Following the right procedures is essential when disciplining an employee for misconduct, especially if there’s a dismissal involved.
Not only must you be procedurally fair but you must also have a solid reason to dismiss the employee – known as substantive fairness.
If you do these 2 things right, you’ll make sure that the disciplinary process is fair and will stand up to any scrutiny at the CCMA …. if it goes there.
Unfortunately, the outcome of a disciplinary process can quiet easily go ‘pear shaped’ – especially when you’re not quite sure what to do.
This happened to a company called Paper King that dismissed an employee for sleeping on the job. (FOCSWU obo Ndzeku v Paper King CCMA Arbitration WE14519).
Here’s the story
This particular employee was hired by the company as a general worker. His job was to sort paper. (Paper King is in the recycling business).
On one occasion the receptionist found him sleeping at work. She obviously woke him up. And to her utter dismay, the employee swore at her!
You won’t believe it but the next day, the employee was found sleeping at work again.
This was too much for the company and the employee was summoned to attend a disciplinary hearing (unfortunately this was not done in writing) where he was dismissed.
Having left the company, the employee referred the matter to the CCMA as an unfair dismissal.
At CCMA, the case went to arbitration. During the hearing, the employee claimed that he was never advised to attend a disciplinary hearing. He said that he was merely told by the company to attend a ‘dismissal notice’.
He also said that the allegations against him were untrue!!
At the end of arbitration, the CCMA commissioner made a decision. He found that there was insufficient evidence that a proper disciplinary hearing was held.
Also that there were not enough substantive grounds on which to justify a guilty verdict i.e. the reason to dismiss the employee was too harsh.
The employee was ordered by the arbitrator to be reinstated. (You don’t want this to ever happen to you!)
What can we learn from this story?
As a business owner or manager, when you’re dealing with employee misconduct that you feel warrants a dismissal, you must:
- Make sure that you follow the correct procedures. In this case the company should have issued the employee with a written Notice to Attend a Disciplinary Hearing, at least 48 hours before the hearing.
- Have sufficient grounds or a very good reason to dismiss, i.e. the misconduct must be very serious to warrant a dismissal. In this case the Company should possibly have given the employee a final written warning instead of going straight for a dismissal.
Please note that you, as the employer, must be in a position to be able to prove substantive and procedural fairness should the dismissal be challenged at the CCMA.
The onus is on you to do this. But don’t worry I’ve got all the procedures and processes laid out for you clearly and in detail, in my article entitled: PROCEDURES TO FOLLOW WHEN DEALING WITH EMPLOYEE MISCONDUCT. Reading this will help you avoid the many pitfalls along the way. And be on the right side of a CCMA decision, if it ends up there.
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