Questions to ask before you discipline an employee

An unfortunate fact of the South African labour environment is that the employer-employee relationship is not always a bed of roses. Occasionally you need to deal with thorny issues that inevitably arise from time to time. Like the employee that sleeps on duty, swears at customers, persists in arriving late and leaving early, obstinately refuses to follow instructions, blatantly disregards company policies, commits theft, __________ fill in the blank! Difficult though it may be, employers are cautioned against acting on a knee-jerk. Admittedly it is tempting to yell “You’re Fired!” and instruct security to boot your employee out the door. But unless the thought of dealing with a CCMA action appeals to you, a more tempered approach is advised. Here are a few guidelines for when you find yourself having to discipline a wayward employee.

First, ask these Questions

Before you start a disciplinary process against an employee for misconduct, you need to ask:

• Was there any company standard, rule, instruction, code or policy?
• Was this communicated to the employee?
• Did the employee breach the company’s standard, rule, instruction, code or policy?
• Did the employee know, or should the employee have known that their conduct was wrong or unacceptable?

It is imperative to make sure that all employees know about and have access to your Company’s Policies and Procedures.

So, the answer is apparent: the employee did wrong and knew that what they were doing was wrong. What then? Now can you scream “You’re Fired!” and instruct security to boot them out the door? Sorry, but no. There are two further considerations when disciplining an employee.

Substantive fairness

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

So, the actions were indeed serious enough to warrant summary dismissal. Now can you….? Er, no.

Procedural fairness

Even if the employee’s actions were so serious 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. The employee is entitled to certain rights, including:

• being informed in writing of the reason/s for the hearing.
• being given reasonable time to prepare for the hearing.
• being entitled to: state his/her case; be represented by a fellow employee; cross-examine witnesses.
• being informed of the outcome of the hearing in writing.

It’s only once the disciplinary procedure has been held that the employee be dismissed. All together now. “You’re Fired! Security!”

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.