In Mzeku & others v Volkswagen SA (Pty) Ltd (2001) 22 ILJ 1575 (LAC), the court held that the LRA doesn’t permit reinstatement where dismissal is found to be only procedurally unfair. However, the Labour Appeal Court is divided by the question whether a procedural flaw can render a dismissal substantively unfair as well.
If procedural errors result in matters of substance being neglected, a dismissal may well be found to be both procedurally and substantively unfair.
Can you imagine the excessive costs in terms of finances, time and resources to work through such cases? So many cases end up in the CCMA arbitration or Labour Court arena due to one simple reason: Lack of preparation. Employers are often too busy or are simply unaware of how to properly conduct and prepare for a disciplinary enquiry.
They have 3 options:
- Wing it and hope for the best
- Expend on an external professional so that the long term expenses are minimised
- Upskill on how to prepare for a disciplinary enquiry and avoid future costs
In preparing for a disciplinary enquiry, we would recommend following the following process:
- Remain as objective as possible. If you are unable to be objective, make use of the services of an external party
- Begin your investigation
- Decide whether or not to suspend the employee, particularly if a person or property is under threat, or if he or she may tamper with evidence
- Gather your facts
- Ask questions, examine documentation and thoroughly investigate the circumstances surrounding the alleged incident
- Consider both the factors which lead up to the incident, as well as surrounding factor which may enhance or mitigate the allegations
- Seriously assess whether you have sufficient evidence to proceed with a disciplinary enquiry
- Formulate the charges
- Sort your evidence into a cohesive and sequential format
- Select your witnesses carefully
- Decide what documentation you will use
- Decide who will present the evidence at the disciplinary inquiry
- Prepare questions for the employee’s witnesses
- Plan questions that could be used to cross-examine the accused’s evidence
Remember the words of Benjamin Franklin: “He who fails to plan, is planning to fail!”
To learn more about preparation, conducting and competently running disciplinary inquiries email Gordon for more details: firstname.lastname@example.org.