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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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Importance of having disciplinary warnings on file

Employment Law , , , ,

It is an unfortunate reality that even the most diligent and fair employer or business-owner will at some point be required to apply disciplinary action or issue warnings in situations in the best interest of the company and the employee.

Disciplinary procedures and warnings, when appropriately used and managed, is not intended to punish a wrong but to correct wrong actions.

Warnings can range from a verbal warning to a final written warning depending on the circumstances under which it occurred or the severity of the misconduct or offence in need of correction. The severity of a warning can progressively be increased if the employee keeps repeating the offences or continues to commit offences against the established disciplinary code despite previous attempts to rectify the situation. Warnings issued should always follow the company’s established Disciplinary Code and it must be on record that the employee being sanctioned has seen, read and understood the disciplinary code. Employers are encouraged to discuss the company’s Disciplinary Code with Employees on a yearly basis.

Item 7 (b) of Schedule 8 to the Labour Relations Act provides:

If a rule or standard was contravened, whether or not:

(i)           The rule was a valid or reasonable rule or standard

(ii)           The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii)         The rule or standard has been consistently applied by the employer

The drafting and dissemination of the company disciplinary code, as well as record that all employees have been informed of the disciplinary code is the first step in a vital record keeping process to fairly and lawfully apply disciplinary actions which may lead to warnings. The lack of such a paper trial may invalidate any defence against an unfair business practise/dismissal claim at the CCMA from the start.

A written warning must, at minimum, contain the following,

  • the identity of the employer and the employee
  • details of the offence: nature of, date of and time of offence
  • the terms of the warning and the period of validity
  • a clear statement of the corrective actions required by the sanctioned employee
  • a clear statement of the consequences for the sanctioned employee should he/she fail to fulfil the requirements as stated above or repeated offenses within the warning period
  • verifiable proof (in the form of the employee’s signature or witnesses) that the warning was delivered and received by the employee.

A warning should only be issued after a fair disciplinary process, and this process must be started immediately after the employer finds out about the transgression, conducted and completed as soon as possible to enable the employer to issue a warning (if warranted) with the most specific, concise information possible. This will help to avoid any future problems that may lead to a challenge at work or at the CCMA.

It is vital to any business and employer to keep accurate, detailed record of every disciplinary action and warning, including verbal warnings, documenting the charges and actions taken. To not do so imposes a huge risk to the employer should any disciplinary action be challenged at the CCMA, which could lead to monetary awards or reinstatement of a sanctioned employee.

In case law, refer to Gcwensha v CCMA & others, where the employee had been dismissed for gross negligence. Diligent recordkeeping by the employer evidenced that the employee had several previous warnings for incompetence, negligence and inefficiency. Gcwensha was on a current warning when he was dismissed. The court found that the employee had a ” deplorable record” of transgressions and misconduct, which the employer was entitled to take into consideration when deciding on the appropriate sanction to be taken for the current transgression. The employer was able to defend this action and avoid reinstatement of the employee because of the verifiable history of warnings he had on file.

The opposite was true in NUMSA v John Thompson Africa (Pty) Ltd [1997] 7 BLLR 932 (CCMA). It was the lack of proper record keeping that lead to the employer being ordered to reinstate the employee who was dismissed on charges of ‘wilful damage to and deliberate misuse of company property, using abusive language, and being under the influence of an intoxicating substance.’ The employee appealed the dismissal according to the employer’s established procedures, but at the appeal hearing there were no records of the proceedings or evidence tabled at the disciplinary hearings to make available to the chairperson to consider. It could not be proven that the employment relationship had irretrievably broken down due to the employee’s behaviour and it was ordered that the employee be reinstated.

Schedule 8 (Code of Good Practice – Dismissal) requires that employers must keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action. An employer that does not do this, goes to the CCMA with little ammunition – and his case becomes quite indefensible.

 

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Unauthorized absence from work

Uncategorised , , , , ,

The classic “AWOL” employee, or in labour parlance, an employee that is absent without authorisations, is quite possibly the most regular headache for any employer and HR department to deal with. In the current atmosphere of fear and uncertainty related to the COVID-19 pandemic in South Africa, employees as more likely to not report to work, and employers will be challenged to make sure they handle such absences correctly and fairly.

Before any action on unauthorised absence is taken in the months ahead, all employers are urged to take disciplinary action with compassion, to understand that there is a real and visceral threat affecting the judgement of employees on whether or not to report to work – as this will be taken into account at future CCMA challenges should an employee feel unfairly treated. However, employers must also act in the best interest of their business and the future health and well-being of the company and the other employees. This is a tough task.

In terms of the law with regards to unauthorised absences, it is best to start at the first principle, that is, due to the nature of the employment contract between the employee and the employer, an employee has a duty to enter into and remain in service when required to do so except in times that authorisation for absence has been granted.

In circumstances where an employee is unable to return to work after leave or sick leave, the employee can reasonably be required to inform the employer of this continued absence and the reason he/she will not be returning to work as agreed. It is important to note that should an employee be absent without authorisation and this requirement to inform were not met, it does not necessarily warrant a dismissal. The reason for the employee’s absence must first be established and based on that the employer can determine the appropriate disciplinary action to take.

There is a difference between absenteeism, abscondment and desertion in South African law:

  • Absenteeism is a short period of unauthorised absence from work.
  • Abscondment is an unauthorised absence from work for an unreasonably long period.
  • Desertion is when an employee either leaves the employer’s employment or fails to return to work with a clear intention to not return to work at all. If there is an intention to return to work at some point, it is not a case of desertion but of absenteeism or abscondment depending on the length of the absence.

In cases of absenteeism and abscondment, the employer must schedule a disciplinary hearing prior to dismissing an employee by following the normal and fair disciplinary procedures.

In cases where it becomes clear through investigation of the facts that the employee has deserted employment, evidence such as if the employee relocated to a different town or province during the absence or the employee had taken up employment with another employer, it is advisable for the investigating employer to address a letter to the last known address of the employee. This letter should inform the employee that it is believed that the employee has deserted his/her employment and that his/her employment will be terminated on a certain date, should  the employee not return to work or contact the employer by a given deadline. If this deadline is not met, employment will be terminated.

Contact JOBLAW for expert guidance on these and any other labour related issues.

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