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). When dismissing an employee it is paramount to follow the correct procedure.
There are two procedures:
- Disciplinary hearing – on account of misconduct
- 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).
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Steps to ensure a fair procedure and substantive fairness:
- 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.
- 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.
- 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.
- 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)?
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How to hold a consultation:
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:
- 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.
- 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.
- 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.
- 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:
Procedure to follow when dismissing an employee on account of incapacity or operational requirements:
- 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 (if necessary more than one), until an agreed upon outcome is achieved.
- If applicable, a disciplinary hearing should be held at this point (in case of poor work performance). If not, proceed as per the agreed upon outcome during consultation.
- Ensure that a written summary of the proceedings is kept on record and extended to all parties.
Contact the LWO for advice in this regard, or if you require assistance in this matter. We are available 24/7.
Not an LWO member yet? Take a look at our membership packages!
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