“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee…) (Extract from the “Code of Good Practice: Dismissal”)
Generally we perceive labour law as being very bureaucratic and time consuming but there are instances where this conventional wisdom does not apply.
What does the law say about dismissal?
It says that there must be fairness in terms of both the rationale for dismissal and the procedure followed. Specifically it says that there doesn’t have to be a formal enquiry provided the employee is informed of the charge/s and is given an opportunity to state his/her views in response to the allegations.
A recent CCMA determination illustrates this. The employee was arrested by SAPS on criminal charges and detained. The employer had already decided to hold disciplinary proceedings against him on different charges. As there was uncertainty as to when the employee would be released and he held an important position (as a law lecturer), the employer decided to institute disciplinary charges. The employee, through his attorney, was asked on two occasions to provide written reasons as to why he was not guilty of the charges. There was no response from the employee or his attorney and he was dismissed.
The case was appealed and the dismissal was upheld as the employer had complied with the “Code of Good Practice: Dismissal” – the employee was given the opportunity to state his position but failed to do so. It couldn’t have helped him that he was both legally represented and legally qualified in his own right.
This doesn’t always apply
If you have company procedures that require a formal hearing or if there is a trade union involved, then you will need to hold a formal hearing. There will also be other circumstances in which a formal hearing is necessary so in any doubt take advice on your particular case! Our labour laws are complex and there are serious consequences for failure to follow them.
Clearly, there are always different circumstances in every case, but this illustrates that if you operate in a fair and impartial manner, you don’t always have to go to endless bureaucratic lengths with disciplinary cases.
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