Disciplining employees and effecting a fair dismissal
Danny Hodgson
Consultant at Klopper Attorneys Inc.
danny@klopper.co.za
The majority of the disputes referred to the CCMA and bargaining councils relate either to unfair dismissals or unfair labour practices and it is therefore important for all employers to understand how to correctly discipline and dismiss an employee in accordance with the Labour Relations Act to avoid receiving compensation awards against them or having to reinstate a dismissed employee. Below we set out some important points in order to assist employers to comply.
Disciplining employees
- Employers should adopt disciplinary rules in the workplace to create certainty for employees, provide consistency in respect of discipline and to set out a procedure to be followed in effecting disciplinary sanctions. These rules can be provided for in a disciplinary policy.
- Employers should utilise corrective or progressive discipline. This entails correcting an employee’s behaviour through a system of graduated disciplinary measures such as issuing verbal warnings, written warnings and eventually final written warnings when an employee commits the same misconduct. This gives the employee the chance to bring their behaviour in line with the standard required by the employer before being dismissed. Employers should therefore only dismiss employees as a last resort.
- Employers should keep disciplinary records for each employee recording the nature of the misconduct and the action that was taken.
- Employers should ensure that employees who commit the same or similar misconduct are treated consistently. If an employee can show that they have been treated differently from how another employee was treated in the past, they may have a basis to establish that an unfair labour practice has been committed.
- Employers should follow a fair procedure in disciplining employees. This does not necessarily mean that a formal procedure needs to be followed in each case however at the very least the employee should be informed of the charge against them and given an opportunity to respond. See further the section below dealing with procedural fairness.
Dismissing employees for misconduct
A dismissal in terms of the Labour Relations Act is required to be both substantively fair, meaning that it is for a fair reason, as well as procedurally fair, meaning that a fair procedure was followed.
- Substantive fairness
- In line with what is set out above, employers should avoid dismissing employees for a first offence unless the misconduct is serious and is of such a nature that the employment relationship cannot continue. Examples of serious misconduct include gross dishonesty, gross insubordination, damaging an employer’s property or endangering the safety of others.
- When determining whether or not to dismiss an employee an employer should always have regard to the nature of the misconduct committed, the nature of the work performed, the employee’s length of service and disciplinary record, and the employee’s personal circumstances.
- Procedural fairness
- An employer must notify the employee of the charge(s) against them and ensure that they understand the nature of the charge(s).
- The employee should be given the opportunity to consider the charge and make representations in response to the allegation. They should be entitled to be assisted by a fellow employee or trade union representative at a disciplinary hearing.
- An employer must consider the employee’s representations and make a finding on whether the employee is guilty of the misconduct with which they have been charged and the sanction to be imposed.
- This finding should be communicated to the employee and if the employee is dismissed, the employee should be reminded of their right to refer the matter to the CCMA or bargaining council.
