Why must we investigate allegations of misconduct in the workplace or outside the workplace? Why can an employer not simply call the employee to the office, and give them a warning, or if the employee has committed the offense or other offenses more than once simply call the employee into the office and dismiss them?
The answer lies in our Constitution, which guarantees all persons fair labour practices, and our labour laws, specifically the Labour Relations Act, 66 of 1995 (LRA).
What is FAIRNESS?
The concept of fairness involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstance of each matter.
Fairness comprehends that regard must be had not only to the position and interest of the worker, but also those of the employer, to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so it must have due regard to the objectives sought to be achieved by the Act.
When any employee breaks a rule or regulation of the employer, such as the rules set out in the employer’s disciplinary code of conduct, or breaches a company policy or procedure, or a condition of their employment contract, then that action by the employee is themed to be “misconduct”. The employer is entitled to rectify or act against the employee who has broken the rules.
The procedure followed by the employer is the theme “The Disciplinary Procedure”.
This disciplinary procedure or inquiry consists of several parts, which are mainly described in Schedule 8 of the LRA.
An investigation to establish what rule has been broken, and to gather evidence to prove that the employee is guilty.
Proper collating of the evidence gathered or obtained.
To decide as to whether the manner will be addressed by formal disciplinary hearing or informal disciplinary hearing.
The convening of the disciplinary hearing
The holding of the disciplinary hearing, at which evidence is presented by the employer (the initiator) and that evidence is responded to by the accused employee (the accused employee).
A decision is made by a chairperson regarding whether the accused employee is guilty or not guilty, and if guilty, the chairperson will recommend a suitable sanction.
From the LRA and the code of conduct on misconduct, as contained in Schedule 8 of the LRA, it is therefore clear why an investigation is necessary. Another reason is that an employer must never overlook an act of misconduct – it does not matter how minor or insignificant the act of misconduct may be. This creates inconsistency and employees do not know what is expected of them.
If an employer overlooks an act of misconduct and takes no action, then the employer could be accused of condoning the misconduct and giving permission to the employee – or all employees – to carry on doing it. This may create the impossible situation of whether the employer will find that its employees have become unmanageable. It is essential that all employers must adopt disciplinary rules that establish the standard of conduct required of their employees, both on and off the workplace (Schedule 8 – Code of Good Practice – Dismissal),
In addition, these rules must create certainty and consistency in the mind of the employee, and this requires that the employer’s rules be fair, lawful, and reasonable, and must be applied with consistency. This also requires that these standards of conduct are clear and made available to employees in a manner that is easily understood. Labour law also provides that some rules or standards of conduct may be so well established and known, that it is not necessary to communicate them.
In other words, to be consistent, the employer must have their rules in place, which are made known to the employees, and they must address every incident of misconduct, by following the same procedure and measuring everybody by the same standard.
It is also essential that the employer must keep records for each employee, specifying the nature of any disciplinary transgression, (incidents of misconduct committed by that employee) as well as a record of the actions taken by the employer (the sanction applied) and the reasons for those actions.
It is obvious that, to comply with these requirements a proper investigation of any incident of misconduct is essential. Improper unfair or poor chairing of a case is also probably once of the biggest causes of employers “losing” cases at the Bargaining Council and or CCMA and the Labour Court and having to reinstate dismissed employees and pay compensation.
By “proper”, is meant the presentation and chairing of a disciplinary hearing in a fair and lawful manner, which allows the chairperson to reach a finding on guilt or innocence logically and fairly, by considering all the evidence on a balance of probability and arriving at a fair and reasonable sanction.
There are several factors to be considered to achieve this. The procedure needs to be fair, and lawful. Lawful does not mean that the employer’s procedure must follow courtroom rules and court protocols – it means simply that the procedure must not contravene any law contained in any act of Parliament.
The best guide to a fair and lawful procedure is Schedule 8 to the Labour Relations Act, the Code of Good Practice – Dismissal. A chairperson cannot chair a disciplinary hearing effectively if they don’t know what to do and which principles to apply. It is therefore imperative for every employer to have proper-disciplinary procedures, which must be followed in all disciplinary hearings, by whoever the chairperson is.
The prime requirement is that the same procedure is applied in all disciplinary hearings where misconduct is being addressed, in the interest of consistency in the application of discipline. If an employer follows differing procedures at different disciplinary hearings, they will certainly be found to be inconsistent in the application of their discipline, which is a sure road to disaster at the Bargaining Council and or CCMA.
Therefore, proper, established procedures must be in place, to be followed at every disciplinary hearing. Often the employer has two procedures – one procedure for formal hearings, and one procedure for informal discussion/warnings or counseling. Normally warnings that do not warrant dismissal can be done via the informal procedure. This also applies to the counseling procedure an employer may have. It is advisable to always follow the two core principles of the right to represent deference and the right to be represented, even in the case of informal or counseling procedures.
If the outcome of the hearing is serious like a final warning or dismissal, then the formal procedure must always be followed.
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