Myths and Mysteries

This seems to be a large amount of fairytales and missbeliefs still circulating amongst employers. I daily receive e-mails on all sorts of weird and wonderful questions.

For example - how many written warnings must I give an employee before I am allowed to hold a disciplinary hearing ? A warning is something that follows a disciplinary hearing – the hearing does not follow the warning.

A warning is a sanction applied, by decision of the chairperson of the hearing, after he has heard all the evidence, arrived at a verdict of guilty, and then after considering all the circumstances, he arrives at a suitable sanction - which could be a written warning, or even a verbal warning, or a final written warning etc.

There are many misconceptions circulating among employees - not the least of which is the misguided notion that an employer must give the employee 3 written warnings before a disciplinary hearing and be convened.

I am often asked about the validity period of a verbal or written warning. Labour legislation does not specify the validity period of a warning. That is for the employer to decide, but generally a verbal warning is valid for 3 months, a written warning for 6 months, and a final written warning for 9-12 months. An indefinite period warning is not permitted. Another question – does an act of misconduct qualify for "immediate dismissal?"

When I inquire - what do you mean by "immediate dismissal", the reply is "can I simply dismiss him immediately without a hearing, because it is a serious offense?" Obviously, the answer is NO!  Strictly speaking, in terms of labour legislation, there no such thing as " immediate dismissal." It does not exist.

No employee may be dismissed unless the employer first follows a fair procedure, and the dismissal is for a fair reason. The fair procedure includes affording the employee the opportunity to state his case, and to state why he should not be dismissed. Therefore, "instant dismissal" does not exist.

Another question –

"my employee has walked out on me with 24 hours notice. I held back his salary and leave pay because he never gave me notice. He reported me to the Department of Labour, now they say I must pay up. Do I have to pay?"

Answer - yes you do have to pay. There is nothing in labour legislation that entitles you to withold any payment due to the employee. The only way to overcome the problem is to insert a suitable clause in the contract of employment, whereby the employer reserves the right to make such deductions upon an unlawful resignation.

"The employee refuses to sign the employment contract – what must I do?"

Generally, if the employee refuses to sign the employment contract, then he is refusing to be bound by your terms and conditions of employment. If there is no agreement regarding terms and conditions of employment, then generally, no employee/employer relationship exists. (Mackay & Another v Comtec Holdings (Pty) Ltd [1996] 7 BLLR 863 (IC)). Obviously, the circumstances differ from case to case.

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