Discipline and Dismissal


 
The choice of a person to Chair a disciplinary hearing is never an easy task. They are the number of qualities that are highly desirable in the choice of a chairperson and in fact the correct choice of a chairperson is a critical element in the success or otherwise of the disciplinary process.


A very vital element (indeed, a requirement) of what is termed "fair procedure" is that the chairperson of a disciplinary hearing should:

  • Be unbiased and impartial
  • Have no prior knowledge of the case
  • Must remain neutral at all times and does not represent either party to the dispute
  • Have a good knowledge of the correct procedure
  • Be capable of taking down his own notes during the proceedings
  • Have at least a working knowledge of the correct dispute resolution procedures.
  • Have at least a working knowledge of basic labour law.
  • Be experienced in weighing up evidence, and experienced in separating the facts from opinions and hearsay in order to arrive at a verdict of guilt or innocence.
  • Be able to justify and give reasons upon which his verdict of good or innocence is based.
  • Be experienced in considering all the factors that need to be considered in arriving at a finding on a suitable and fair sanction.
  • Be able to justify and give reasons upon which the decided sanction is based.



It can be seen that this is not a task for an amateur. The chairperson should have no prior knowledge of the case, and he should owe no allegiance to either the complainant or the respondent. This means that the chairperson must be completely neutral.



It is extremely difficult in the work situation to keep a pending disciplinary action a secret. It is almost 100% certain that when disciplinary action is to be taken against an employee, the news of the forthcoming disciplinary process spreads like wildfire throughout the workplace, even before the official notices have been issued.



It is even more certain that knowledge of the case will have come to the attention of anybody in a management position higher than a supervisor, and in all probability everybody below that level knows about it as well.



How then do you choose an impartial and unbiased chairperson from within the workplace? It is virtually impossible. And then what about all the other desirable attributes that the chairperson should possess?

 
 

In addition, the person chosen from within the organisation to act as chairperson will, with certainty, be primed before the hearing by the M.D. or somebody higher, and will be told what outcome the employer desires from the disciplinary process. This usually entails something like "I want this person fired. If you don't fire him, I will fire you." And thus the "unbiased and impartial" chairperson proceeds to chair the disciplinary proceedings.



The chairperson must be able to apply his own mind, as opposed to applying the pre-decided mind of the employer, to the facts of the case and to his deliberations in arriving at a sanction. If this cannot be done, a fair verdict and a fair sanction cannot be arrived at. If the chairperson is simply going through the motions and following the employer's instructions regarding the desired outcome, the proceedings become an absolute farce and it would be far better for both bodies if the proceedings were simply dispensed with, and a verdict and sanction announced without any prior procedure.



Most employers utilise a chairperson from inside because they are reluctant to pay a fee of R1500-00 or perhaps R2000-00 for the services of an outside chairperson. But when one considers the final cost of utilising a chairperson from inside the organisation in terms of conciliation and arbitration proceedings and possibly the costs of an attorney to represent at arbitration, and then add to that the award made in favour of the employee, the question must be asked which is the more economical route to follow?



Choose Wisely.!!!!!

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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