Please note that this pertains to South African Labour Law and Best Practice requirements.
The mindset of most individuals is that the conducting of a Disciplinary hearing is a “waste of time”. Whilst that may be the perception – it is really the only way that both parties, the Employer and the Employee, get to do battle in a way that is completely fair and without any emotion.
The Basic Conditions of Employment Act is very clear on the subject.
Staff can no longer just be summarily dismissed – the staff member is thereby protected from an employer hell-bent on dismissal. Staff members, no longer get to do as they please and then get away with it – the employer is thereby protected.
There are now rules and regulations governing how things get done – this is called the Disciplinary Procedure.
Many cases have landed up in the CCMA, and been lost by either of the parties because the correct procedures were not followed and not necessarily because of the alleged transgression.
They are not difficult, they are completely fair and they can ensure a fair outcome. If the employee is dismissed and feels that justice has not been served – they can firstly “appeal” the decision and if they still do not feel that justice has been served they can then take the whole issue to the CCMA.
Let’s step back a moment and see what the procedures are:
• The staff member must be served with a Notice to Attend a Disciplinary Hearing.
• The charges must be clear and concise.
• The staff member must be given a minimum of 48 hours to prepare their case from the time that the Notice is served to the time that the hearing takes place.
• The staff member has the right to have representation (this means someone inside of the company – no lawyers at this point)
• The staff member has the right to have an interpreter if there is a need.
• The staff member has the right to call any witnesses if there is a need.
And guess what – the Employer has the same rights.
The Disciplinary must be chaired by an impartial person, who has not been involved with any of the issues leading up to the hearing being called for. This way, both cases get to be heard without any pre-conceived perceptions.
The Chairperson must hear both sides of the story, before making a ruling. The Chairperson can ask as many questions as they feel the need to, in order to reach a decision.
And finally, the penalty must fit the crime.
Next week we tackle a new issue.