Dismissal procedures

The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is that the employer follows the correct procedures, especially dismissal procedures.

How to dismiss an employee:

An employee can be dismissed on three accounts: misconduct, incapacity (poor work performance or medical disability) and operational requirements (economical, technological or structural reasons, which are also known as “retrenchments”). When dismissing an employee, it is paramount to follow the correct procedure.

There are two procedures:

1. Disciplinary hearing – on account of misconduct
2. Consultation – on account of incapacity or operational requirements

How to conduct a disciplinary hearing:

Procedure to follow when dismissing an employee on account of misconduct:

Your disciplinary code stipulates the rules of the workplace. It is vital that these rules are discussed with employees and reduced to writing. Only then can employers prove that employees are aware of the rules and the consequences when these rules are broken. When these rules are not followed, the employer must apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. A disciplinary hearing must be held to ensure that fair procedure is followed and that a substantive reason has been established for the employee to be dismissed. It is also of the utmost importance that an employee is given the opportunity to present his/her case and to call witnesses.

Should a hearing be formal or informal?

A hearing can be formal or informal, but it is essential that the employer must be able to prove that a hearing was held. Our advice is therefore to always conduct a formal hearing. The employer can then ensure that all the necessary paperwork is in order if the matter ultimately proceeds to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Steps to ensure a fair procedure and substantive fairness:

1. Issue the employee with a notice to attend a disciplinary hearing. The employer must state the date, time and place where the hearing will take place. The notice must also contain a detailed description of the charges brought against the employee, including the date, time and description of the incident(s). We advise employers to provide the employee with at least 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow him/her to prepare for the hearing.

2. Hold the hearing on the date and time proposed. Even if the employee does not attend the hearing the employer should proceed to present the evidence to the chairperson. It is up to the latter to determine if the employee had sufficient notice of the hearing and if the employee was absent for a valid reason or not. At the end of the hearing the chairperson recommends to the employer to either dismiss the employee or not.

3. During the hearing the chairperson will ask the employee to plead guilty or not guilty to the charges brought against him. After this, the employer presents his case by presenting evidence and calling witnesses. The employee is then allowed to present his/her case and cross-examine the evidence presented by the employer. Thereafter, the employer may cross-examine the employee’s evidence and witnesses. At the end of the hearing both parties make closing arguments.

4. The chairperson must make a finding of guilty or not guilty. The employer is then asked to present aggravating factors, while the employee is asked to present mitigating factors. The chairperson then determines the sanction to be imposed on the employee. If the chairperson determines dismissal to be the appropriate sanction, the employee can be dismissed with immediate effect.

Who should be the chairperson?

The chairperson of a hearing should always be an objective and impartial third party to the matter, preferably with knowledge of labour law procedures and requirements. We always suggest that the employer ask a legal representative from an employers’ organisation. If an impartial person is not available on the premises, you can ask a neighbour, if he/she has sufficient knowledge of the procedures to follow. It is important to prove at the CCMA that the chairperson was not biased.

A commissioner at the CCMA will always enquire:

• Was there a rule in the workplace?
• Is there proof that the employee was aware of this rule?
• Did the employee act according to the rule?
• Was there progressive warnings (according to the offence)?

How to hold a consultation:

• Issue the relevant parties with a notice in writing of the intended consultation.
• Provide the parties with at least 48 hours’ notice of the consultation, excluding weekends and public holidays, to allow preparation for the consultation.
• Hold the consultation where the parties discuss the issues specified on the notice of consultation, determine what steps should follow next and agree on outcomes to be achieved after the consultation.
• This might include providing the other party with further training and or counselling and evaluation in the case of poor work performance; or sending an employee for an occupational medical assessment for medical incapacity; and for the employer to provide feedback on points discussed during the retrenchment consultations regarding possible alternatives raised
• Hold follow-up consultations where necessary to evaluate the current position of affairs.
• If the desired outcome is not reached within the stipulated time period or where the employee is deemed to be permanently incapable of performing his/her work (in the case of incapacity or poor work performance procedures), then the employer may provide the employee with a notice of hearing where similar procedures as a disciplinary hearing for misconduct will be followed.
• With matters such as retrenchments, once all of the consultations have been held, and where necessary the employer has waited for the required time to pass, the employer can give notice of the retrenchment to the affected employees.
• Ensure that a written minutes of the proceedings are kept on record and available for any future disputes that might arise.