Discipline and Dismissal

Need a chairperson? Let our qualified experienced chairpersons chair your disciplinary hearing

Contact us at (012) 661 3208 or

 

Formal vs informal disciplinary hearings

Ivan Israelstam

 

The drafters of the Labour Relations Act of 1995 (LRA) expressly provided for accused employees to have a right to be heard. That is, section 188 of the LRA states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure. The Code Of Good Practice: Dismissal in Schedule 8, which must be considered when decisions on dismissal are taken under the Act, makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response. Important elements of this include:

 

  • The employee’s right to be heard emanates directly from the Constitution of South Africa and is the employee’s primary right

  • The employee must be told what case he has to meet

  • The employee must be given a proper opportunity to prepare and present his case

  • The Code Of Good Practice: Dismissal in the LRA does not require the process at which the employee is heard to be a formal one.

 

Many tens of thousands of employers lose cases at the CCMA and bargaining councils because they take too seriously the provision that the disciplinary process does “not need to be a formal one”. That is, in practice it is all but impossible to comply with the other provisions of the law of dismissal without making the disciplinary hearing process a formal one.

 

That is, the employer is forced, in order to avoid an unfair dismissal decision, to prove that the employee’s procedural rights were complied with. Let us look at these procedural rights born out of the LRA and case law and examine just how, in practice, the employer would need to go about proving that these rights have been complied with:

 

  • The right to be informed as to what the charges are – Proof would be a written charge sheet, receipt for which has been signed by the  accused employee

  • The right to a proper opportunity to prepare - Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the  accused employee well in advance of the hearing date.

  • The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her

  • The right to be fairly judged - proof would be minutes of the hearing showing that the person was even-handed and treated the accused without bias.

 

I admit that, in certain cases, proof of the above mentioned compliance could be provided by means other than signed notices and minutes of proceedings. Such other proof could include, for example, oral evidence from witnesses. However, between the disciplinary process and the arbitration hearing at CCMA a great many months may elapse. As a result the memories of witnesses fade and witnesses themselves disappear. Therefore, there is no effective replacement for written records. Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one. This conversion is reinforced by the need to separate the complainant role from the presiding officer role in order to eliminate bias.

 

In summary, the employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly controlled hearing essential.

 

The officials who carry out the corrective procedure need to be highly skilled in legal procedure in order to make sure that each and every legal right of the employee is strictly adhered to.

 

Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.

 

lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: .

 

 

 

 

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”.

Read More >>>

 

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.

Read More >>>

 

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.

Read More >>>

 

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.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Compensation for Occupational Injuries and Diseases Course

22 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

12 September 2019

Southern Sun: Maharani Towers: Durban

Employment Equity Committee Training

23 August 2019

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play