It is an unfortunate fact of the South African labour environment that the employer-employee relationship is not always a bed of roses. Occasionally you have to deal with thorny issues that inevitably arise from time to time. Such as an employee that drinks on duty, persists in arriving late or leaving early, stubbornly refuses to follow instructions, disregards company policies, commits theft………. fill in the blank! How do you dismiss an employee? Can you dismiss an employee? Difficult though it may be, you are cautioned against acting on your knee-jerk, and instantly showing your employee the door. Unless the thought of dealing with a CCMA action is an appealing one to you, here are a few guidelines that should help you in disciplining a wayward employee.
Before you start a disciplinary process against an employee for misconduct, you need to ask:
- Was there a company standard, rule, instruction, code or policy?
- Was it communicated to the employee?
- Did the employee breach the standard, rule, instruction, code or policy?
- Did the employee know / should the employee have known that his/her conduct was wrong or unacceptable?
It is imperative to ensure all employees know about and have access to any Company Policies and Procedures.
So, the answer is apparent: the employee did wrong, and knew he or she was doing wrong. What then? Remember that there are two considerations when disciplining an employee: Substantive fairness and Procedural fairness.
Was the employee’s action sufficient to warrant disciplinary action? Any action that the employer wishes to take must be appropriate in relation to the seriousness of the misconduct. For example, an employer cannot summarily dismiss an employee for a trivial misdemeanour where a mere verbal warning would have sufficed.
Even if the employee’s actions were so grievous as to warrant dismissal, the correct procedure still needs to be followed. A disciplinary hearing must be held to determine whether dismissal is, indeed, the appropriate recourse. An employee accused of misconduct must be afforded certain rights, including:
- Being informed in writing of the reason for the hearing. The allegation must set out the nature of the offence and the specific incident.
- The employee must be afforded reasonable time to prepare for the hearing.
- The employee is entitled to: state his/her side of the case; be represented by a fellow employee of his/her own choice; cross-examine witnesses giving evidence against him/her; and introduce witnesses to support his/her case.
- Being informed of the outcome of the hearing in writing.
Remember to keep a written record of the key facts and issues dealt with in the disciplinary hearing, together with the decision taken.
Employees can be alerted to your organisation’s disciplinary procedures through the implementation of a Disciplinary Policy. So ensure your Employment Policies and Procedures are in place and communicated to your staff. And when starting disciplinary procedures, make sure that the decisions made are substantively and procedurally sound.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.