Posts in category: Dismissal

Last week we discussed the basics of dismissal and the importance of fair reasons, a fair process and the onus of proof. We also said that a disciplinary hearing is very important as it is part of a fair process that will assist the employer to decide whether or not an employee is guilty of misconduct.

This week we will be looking at a new trend that employers are using in the place of disciplinary hearings to dismiss an employee. Please note that this process is extremely technical in nature and employers are not advised to embark on unless the employer does so with the assistance of a qualified Labour Lawyer or Consultant.

Investigation

When employers do an investigation into an alleged misconduct they would have to come to a stage where they decide, in the face of the evidence, whether or not to go ahead with a disciplinary hearing. In most cases a hearing could be very costly due to an outside person being contracted to act as the chairperson of the hearing or due to time constraints. On top of that the employee admits guilt at the outset of the investigation and this obviously puts the employer in a very strong position to argue for dismissal at the disciplinary hearing.

Dismissal

In such cases the employer may opt to sign an agreement with the employee so that the employee waives his right to a disciplinary hearing and instead resigns with immediate effect. As part of such an agreement the employer might agree to give the dismissed employee a favourable reference for new employment once the employee has exited service at the employer.

If the employer has embarked on such a process CCMA Commissioners will closely scrutinise the process to ensure that the employee has not been bullied into the agreement and if so there will be more than adequate evidence available to the disposal of the employee to file for a case of constructive dismissal.

So, if you want to be on the safe side always conduct a disciplinary hearing to ensure that you follow the correct procedure to get the right result.

Every employee has the right NOT to be unfairly dismissed. This is the way in which the Labour Relations Act states that employees are to be treated. However the Act does not confer on employees a right not to be dismissed, but only not to be unfairly dismissed.

There are three important factors in the process of dismissal:

1) A fair reason(s) for an employee to be dismissed. An employee must have transgressed a rule before he can be deemed guilty of anything. Generally employers have rules in the form of written policies and procedures to clarify up front what the employer deems to be right and wrong. In the absence of the afore-mentioned employers generally struggle to prove their point when being engaged in a disciplinary action or when they have to prove their case at the CCMA.

And

2) A fair process to be followed by the employer. The employee must be given a chance to explain what and why he did or did not reacted in a certain way. As part of a fair process the employer is to investigate the matter to try and establish exactly what went wrong and if a rule, policy or procedure has indeed been transgressed by the employee. In the absence of the afore-mentioned employers run the risk of getting an unaccepted surprise when the accused employee gives a quit reasonable explanation for his action at the disciplinary hearing. The same principles will apply at the disciplinary hearing were the employee is given a chance to state his case and to call witnesses.

And

3) The onus of proof. At company level the onus is on the employer to prove that the employee transgressed a rule. When such a case is referred to the CCMA the employer will have to provide proof that the employee’s dismissal was fair. In order to be dismissed the employee must prove that he indeed was an employee and not a casual worker or independent contractor etc. There are other cases in which the onus will rest on the employee to first prove his case such as in cases of constructive dismissal or sexual harassment after which the employee have succeeded the onus will be given to the employer to prove otherwise.

Dismissal

It is important to note that employees, even if they are guilty of misconduct, is still liable to be paid there leave accumulation, pension or provident fund or any other monies that are due to them.