Know how to issue a notice fairly to avoid any comebacks at the CCMA
When extremely serious misconduct has occurred, or where previous attempts by the employer to correct an employee’s behaviour have failed, management may be of the view that an employee’s services with the company must be terminated. In a previous article, we gave guidance as to which offences warrant dismissal. We explained that dismissal for misconduct is reserved for the most serious misconduct or repeated offences. Schedule 8 of the Labour Relations Act (the Code of Good Practice: Dismissals) gives guidance in this regard and stipulates that dismissal is reserved for misconduct that is “of such gravity that it makes a continued employment relationship intolerable”. It goes on to give examples of serious misconduct that would (subject to consideration being given to the individual merits of each case) warrant dismissal:
- Gross dishonesty
- Wilful damage to property
- Wilfully endangering the safety of others
- Physical assault on others
- Gross insubordination
More in-depth examination of the principles of fairness as they relate to dismissal fall beyond the scope of this article and are dealt with in other articles. However, if you are at the stage where you need to issue a notice to attend a disciplinary enquiry to an employee, follow the guidance provided here. The key points are dealt with below:
- The employer is required to notify the accused employee of the allegations against him or her. Be specific about the date, time and place of the offence, how offence took place, etc. Remember that the accused employee has a legal right to know exactly what case he or she has to answer – the more detail, the better. For example, if you are charging an employee with theft of a laptop, the charge should not simply read “theft” or “theft of company laptop”. You will be surprised at how often this vagueness creeps in to notices. The charge should rather read “Theft of company property, a laptop computer, in that on 5 January 2021 at 16h30, you concealed a laptop computer, belonging to the company, in a towel which you then placed in your bag and attempted to remove it from the company premises without the required authorisation from your manager.” In this fictitious example, you can see that a great amount of detail in being included in the charge itself – there can be no doubt as to what the details are surrounding the charge.
- Use form and language that the accused can understand. The charge or charges ought to be written in a way that the employee can easily understand. Steer clear of using overly complicated or legalistic language, particularly with less sophisticated employees – it is not fair to charge an employee using language that he or she does not understand. Keep it simple, but provide adequate detail for there to be no doubt in the mind of the accused as to what he or she has allegedly done.
- Sufficient time must be given to allow the accused to prepare. Whilst there is no specific legislated minimum time that must be given in order for an employee to prepare, it is generally accepted that at least 48-hours’ notice should be given to the accused employee. It is also important to bear in mind that where the accused is a trade union shop steward, the Code recommends that disciplinary action should not be taken before management has informed and consulted with the trade union.
- The accused must be informed of his or her rights at the disciplinary enquiry. These include the right:
- To be heard by unbiased chairperson
- To hear all evidence brought against him/her
- To testify and present his/her own defence/evidence
- To be represented
- To an interpreter
- To bring witnesses
- To cross examine others
- To argue in mitigation
- To be given reasons for sanction
- To appeal findings
The notice of the disciplinary enquiry must also obviously include the date, time and place where the enquiry will be held and provision should be made on the notice for the accused and his or her representative to sign in receipt. If the employee is not present to sign in receipt of the notice, then the notice needs to be sent through some form of traceable means (registered post, email, WhatsApp, etc.) so that it can be proven that the accused received the notice.