Do you waste time at the CCMA? Is your internal disciplinary process procedurally correct and substantively fair?

Getting married is always fun, the proverbial paw-paw hits the fan when the divorce happens. If there is not a set of mutually agreed-upon rules to guide the parties along the way during the divorce you can only imagine what a mess can develop along this journey. Time is such a valuable asset and extremely important to all of us. It is of the essence to ensure that you have your rulebook set up by a professional in advance.

Consider the following possibilities:

Due to unfair dismissal, section 193 of the Labour Relations Act 66 of 1995 sets out the possible ways that the employee can choose to follow if a court or arbitrator finds the dismissal unfair:

  • instruct the employer with reinstatement.
  • instruct the employer to re-employ.
  • instruct the employer to financially compensate.

The employee could request assistance from The Commission for Conciliation, Mediation, and Arbitration (CCMA) if unhappy with the outcome of the disciplinary inquiry. If it happens that the employee follows this route just to test the system or his/her luck it will take up more of your valuable time than what you would like to waste. 

If you are unsure of the required actions or processes and procedures to follow always approach a professional to advise you.

Substantive fairness:

  • means that there is a fair and valid reason for an employer to dismiss an employee.
  • Is dismissal the correct step to take regarding the employee’s transgression or should a lesser outcome, possibly, a verbal or written warning?
  • Is there evidence of misconduct?
  • If a rule of conduct has been broken, determine the following:
    Proof of the misconduct, based on  “balance of probabilities”. So is the probability of the misconduct bigger than the possibility that the misconduct did not happen.

Procedural fairness:

  • Has the employer followed a fair and proper procedure before dismissing an employee, the dismissal should be made with fair reasoning and a fair procedure? Grounds for dismissal should be investigated and do not need to be a formal hearing.

The employee should: 

  • be notified of the allegations being made against him/her preferably in writing.
  • have enough time to prepare a response.
  • be present at the hearing however my choice not to be present.
  • be allowed an opportunity for defense and to state his/her case.
  • have the choice of representation by a colleague or a representative from a union.
  • receive the employer’s ruling, preferably in writing.
  • be given the reason for dismissal by the employer.
  • refer the dismissal to the CCMA within 30 days after the ruling was made if unhappy or have valid reasons and evidence to the contrary of the employer’s finding.
  • have access to representation by a fellow employee if so requested.
  • have enough time to prepare his/her defense.
  • have the choice of using a translator if required.
  • receive a notification to the disciplinary hearing, stating the alleged offenses, setting out the employee’s rights with at least 48 hours to prepare for the hearing.
  • the right to offer mitigating circumstances before a sanction is given, the employer has the opportunity to offer aggravating circumstances before the sanction is given.
  • be given the reason(s) for the sanctions or dismissal and be informed of his/her rights to refer the matter to a council (with jurisdiction) or to the CCMA or to an alternative dispute resolution system which has been agreed upon between the employee and the employer.

Hope you find the middle way and care about your employees. They become family in time and in return they care about you and carry you on their hands. There is many a time that oddball rotten apple that just has his or her own mind and whatever you do that person remains the rebel without a cause. In this case, you have peace of mind that the paperwork is done.

Marius Joubert
Author: Marius Joubert

Founder of the first true community for the restaurant and hospitality industry.

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