What should employers and employees know about misconduct in the workplace?
1. When Can An Employee Be Dismissed?
A dismissal occurs when an employer terminates an employees contract of employment. The Labour Relations Act 66 of 1995 (“LRA”) permits an employee to be dismissed on three grounds: misconduct, incapacity, and operational requirements of the employer (i.e. retrenchments).
2. When is the Dismissal Unfair?
The employer must prove that the reason for dismissal is a reason related to the employee’s conduct. Should the employer fail to do so, or fail to prove that the dismissal was based on a fair procedure, the dismissal will be considered unfair.
Misconduct is the improper or unacceptable conduct of the employee. Usually, an employer may not dismiss an employee for a first offence; the exception is where the offence is serious and of such gravity that the employment relationship becomes intolerable. Serious misconduct may constitute gross dishonesty or wilful damage to the property of the employer, wilful endangerment of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination.
3. What factors should the employer consider when contemplating dismissal?
The gravity of the misconduct
Length of service
Previous disciplinary record
Nature of the job
Circumstances of the offence
Lastly, the employer should apply the dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently with other employees who have participated in the offence.
Usually, the employer should conduct an investigation, which does not need to be formal in nature, to determine whether there are grounds for dismissal.
The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
The employee should be allowed the opportunity to state a case in response to the allegations.
The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.
After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures
Approach to Dismissing an Employee
Employers should adopt disciplinary rules which establish the standard of proof required from their employees. These rules will create certainty and consistency in applying discipline in the workplace. However, certain rules will already be established or so well-known that it will not be necessary to communicate these specific rules to them.
The LRA takes the approach of corrective or progressive discipline, which considers the purpose of discipline as a means for employees to know and understand what standards are required of them. Therefore, the employer should attempt to correct employees’ behaviour through a system of progressive disciplinary measures such as counselling and warnings.
The employer need not invoke formal procedures each time a rule is broken or a standard is not met. The most effective manner in which an employer can address minor offences is through informal advice and correction. For example, repeated incidents of misconduct will require warnings, which may be graded according to degrees of severity whereas more serious infringements or repeated misconduct may call for a final warning, or other action short of
Dismissal should be reserved for cases of serious misconduct or repeated offences.
Remedy for Unfair Dismissal
If an employee takes the view that his or her dismissal is unfair, the dispute may be referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or relevant Bargaining Council within 30 days from the date of the dismissal. If the matter is not referred timeously, the employee may apply for condonation.
An employee may claim:
Reinstatement on the same terms and conditions of employment before his/her dismissal
Re-employment which may be on new terms and conditions of employment.
Compensation, depending on the circumstances, of 12 months or less.
Appointment of an External Chairperson
Employers should consider hiring an external chairperson to chair employees disciplinary hearings as it carries the following benefits:
External chairpersons who are experts in law will be able to run the process in line with the rules of evidence;
External chairpersons are independent and less susceptible to influences from the parties; and
External chairpersons are well versed in running such processes will be able to reach a fair decision.
Reduces the risk of the CCMA overturning the employer’s decision on the ground that the chairperson is unskilled to run disciplinary hearings.
How Can Mediate Works Assist?
Mediate Works has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counsellors and lawyers to assist. Ebrahim has sat as an adjudicator for CSOS for some time and has co-trained a number of the CSOS mediators through Conflict Dynamics.
Mediate Works can assist employers in providing external chairpersons for disciplinary hearings. We have adapted our processes to comply with the law, your disciplinary framework and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver. Call us now for a chat on 0871505283.