When considering disciplinary steps against an employee, the employer should apply the principle of progressive discipline. In other words: a verbal, written or final written warning or a disciplinary hearing, if warranted. The employer could thereafter consult Section 188 of the Labour Relations Act 66 of 1995 (the LRA), as amended as well as Schedule 8 of the Code of Good Practice should the employer seek a dismissal of the employee.
Section 188 of the LRA states the following:
“(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove – (a) that the reason for dismissal is a fair reason – (i) related to the employee’s conduct or capacity; or (ii) based on the employer’s operational requirements; and (b) that the dismissal was effected in accordance with a fair procedure.”
Should the employer have its own Disciplinary Code it must be used when considering disciplinary action. Should there not be a Disciplinary Code, then the employer should be guided by the Act and the Code of Good Practice.
Prior to the Disciplinary Hearing:
Before an employer can request that an employee attend a disciplinary hearing an investigation should be held to determine whether there are sufficient grounds for a dismissal, alternatively whether another sanction would be more appropriate. This enquiry can be formal or informal, depending on the nature of the alleged misconduct. Should the employer find that there are indeed grounds for a dismissal, the employer must inform the employee of the allegations against him or her in a formal Notice to Attend a Disciplinary Hearing. After being presented with the charge sheet, the employee should be given sufficient time to prepare for the hearing; in practice this is usually a minimum of two clear working days.
Item 2 (1) of Schedule 8 of the Code of Good Practice: Dismissal states the following:
“A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below.”
These guidelines are found in items 7, 9 and 11.
Employers should keep in mind that there are two elements that determine whether a disciplinary hearing was fair. These are: substantive fairness and procedural fairness. Disciplinary charges should be based on a fair reason (substantive fairness) and this includes misconduct of the employee, incapacity of the employee or the operational requirements of the employer. Substantive fairness also includes the reason/s given by the Chairperson to validate the dismissal. Item 2 (4) of the Code of Good Practice: Dismissal goes further explaining that: “The employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.” Fair procedure refers to the manner in which the employee was notified of the hearing as well as the procedure followed by the Chairperson in conducting the hearing.
During the Disciplinary Hearing:
Note that the employee has the following rights during a disciplinary process:
- the right to be informed of the charges;
- the right to a proper opportunity to prepare;
- the right to an interpreter;
- the right to call witnesses;
- the right to cross-examine witnesses;
- the right to be fairly judged and the hearing to not be unreasonably delayed.
These are also factors which will be considered when determining whether a dismissal was procedurally unfair. The employer should appoint an impartial chairperson who will hear both the employee and the employer’s case. The Chairperson should have no prior knowledge of the matter whatsoever.
Procedural fairness also relates to the fact that the employee must be given the opportunity to state his case and to respond to the allegations. As long as these requirements have been complied with, the employer (through the Chairperson) would be deemed to have followed a fair procedure.
According to Item 4 (1) of the Code of Good Practice: Dismissal, the employee is entitled to be represented by a trade union representative or fellow employee. More often than not employers do not allow an automatic right to be legally represented, however there are employers who do allow same, often in terms of a Company Policy.
After the disciplinary hearing:
The employee has to be informed of the finding by the Chairperson. This means whether the employee was found guilty or not guilty on one or more of the charges, in the event there is more than one charge. Thereafter, the employee must be informed of the recommendation/outcome of the Chairperson. It is preferable to supply the employee with a copy of the written outcome. If the employee is dismissed he or she must be given the reasons for the dismissal and should be reminded of his or her right to refer the matter within 30 days to the appropriate forum (CCMA or Bargaining Council, whichever is applicable).
Kindly contact us now to see how we can help you to avoid, perhaps unnecessary, unfair labour practice or unfair dismissal referrals to the CCMA or applicable Bargaining Council.