Anthony Sterne operates a Labour Law and HR Consultancy, Sterne & Associates, in Durban. He is also a business consultant in the restaurant industry.  These articles are not aimed at turning you into expert, but rather to give a basic understanding of labour law principles so that owners and managers are aware of the many pitfalls. As with any legal issues consult a competent labour law practitioner at all times. Questions are welcome and can be emailed direct to sterne.law@gmail.com

Too many cases are lost at the CCMA because of basic procedural errors. Over the course of the next few months I want to address the basic principles of instituting disciplinary action and dealing with the common errors.

It is not necessary to invoke a very formal disciplinary process every time there is an indiscretion. We operate on a progressive discipline system, that is, every time an offence is repeated the action becomes more severe, and as the action becomes more severe so the employees should be given more opportunity to defend themselves and state their case. This is best done in the form of a Disciplinary Hearing. There are however certain offences, which can result in a Final Warning or even dismissal on the first occasion, and the companies Code of Conduct should make this known to the staff. The first step in the process is the charging of the employee and the issuing of a notice to appear at a disciplinary hearing.

The charge - The charge is the alleged offence that the employee has committed. In labour issues the charge sheet need not be as in depth as those for a criminal matter, but must be clear and unambiguous. It is also critical that the charge correctly relates to the code of conduct in substance. This is a common error. If the employee is charged with Insolence instead of Gross Insolence, a sanction of dismissal for a first offence would not be allowed under most Codes, where as Gross Insolence could be sanctioned with dismissal.

The second common error is where the company charges the employee with 3 or 4 charges, all of which might be related to a single offence This occurs where the employer believes that the more charges brought against the employee the stronger the case will be. The problem with this stance, is that firstly you need to find the employee guilty on a charge before you can action it, and secondly the myriad of charges could be more minor and hence not warrant dismissal compared to a consolidated and more severe charge. An example would be where an employee has filled in their starting time as 9am when they in fact came to work at 9:30. The company then charges him with:

a) Being late.

b) Not following company procedure by filling an incorrect time.

The two charges, individually, would not warrant a sanction of dismissal on a first time offence, but a single charge of – Dishonesty in that you fraudently filled out the time sheet on 26 May, and in so doing gained a financial benefit at the company’s expense, would very well be a dismissable offence, even at first instance.

The second step in the disciplinary process is informing the employee of the impending hearing, the notice of hearing. Every company should have this basic paperwork on file. The notice must inform the employee of the charges, the date of the hearing, where it will take place and time. Furthermore it is best that the notice itself contains the employee’s rights, rather than informing them verbally. These rights would be the right to an interpreter, to call witnesses, to cross-exam witnesses, have time to prepare a defence and to have representation according to the company policy. It should also inform the employee that he could face dismissal if found guilty. Where the employee is a member of a union, they need to be informed that a member is facing a disciplinary hearing. If it is a shop steward then one should consult with the union and attempt to resolve the issue.

The person handing the notice to the employee must sign the notice as must the offending employee. Often the employee will refuse to sign, which is their right. Where the employee does not want to sign then it needs to be witnessed that the employee was given the notice and informed of their rights. It is for this reason that when giving a notice to an employee, to have a witness present. If the employee is under the influence of an intoxicating substance then they should not be given the Notice of hearing at that stage. Send them home and have them return the next day, whereupon you can inform him of his rights and the impending hearing, when he is in a condition to comprehend the ramifications of what is being said.

Arguably the most important part in the process now is on what date should the employee appear at the hearing? It is an inherent right of a fair procedure that the employee is given enough time to prepare their defence. There is no written rule, but generally 48 hours is considered the minimum and of reasonable time. Where the case is of a complex nature it is best to err on the side of caution and set a date that offers more time for the employee to prepare, even where the employee is on a paid suspension.

The observance of these two steps are integral to ensuring a fair procedure is observed and thus of utmost importance. Too often employers are concentrating on the bigger points and find themselves on the wrong end of an award for failing at these initial hurdles.

Next time we will discuss suspension and the use of polygraphs and breathalyzers.