Incapacity versus misconduct
Although both the disciplinary hearing and incapacity consultation are deemed fair procedures (if executed correctly), the employer should take care to apply the right procedure according to the employee’s conduct. In many cases employers follow the wrong procedure and then dismiss the employee. This poses a real risk to the employer if the employee refers the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the commissioner issues an award for remuneration and/or reinstatement.
- Was there a rule in the workplace and was the employee (reasonably) aware of this rule?
- Did the employee break the rule?
- Did the employer apply progressive discipline (warnings)?
- Is the rule consistently applied?
Grounds for dismissal
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