Dismissing an Employee is no Bed of Roses

‘Tis the month of love, and roses abound. But as the international day of love comes around, you may find that there are certain employees to whom you’d rather give the boot than a bouquet. The employer-employee relationship is not always a bed of roses: occasionally you find yourself dealing with a few thorns. Such as an employee who drinks on duty, persists in arriving late or leaving early, stubbornly refuses to follow instructions, wilfully disregards company policies, siphons off company property ………. fill in the blank! Difficult though it may be, you would be well-cautioned against acting on a knee-jerk, and instantly showing your employee the door. Unless the thought of dealing with the CCMA is an appealing one to you, here are a few guidelines that may help you in disciplining the 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 the Company’s Policies and Procedures of employment.

So, the answer is apparent: the employee did wrong. And knew that s/he was doing wrong. What then? Again, resist the urge to mimic Hollywood blockbusters by shouting out “You’re fired!” This might bring you some short-term gratification, but simply isn’t worth the damage to your stress-levels, not to mention your bank balance, when the employee marches out of your office – and into the CCMA’s office. Bear in mind the following considerations when disciplining an employee.

Substantive Fairness

Was the employee’s action sufficient to warrant disciplinary action? Any action that the employer wants to take must be appropriate in relation to the seriousness of the misconduct. For example, an employer cannot dismiss an employee for a trivial misdemeanour where a mere verbal warning would have sufficed.

Procedural Fairness

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 in fact the appropriate recourse under the circumstances. An employee accused of misconduct is afforded certain rights, including:

• being informed in writing of the reason/s for the hearing.  The allegation must set out both the nature of the offence and the specific incident to which the offence relates;
• being afforded reasonable time to prepare for the hearing;
• being 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.

In Summary: Ensure your Policies & Procedures of employment are in place and communicated to your staff. Including your Disciplinary Policy. And when starting disciplinary procedures, make sure that the decisions made are substantively and procedurally sound, with a written audit trail of all that transpired.

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.