Following the right procedures

André Claassen

Employers should ensure that they follow the correct procedure for the act of misconduct, or the poor work performance in question. The disciplinary procedure applies to misconduct and the evaluation, counseling training and guidance procedure for incapacity - poor work performance.

Following the wrong procedure will eventually result in losing a case at the CCMA/Bargaining council. There is a general perception that the CCMA and/or Bargaining councils are not totally impartial, and despite following a fair procedure, and dismissing for a fair reason, the Commission or Council still rules in favour of the employee.

What employers don't realise is the possibility that they charged the accused employee incorrectly, or dismissed for a reason that was not on the charge sheet. For example, charging the employee with theft, but dismissing because the trust element in the employment relationship has broken down. Section 185 of the Labour Relations Act states that: "Every employee has the right not be unfairly dismissed".

This means that although there might be a good reason for dismissal, an employer is still required to follow a fair procedure which includes providing the employee with the opportunity to state his case. Irrespective of the evidence against an employee i.e. eye witnesses, surveillance cameras etc. employers should realise that a dismissal without a fair procedure is not an option.  

The distressing part about this is that employers often act in the heat of the moment and proceed with an immediate dismissal without following a fair procedure. Reality is that should that employee in these circumstances refer a dispute to the CCMA/ Bargaining Council it is almost guaranteed that the employer will lose the case, not because of lack of evidence, but the mere fact that they did not follow the right procedure.

 
How is an employer supposed to know which procedure to follow?  Unfortunately in practice it is a fact that employees know their rights, including procedures, better that the employers.

This kind of unfortunate circumstances i.e. losing a case even if employers catch the employee red-handed, stealing will continue until such a time that employers realise the importance of educating themselves with regards to labour laws and regulations.

Managers should be made aware of the rules and regulations of the company and they should understand the fact that not all dismissals are necessarily unfair. Often employers have all the policies and procedures in place but they fail to follow their own procedures.

Employers should understand that when an incident has occurred, whether it's due to the fault of the employee or due to outside influences, an investigation must be carried out into the circumstances of the case.  It is important not to jump to conclusions and, sufficient time must be allowed for detailed investigation..

Even at a point where employers feel confident that they have enough evidence to proceed with a dismissal, the employee should still receive a fair chance to state his case.

The above should include procedures such as a notice of disciplinary hearing where the employer informs the employee of the charges against him/her, allowing the employee enough time to prepare for the allegations against him/her etc.

Employers cannot prevent employees going to the CCMA/Bargaining Council.  They need to accept and understand the fact that these institutions are easy accessible as well as free of charge.  Therefore it is important that employers should treat cases as if they will eventually end up at the CCMA. 

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