02/10/2017

Misconduct and discipline - Introduction of series of posts

Misconduct and discipline - Introduction of series of posts

Misconduct: How to prove your case at a disciplinary and arbitration, some general principles.

Often when I chair disciplinary hearings I am confronted by an employer who knows what he wants to prove but not how to achieve it, or what process to follow in order to comply with legislation.[1]  This series of articles will focus on what you need to prove and how to prove it in a disciplinary hearing or even at the CCMA[2] or bargaining council.
The Labour Relations Act requires employers to be both substantially and procedurally fair in disciplining their employees.  Substantive fairness means you have to prove you had a fair reason to dismiss an employee, in other words that the employee transgressed a rule and that dismissal was a fair punishment for his “crime”.  Furthermore a fair process must be followed; the basic requirements must be met in that an employee must at least be given an opportunity to be heard.
I will write a post in the series every second week, focussing on:
·         Defining discipline and progressive discipline (warnings and other alternatives to disciplinary hearings.
·         Understanding the roles of the parties at the hearing/ CCMA
·         How to investigate and incident and decide on appropriate action.
·         Giving and overview of the whole disciplinary enquiry process; an introduction to a fair process.
·         Proving your case, introduction to rules of evidence and substantive fairness.
Although the posts may serve to give you a general overview of the disciplinary for misconduct,  I will not be able to give you all the skills necessary to manage this process successfully and would therefore recommend investing in some training in this regard.  There are some really excellent workshops on offer to give you all the necessary skill.  This may prove valuable when you are confronted with an incident that may lead to dismissal of the employee and you want to be sure you acted both substantively and procedurally fair.

Deon Louw
Deon Louw is a consultant at Keystone Human Capital specialising in all labour related matters, including chairing disciplinaries and assistance at the CCMA.
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