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Procedurally fair disciplinary hearings

Employment Law , , , ,

One of the most common reasons employers end up at the CCMA, and on the losing side of the table, is the procedural fairness of a disciplinary process that ended in dismissal. Even though there may be ample substantive reason to support dismissal, an employer must follow a correct and fair process prior to dismissing an employee.

Just as a procedurally fair disciplinary process can be regarded as complying with the rights of the employee, employers have rights in the workplace as well, including:

  • The right to establish a fixed standard in terms of quality and quantity
  • The right to implement rules in the workplace
  • The right to apply discipline when these rules are broken

The right to apply these rules must be backed up by a clear disciplinary code to which the employees are held accountable.  If and when the employees do not adhere to the rules as established in the code, the employer should then be able to safely apply progressive disciplinary steps as needed according to the agreed guidelines in the code.

Should progressive disciplinary steps not remedy the transgressions, or if the transgressions are serious enough on first offense, more serious sanctions (in the form of dismissal) may be needed. However, prior to any sanction or dismissal because of disciplinary action, an employer must hold a disciplinary hearing. It is essential that an employer can prove that a hearing was held prior to any dismissal.

A disciplinary hearing is intended to ensure that a fair procedure is followed and that there is a substantive reason with sufficient evidence to warrant a serious disciplinary sanction, up to and including dismissal.  It is important to remember that the Labour Relations Act recognises only three circumstances under which dismissal can be considered a fair sanction:

  • Misconduct
  • Incapacity (including poor work performance)
  • Operational requirements (retrenchments)

However, any dismissal under these circumstances will not be deemed automatically fair by the CCMA. The chairperson of the hearing must follow three distinct processes during the hearing, each process to be finalised before the next process is started:

  1. The chairperson must first establish, by examining the entire process that a fair procedure had been followed and that the accused had not been prejudiced or compromised through unfair actions by the employer.
  2. The chairperson must decide, based on the evidence presented, whether to find the employee guilty or not guilty.
  3. The chairperson must, upon finding an employee to be guilty, consider all relevant factors including:
  • the employee’s length of service
  • previous disciplinary record
  • personal circumstances
  • the circumstances surrounding the transgression
  • whether the sanction is consistent with previous cases of a similar transgression and subsequent disciplinary action
  • seriousness of the offense
  • extenuating circumstances such as self-defence, provocation, coercion, and intent

The Chairperson must allow the employee to present arguments in mitigation of the sanction and he must consider whether a lesser sanction would suffice.

Standard Disciplinary Procedures

  1. The employer must issue a written notice of the disciplinary hearing to the employee in a form and language s/he can reasonably understand with the date of the notice, the date, time and place of the hearing, as well as the charge/s against the employee.
  2. The notice must include a clear and detailed description of the charges against the employee to be considered at the hearing, including the date, time, and the details and description of the transgression/s.
  3. The notice must be issued to the employee in time to allow reasonable time to prepare for the hearing. This time must, at minimum, follow the company disciplinary code. More time should be allowed in the case of more complex charges. Moreover, an employee is entitled to sufficient information and documents as requested to prepare for the hearing.
  4. The employee has a right to present a defence against the charges including presenting evidence and witnesses. The employer has a right to examine and question the evidence presented by the employee and witnesses, and the employee has the right to examine and question the evidence and witnesses presented by the employer.
  5. The employee is entitled to be represented by a fellow employee or a trade union representative. The employee must inform the employer of such representation prior to the hearing. Employers must take note that the LRA definition of a trade union representative is a shop steward and not an external trade union representative. Should the employee request outside representation the employee must submit a formal application detailing the reasons why outside representation is being requested. If required, the employee is also entitled to the use of an interpreter.
  6. The employee has a right to fair judgement. As such a disciplinary hearing should be heard by an objective and impartial chairperson.

After the conclusion of the disciplinary hearing, and upon receiving the decision made by the chairperson, the employer must communicate in writing to the employee the decision and, should the decision be that the employee is found guilty of the charges, the subsequent sanction imposed and the reasons for the sanction. The employee must also be reminded that s/he has a right to refer the matter to the CCMA (or relevant council) within 30 days.

This article is being provided for informational purposes. Contact Joblaw with any disciplinary process enquiries and legal advice.

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Use the lock down to your advantage

Employment Law , , , ,

We find ourselves in unprecedented times, after President Ramaphosa placed South Africa in a 21-day lock down to combat the spread of the COVID-19 virus.

While a pandemic is naturally unpredictable, many labour issues sprout from oversights that are predictable, and thankfully, can be rectified. These pertain to an absence of contracts and policies that set legal boundaries and establishes responsibility in the case of transgression.

According to the Basic Conditions of Employment Act (BCEA) it is required by law that every employer provides a contract of employment to the employee on no later than the first day of work. The contract must stipulate the parties entering into the employment agreement, the terms of service, and the conditions of employment – including remuneration, deductions, hours of work, overtime, leave and termination of employment.

Another pitfall, often overlooked especially by smaller companies, is the need for company policy documents which often lead to successful challenges by disciplined or dismissed employees at the CCMA for unfair labour practice. Unfair labour practice is defined by Section 186(2) of the Labour Relations Act (LRA) as “any unfair act or omission that arises between an employer and an employee…” Without a company policy in place – along with a documented record that the employee had been informed and agreed to the stipulations in a policy – it can be an extremely difficult task to act against employees. The employee can, as a principle of unfair labour practice, claim that he was never informed of the policy s/he transgressed and has the right to conclude that it does not exist.

Drafting company policy documents are not without their own legal difficulties and is best to be done in consultation with an experienced labour law expert. Policies that may be required by any company, irrespective of size, include:

  • Disciplinary & Grievances Policy
  • Company Communications Policy
  • Company Vehicles Policy
  • Computer Usage Policy
  • Corruption, Gifts and Kickbacks Policy
  • Employment Equity Policy
  • Performance Management Policy and Procedure
  • Sexual Harassment Policy
  • Smoking Policy
  • Telephone Policy
  • Travel Policy
  • Health & Safety Policy
  • Emergency and Disaster Management Policy

Incorporating such matters into a contract means that any transgression is then not only a breach of company policy but also a breach of contract – putting the employer on much more solid ground should any dispute arise.

Another minefield in the dispute landscape is the lack of documented training records. Following on the same principle as above, an employee that is disciplined or dismissed for poor work performance, may challenge such a sanction on the basis that they were not properly trained in the task/system which lead to the disciplinary action, thus rendering any sanction of poor performance to be unfair. A detailed training record on file of any training sessions, coaching (informal or formal) offers great insurance from a disgruntled, non-performing employee.

Time spent on closing loopholes to prevent disciplinary or behavioural headaches is always well-spent, and best done sooner rather than later. In the spirit of the lock down, use any available time in the next three weeks to re-examine employee records and close any gaps you may find.

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COVID-19: CCMA closure directive

Employment Law , , ,

As the country continues to institute processes to deal with the spread of the Coronavirus outbreak, the Commission for Conciliation, Mediation and Arbitration (CCMA) has decided to close all offices from Tuesday 18 March until Tuesday 14 April 2020 unless otherwise directed.

This is done in line with the directives received from the President and the Department of Health as well as the guidelines issued by the Department of Public Service and Administration and the protocols of the National Institute for Communicable Diseases.

This effectively means:

  • All contact processes (face-to-face meetings) are postponed – this includes all matters scheduled to take place from 18 March until 14 April, and no persons will be allowed to walk-in for enquiries or to deliver/serve processes or documents.
  • The CCMA will accept non-contact methods of communication such as email and fax.
  • Discretionary functions such as, but not limited to, training and conferences are postponed. (See exception.)
  • Pre-conciliation processes will continue as these are conducted via telephone.
  • Conciliations may continue if all parties agree to proceed via telephone.

To mitigate the pending backlog, Commissioners may attempt to resolve disputes using telephonic or online methods as approved by the CCMA.

It is important for all parties involved to not allow any perceived pressure (stated or otherwise) to influence their resolutions into premature settlements.

The normal processes of the CCMA will resume at the appropriate time, and cases that are unresolved at that time will be resumed and continued as normal.

Exceptions

In terms of discretionary functions of large scale dismissals and Inquiry by Arbitrator processes that are deemed to be in the public interested, the CCMA may approve a venue that is not in the CCMA offices provided such venues meet the required, strict conditions:

  • All Health and Safety directives, guidelines and protocols as listed (See above) are met.
  • All parties agree to this alternate venue in writing.

The CCMA will continue to asses the situation as it unfolds and take any additional steps or precautions as deemed necessary and will communicate any updates as they become available.