Your guide to labour law in South Africa
|
| Newsletter | |||||
|
|
|
The Investigation of the Complaint. All complaints must be investigated. The investigation is necessary firstly to establish if it is necessary to take disciplinary action in the form of a full Disciplinary Hearing, or if the matter can be solved informally at shop floor level. It is not necessary on every occasion to invoke full and formal disciplinary procedures – but the investigation must in all cases be thoroughly undertaken. In instances of minor infringements, the matter can usually be addressed at shop floor level in the form of an informal discussion between the supervisor, the accused, a shop steward and perhaps a witness. Keep a written record of the proceedings, and the usual written warnings can be issued. The whole purpose of disciplinary action is not to punish, but to rather correct the situation and if this can be done with as little fuss and effort as possible, then so much the better. In serious matters, where formal disciplinary action is inevitable, a full and carefully recorded investigation is a must. Keep an investigation diary. In this will be recorded the date, time and action taken or aspect investigated. Interview the accused, all witnesses, the victim, the complainant and any other person who may have something to contribute – either for or against the employer or accused. Record in every case, the date, time and place of the interview, and keep notes of what was said or discussed. This is in addition to formal statements made by those concerned. The investigation process will include (as early as possible after the incident) obtaining written statements from the accused, any witnesses, the victim or complainant. In obtaining those statements, do not sit with the deponent and tell them what to say. You simply ask them to make a written statement of their version of events and hand it to you. After the complaint has been investigated, you decide whether a formal procedure is necessary or whether it can be disposed of informally. If a formal procedure is required, you would normally hand the matter to the H.R. Dept to make the necessary arrangements. The investigation must cover the following aspects and format;
Rule : All statements must be in writing and must be in the deponent’s own words. Should the statement be written in a language that needs translation, then the translation must be done by an unbiased party. All statements must be signed by the deponent. A Statement need not necessarily be a sworn affidavit, unless you intend to prefer criminal proceedings against the accused. In such cases, a sworn affidavit may be a good idea as this can be used in the criminal proceedings as well.
What is the complaint? (i.e. what happened? Describe in full what occurred.) That Jan Pienaar, a Supervisor in the machine shop, is alleged to have physically assaulted Mr. Godfry Nkosi, a machine operator in the machine shop by striking Mr. Nkosi on the left side of his (Mr. Nkosi’s ) head with his (Mr. Pienaar’s) flat hand. (or fist, or with a piece of wood, or with a metal object etc.) If an object (piece of wood, metal object ) etc was used in the assault then that object must be seized and kept as evidence. Mr. Pienaar must provide a written statement describing in his own words what occurred. Who is the complainant? (The person who lodged the compliant.) Mr. Nkosi must provide a written statement describing in his own words what happened. Should Mr. Nkosi not be able to submit a written statement because he cannot speak English, then he must be permitted to write the statement in his own handwriting in his own language. You then submit that statement to an unbiased party for translation to English (or Afrikaans etc ) When did it occur? Record the date, time and place of the incident. Where did it occur? Record in detail the exact location on the premises where the incident occurred. If necessary, make a sketch to illustrate or support the written description of the location. The description must be precise – if necessary, carry out an in loco inspection with the accused and/or the victim and/or the witnesses.
For Example :
‘The assault took place at Mr. Nkosi’s machine, which is the CNC lathe, machine number 7, situated in aisle number 4 of the machine shop. Mr. Nkosi was standing on the South side of the machine mentioned above, and he was facing East at the time he was allegedly struck by Mr. Pienaar.
Example 2:
At the time of and on the date of the incident, Mr Johnson was engaged in re-wiring the distribution board number 7, which is situated in the ladies toilet on the 2nd floor of the main office block.
Who witnessed the incident? Record the name and occupation of each witness. There will be witnesses who will testify in favour of the victim and those in favour of the accused. A written statement is required from each witness. The witness must state precisely where he was standing in relation to the location of the incident when the incident occurred. Each witness must describe in as much detail as possible what he personally witnessed. Witnesses must not include in their statements anything that they personally did not witness. After gathering all the above – the what, where, when, and who, you must sit down and carefully read through the statements of complainant, accused and witnesses and then decide whether the incident::
After the investigation is complete, you will have the following documents to hand:
Arrange all the documents in date order and number them from number 1 upwards. Make 5 copies of this “bundle” of documents. You will then have 5 bundles of paginated (numbered) documents and statements recording the what, where, when, why, who and how of the incident.
|
|
|
Contact
numbers: (Training courses, seminars and conferences only)
Pretoria (012) 661 3208, Fax (012) 661 1411
The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za |
