Discipline is the foundation on which any workplace functions. Enforcing discipline properly will result in more productive and less troubling circumstances in the workplace. An employer cannot dismiss an employee under any circumstances, even with valid reason, without holding a disciplinary hearing. This will ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.
Steps to follow when enforcing discipline
We advise employers to follow these steps to identify misconduct and enforce discipline in the workplace:
During the investigation the employer must determine all the facts surrounding the misconduct and make sure accusations are not brought maliciously. The investigation should be conducted in a fair and objective manner by a person with sufficient knowledge about the specific working environment. Take care not to rush the investigation, rather take the time to investigate the matter thoroughly. The matter must be addressed within a reasonable time. We advise employers to take more or less a week, depending on the matter.
2. Gather evidence
The employer should gather evidence to confirm the facts surrounding the misconduct. Evidence can include witness statements, photos, video footage, documentary evidence and interviewing the employee. Take note that during the disciplinary hearing the employee (accused) must be given the opportunity to cross examine witness and question evidence. Therefore all witnesses must be present during the hearing and can an affidavit not replace a witness, as a document cannot be cross examined.
3. Consult the employee
It is important when consulting with the employee to give the employee the opportunity to present more information and explain the situation from his/her point of view. The employer should also determine if the offence was due to the employee’s negligence or with intent.
4. Determine the sanction
The sanction is determined by the seriousness of the offence. To establish if the sanction is fair, the employer must consider the facts of the case as every case has its own merits. It is important to note that the employer must prove on a balance of probability that the employee is guilty before imposing any sanction.
5. Take disciplinary action
A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow. When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. The employer must take note to keep detailed records of employees’ misconduct and sanctions applied.
Necessary preparation for a disciplinary hearing
We advise employers to provide the employee with 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow the employee to prepare for the hearing. Take care that all documentation (notice to attend and a procedural application form) contains all the necessary information required by legislation.
During the hearing, the following role players are involved: the employee, the employer and the chairperson. The chairperson is an impartial third party. The chairperson is responsible for keeping the hearing in good order and making a finding of guilty or not guilty based on presented evidence.
The employer (or person acting on behalf of the employer) must lead all evidence, including calling witnesses, presenting documentation and/or video footage and emphasise the importance of the trust relationship between the employer and employee. The employer must take care to investigate and gather evidence in preparation of the disciplinary hearing to ensure that the employee is not found ‘not guilty’ due to lack of evidence presented.
We advise employers to follow these steps to ensure they are prepared for a disciplinary hearing:
- Formulate the charges and make sure it contains the correct facts.
- Choose a proficient representative to argue the case on behalf of the employer, if necessary.
- Decide on the evidence and/or witnesses to use during the hearing and order it chronologically.
- Think of possible defence that the employee can use during the hearing and prepare questions to cross examine the employee.
- Prepare closing arguments in which the evidence is summarised and argued why the employee is guilty of allegations.
- Prepare aggravating factors to support the appropriate sanction.
Labour risk is a huge business risk. To ensure the sustainability and profitability of your business, labour risk needs to be manages proactively. Not following the correct procedures can lead to dire consequences with a huge financial impact.
– Alexanrda Small
LWO Regsadviseur - LWO Legal Advisor
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