Disciplining Employees

We recently assisted one of our Monthly Retainer Plan (MRP) Client’s in disciplining one of their Employees for misconduct.

We were required to draft the necessary employment contracts for the Client. One of the Employees for whom the contract was intended had committed misconduct and had been issued with a Verbal Warning by the Client prior to the Company signing on with our Firm. The misconduct continued and so the Client contacted us for advice. We advised Client that a Disciplinary Hearing would be the best option in the circumstances as the various forms of misconduct warranted going from a Verbal Warning to a Hearing as they seemed to contain the element of dishonesty. Normally our law operates on the basis that an Employer should use progressive discipline, however this is decided on a case by case basis and the severity of the misconduct committed by the Employee.

We first drafted a Notice of Suspension which the Employer served on the Employee on 25 June 2018. It is important to note that not every Hearing for misconduct requires the Employee to be suspended pending the outcome of the subsequent Disciplinary Hearing. It is judged on the seriousness of the misconduct and usually considered in circumstances where it is strongly believed that the Employee may interfere with evidence the Employer intends using at the Hearing as well as interference with other Employees.

The next step was for us to draft the charge sheet which consisted of eleven charges. The Hearing was chaired by an accomplished Advocate on 11 July 2018 and our Director, Maria Du Toit assisted the Client in prosecuting the matter. The Employee chose to be self-represented. The Hearing began with evidence being led through the Employer herself as well as three witnesses. The Employee was given the opportunity to cross-examine all the witnesses including the Employer. The Employee thereafter began his case and after he had completed his evidence in chief but before he was cross-examined by the Director, the parties agreed to settle the matter instead of continue on. The Employee agreed to leave the Employer’s employ on certain terms and conditions which were negotiated and eventually agreed upon and a Mutual Separation Agreement (MSA) signed.

It is a good idea for an Employer to discuss the option of an MSA with an Employee who faces the possibility of being dismissed out of a hearing, as an alternative. It takes a lot of pressure off both parties. The Employee is however never obligated to agree. In our Client’s matter our Firm recommended this to the Employer prior to the hearing, however the Employee was not open to this and elected to attend the hearing wherein the matter became settled anyway.

Employers should always seek legal advice before commencing with any disciplinary action and our MRP option is very handy to have. Contact our bookkeeper, Chaslee Goosen at bookkeeping@dtattorneys.co.za to find out more! Our plans start at only R1 160.00 (VAT incl) per month. It is extremely cost effective and a great way to have professional legal advice at your fingertips!”

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