair to you as an employer, you must remember that the employee has the right to fair treatment and not to be unfairly dismissed. Our labour lawyer team situated close to Pretoria can thus help you to ensure fairness in the treatment of the situation.
When it comes to the correct procedure, you must follow an approach of corrective action rather than punishing the employee for the misconduct. You must thus try to correct the behaviour through relevant verbal warnings for minor misconduct, followed by written warnings if the employee persists in the misconduct, and a final warning if the misconduct is repeated.
Dismissal is thus the final step and should never be the immediate first step for misconduct. Before the employer gives a final written warning, the employer must have a meeting with the employee, giving the employee a chance to explain and defend their actions.
Why It Is Important to Have a Disciplinary Policy in Place
Where the employer does not have a disciplinary policy and procedures in place, the employer must follow the Codes of Good Practice in order to ensure fairness in the procedure.
How Warnings Must Be Served
The employer must provide the employee with the written final warning and the employee must sign for the acceptance of such. The employer must note the date, time, and place of the serving of the final warning if the employee does not want to sign as acceptance.
Although the Codes of Good Practice are only a framework, it is important to adhere to the guidelines to minimise the risk of a dismissal for misconduct being deemed unfair as the result of incorrect procedure. A verbal warning should be in effect for three months, a written one for six months, and the final warning for a year. Keep in mind that the above should only serve as guidelines.
It is imperative to keep record of each misconduct and what the employer has done about it. Our labour lawyers, with offices not far from Pretoria, can assist in drafting a warning policy to ensure compliance with the procedural requirement.
The employer must investigate the misconduct properly and a disciplinary hearing must be scheduled. The employee must be made aware of the allegations, the date and place of the disciplinary hearing, and the details of the allegations. The employee has the right to representation by a union representative or fellow colleague.
Make sure you understand what constitutes misconduct and the procedure to follow before ending the employee’s contract as the result of their misconduct. Get in touch for legal guidance from our labour lawyers in Midrand (not far from Pretoria). Call us on 011 234 2125 for labour law guidance and assistance.
Disclaimer: 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.