The success of a healthy employer/employee relationship is based on mutual benefits, respect and trust. However, the employer has the right to exercise control in the workplace by implementing rules, applying progressive discipline, and holding disciplinary hearings when offences are serious. An employer cannot dismiss an employee under any circumstances without first holding a disciplinary hearing. This ensures that the procedure followed is fair, and that there is substantive evidence that may justify the employee’s dismissal. There are five factors, highlighted in this article, which influence the outcome of a disciplinary hearing.

Success factor #1: Timely scheduling and completion

Success factor #2: Proper examination of facts

Success factor #3: Weigh the seriousness of the offense

Success factor #4: Impartial assessment

Success factor #5: Follow fair procedure

Labour legislation stipulates that a strict procedure must be followed when conducting disciplinary hearings. The employer must be able to prove:

• That a disciplinary hearing was held.
• That the employee was notified in writing at least 48 hours (excluding weekends and public holidays) before the hearing in order to prepare.
• That the documentation contained all the necessary information as required by law (notice to attend the hearing and a procedural application form).
• That the chairperson was knowledgeable and impartial.
• That the employee was given every opportunity to prepare for the hearing and defend his/her case.
• That both aggravating and mitigating circumstances were considered.
• That the outcome is based on the facts as presented during the hearing.
• That the sanction was appropriate in accordance with the offense.
• That the chairperson compiled a written report of the hearing and its outcome.
• That the employee received the outcome in writing.

The investigation is a vital part in the disciplinary process.

Keep the following in mind when conducting an investigation:

• It is important to establish when the alleged misconduct took place, where it happened and exactly what happened.

• Make sure allegations are not malicious and there is sufficient evidence to support every alleged offence.

• Investigate all surrounding circumstances to allegations and whether there were any witnesses.

• Assess the circumstances that led to the misconduct.

• Evaluate if the proof is sufficient to prove the employee’s guilt.

• Find out if anyone else was involved. Workplace rules must be applied consistently – if two employees were fighting, both must be disciplined.

• If goods were stolen or property was damaged, determine the value thereof. If the employer is alleging that the company suffered reputational damage, make sure there is sufficient evidence to support this.

• If possible, try to obtain video footage or pictures of the broken equipment or of the employee committing the misconduct.   

• Interview the employee to establish what happened and document or record their response to the allegations.

• Obtain witness statements.

• Establish whether there are any previous warnings on file and if there are, which warnings are still valid.

• Any other applicable information which provides full details of the misconduct.

Formulate the charges

It is important that employers deal with issues in the workplace as quickly and effectively as possible, whilst taking care to act objectively and consistently. There is no specified period for completion of an internal disciplinary investigation. Preferably, an investigation must be without any delay and not unnecessarily dragged out. An investigation depends on the nature and complexity of the case, the amount of evidence, and the availability of witnesses and other evidence.

What about suspension?

An employer is entitled to suspend an employee on a precautionary basis pending an investigation, especially if there is a possibility that the employee can interfere with the investigation in any way.   Take note that precautionary suspension is with full pay and benefits and that the employee is not being punished.  Employers should take care to always follow the correct procedures, especially when applying discipline in the workplace.

The Occupational Health and Safety Act places an explicit obligation on the employer to create and maintain a safe and healthy workplace.  It is undoubtedly in the employer’s interest to consistently apply good hygiene in the workplace.

Statistics associated with workplace hygiene are as follows:

• The average desk harbours 400 times more bacteria than a toilet seat. Regular hand washing and sanitising can decrease illness.

• According to Occupational Care South Africa (OCSA) absenteeism costs the South African economy between R 12- 16 billion annually.

Good hygiene in the workplace contributes to:

• Continuity of human resources – when an employee takes sick leave, it undoubtedly impacts on the workload of other employees. The employer does not necessarily have spare capacity to address the situation and this puts pressure on the employer’s business activities

• Saving costs by taking less sick leave – the employee is entitled to paid sick leave when he/she is unable to work due to a medical condition. When absenteeism is reduced, the employer saves money.

• Heightened productivity by counteracting presenteeism – the term “presenteeism” refers to when employees show up for work while they are ill and this leads to loss of productivity, making mistakes, etc.

• Improved morale and employee wellness.

• A positive image in respect of suppliers, customers and investors.

Be proactive and maintain good hygiene in the workplace:

• Implement a hygiene policy.

• Create awareness among employees of the benefits of good hygiene.

• Cultivate good habits (regular handwashing) and make it easier for employees to practice good hygiene by installing handwashing stations and/or hand sanitisers.

• Provide a clean restroom that is well stocked with soap, toilet paper and hand towels.

• Ensure the workplace is cleaned regularly.

Option to say ‘no’ – Leave and time off

In terms of the Basic Conditions of Employment Act, the employee is entitled to one day’s paid leave for every 17 days worked. Although the employee is entitled to take leave, the employee must still apply for leave and the employer may reject it based on operational requirements, such as for example that it is the busiest time of production.

When the employee request time off to deal with personal matters, such as visiting the clinic for a routine examination or to obtain medication, the employer can refuse. These visits can be scheduled in the employee’s private time, alternatively the employee must take annual leave. Note that paid sick leave only applies when an employee is unable to work due to a medical condition.

Option to say ‘no’ – Loans

Loans should preferably not be granted to employees. The employer is not a financial institution and when loans are granted to employees on a regular basis, this can create an expectation among employees, as well as set a precedent for future loans.

Option to say ‘no’ – Ex-gratia payments

20 tips employers should pay attention to:

1. Ensure you have an employment contract in place with every employee – the employment contract is the most important document in the workplace and forms the basis of the relationship between the employer and employee. This is one of the key tips to protect your rights as the employer. Ensure however, that you don’t settle for a generic employment contract, but rather opt for a purpose-built one according to your business.




2. Use fixed term contracts carefully and in line with legislation – employers must clearly understand that to disguise what is actually permanent employment in the form of a fixed term contract is illegal.




3. Make provisions for deductions in the employment contract – no deductions, except for statutory deductions, can be made without the employee’s consent.




4. Address time periods in the employment contract with regards to short time, rest periods, compressed working weeks, etc.




5. Implement a formal retirement age.




6. Ensure every employee has a job description with achievable goals.  Employees need to know what is expected of them and what standard applies to performance.  Continuous evaluation and training is essential to assess work performance.  Give recognition to employees who achieve goals and perform well.




7. Pay at least the national minimum wage.




8. Keep a copy of the Sectoral Determination or Main Collective Agreement (if applicable to your business industry) in the workplace and make it available to employees.




9. Display the posters of legislative summaries in the workplace – Basic Conditions of Employment Act, Employment Equity Act and Occupational Health and Safety Act.




10. Use the disciplinary code to enforce the use of personal protective equipment (PPE).




11. Verify if you are considered to be a “designated employer” in terms of the Employment Equity Act and must comply with certain requirements.




12. Ensure your disciplinary code is relevant and up to date – every workplace must have a relevant disciplinary code.  The disciplinary code is important to ensure that there are clear rules in the workplace for employees to follow.  When these rules are broken, the employer can apply discipline in accordance with the applicable sanctions as listed in the code.




13. Every business is unique – implement policies that are fair to address specific issues in your environment.




14. Have regular consultations with employees – effective communication creates an environment receptive to growth.  This creates a platform for employees to discuss their thoughts, ideas and any specific needs.




15. Issue warnings in line with the disciplinary code.




16. Be consistent when applying discipline to avoid discrimination in the workplace.




17. Always follow the correct procedure, especially when the employment relationship is terminated.




18. Implement an attendance register that also records hours worked – the payslip must also reflect this information.




19. Ensure that you, as the employer, are registered with the Unemployment Insurance Fund (UIF) and the Compensation Commissioner.




20. Implement a grievance procedure – it is imperative that the employer establish internal procedures to give employees the opportunity to bring any unhappiness or unsatisfactory working conditions to the attention of the employer.

Conflict

Misconduct

Poor work performance