Discipline and Dismissal

 

It is a fact that more employers lose cases at the CCMA because of poor preparation than for any other reason. Employers must realize that, from the beginning, the employer is preparing a case for the CCMA. I receive numerous cries for help from employers stating that "we followed all the fair procedures and now the employee is taking us to the CCMA stating that no procedure was followed."


Further questioning on my part always reveals that the "fair procedure" followed by the employer prior to the dismissal consisted of nothing more than "we spoke to him a number of times about his absenteeism, and we warned him several times. But eventually we had to dismiss him." The employer has absolutely nothing in writing – why am I not surprised when the employee refers a dismissal to the CCMA – and ends up with an award of a few months salary?


Employers must realize that the CCMA will very seldom question the employer's reasons for the dismissal. The CCMA is concerned with only one thing – fairness. The employee only has to prove that he/she was dismissed. That's all. The employer must prove that the dismissal was effected only after following a fair procedure, and the employer must prove that the dismissal was a fair sanction under the circumstances.


How can the employer possibly prove this, if the fair procedure consisted only of "we spoke to him on several occasions and gave him several warnings" and there is no written record to substantiate this ?'' There is no substitute for preparation – and employers must realize that, right from the time the act of misconduct is brought to the attention of the employer, preparation for the CCMA conciliation and arbitration has begun.


In every instance where there is a possibility of dismissal, the employer must prepare for the disciplinary hearing as if he were preparing for the CCMA conciliation and arbitration – for the simple reason that 99% of employees will refer the matter to the CCMA. Apart from that, proper preparation involves investigation, gathering of evidence, taking down witness statements, preparation of witnesses, appointment of Chairperson, arranging the disciplinary hearing, and applying the sanction.


Most importantly, the purpose of the investigation is firstly to establish whether an act of misconduct has been committed at all, and secondly, if so, whether there is a need for a formal or informal disciplinary hearing. Not every act of misconduct requires a formal hearing – usually only those instances where dismissal is a distinct possibility will require a formal approach. Instances where a warning is the likely outcome can be addressed informally and quickly.

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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