Disciplinary enquiries can be complex processes that are further complicated by the human element of working relationships.
One of the greatest tools that a manager or business owner can possess is the knowledge and skill of how to effectively run a disciplinary enquiry. The following brief questionnaire has been designed for you to assess your own levels of proficiency (scroll down for answers).
Be honest with yourself and see how you fare in this sensitive and highly technical area of human management:
1. What are the company’s rights (if any) if an employee does not arrive for his/her disciplinary enquiry?
2. Are there any instances where an employer can justify not permitting an employee to attend a disciplinary enquiry?
3. Can you name 5 rights that must be granted to an employee facing a charge in a disciplinary enquiry?
4. If an employee conducts misconduct, does the employer need to conduct an investigation or can they automatically dismiss for misconduct?
5. If an employer follows the correct procedures, is that enough for them to dismiss an employee? If not, what else do they need to do? If so, are you able to site the correct procedure?
- The company needs to set another date and time for the enquiry as the employer must be able to prove that the employee was given the opportunity of a fair hearing.
- There are a few rare occasions where an employer may prevent an employee form attending their own disciplinary hearing, such as:
- If the employee is participating in an unprocedural strike, resulting in chaos in the workplace
- If the employer is unable to communicate with the employee due to chaos in the workplace
- If the employee has absconded and the employer has tried over a protracted period to contact him/her unsuccessfully
- The employee waives his/her rights or refuses to attend the hearing
- The employee fails to attend without a valid reason
It needs to be noted that even if the above reasons occur, the employer is not automatically entitled to dismiss the employee without a hearing.
- Section 188 of the Labour Relations Act requires not only that a dismissal must be for a fair reason (substantive fairness), but that it must also be effected in accordance with a fair procedure. The Code of Good Practice: Dismissal guides employers and outlines the following rights to be extended to an employee in a disciplinary enquiry: http://www.labour.gov.za/DOL/legislation/acts/labour-relations/read-online/document.2008-05-29.3935608242
The employee has the right to:
- Be notified of the allegations in a form and language that he/she can reasonably understand;
- Be allowed an opportunity to state his/her case;
- Be given a reasonable amount of time to prepare;
- Be assisted by a trade union representative or fellow employee;
- If dismissed, to be given the reasons for the decision and informed of his/her right to refer the matter to the Bargaining Council or CCMA
- The employer needs to follow the procedurally correct route of conducting an investigation. This investigation, can, however, be an informal one
- The employer needs to have a fair reason for dismissal