Please note that this pertains to South African Labour and Best Practice requirements.
Following on from last time. So what exactly would be considered as “fair practice”?
Let’s examine this a bit more.
Firstly the employer must ensure that a proper investigation takes place in order to ensure that there are grounds for dismissal. Whether or not this is a formal inquiry at this point does not make any kind of difference as this is just the preliminary investigation.
Once it is ascertained that there are sufficient grounds, the employee must be notified in writing, that there are allegations and what these allegations are. Remember to use language that the employee will understand – so in essence – keep it as simple as possible.
The employee should then be allowed to respond and state their case or give circumstances etc. around why they did whatever it is that they have been accused of doing. They have to be given the opportunity to answer to the charges or allegations made and give their own explanation. This is usually when the disciplinary hearing would take place.
The employee also needs to be given a reasonable amount of time in which to formulate a response to the allegation(s) or charges that have been levied against them.
The employee is also entitled to request and receive any assistance that they may require from a trade union representative or fellow employee and may even ask for assistance from the HR department if they are not sure of the process or how to proceed.
After the inquiry has been held, the employer must advise the employee of whatever the decision is that has been made. This advice or notification must be made in writing and a copy retained in the employee’s records.
Any disciplinary that is taken against trade union representatives or any employee that holds any kind of office bearing position or any official of a trade union, should not be taken without first notifying the trade union. The trade union should then be consulted before any action is taken against that particular staff member.
If the decision is taken to dismiss an employee, the employee has to be notified in writing that they are being dismissed and of course the reason for the dismissal. At this point, the employee has to be reminded of their rights in terms of the appeal hearings and their right to refer the matter to a council with jurisdiction or even to the CCMA for mediation or to any other dispute resolution, in terms of the employers laid down, or previously negotiated and accepted policies and procedures, or any other policies and procedures that have been established and agreed to by means of a collective agreement.
There are obviously exceptional circumstances where the employer cannot reasonably be expected to follow these guidelines and in these instances, the employer would then document the reason why these guidelines could not be followed and copies of this documentation must then be retained and filed in the employee’s personnel file for future reference.
It is a legal requirement for employers to keep and maintain records for each employee. All transgressions, whether they resulted in a disciplinary hearing or not, should be recorded in the file together with any hearings that may have taken place. Actions taken against the employee by the employer must also be recorded and maintained as well as the reason that these actions were taken.
Next week we will look at Dismissals and Industrial Action.