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To Fire or Not to Fire.

Unfortunately, all domestic employers at some point will have to deal with a discipline problem. The Basic Conditions of Employment Act is weighted in favour of the employee because the balance of power tips towards the employer. If you don’t follow procedure, the CCMA will award against you. Ensuring the below is done and recorded, you should have no problem proving this to a CCMA commissioner.

Although the outcome may vary, the one thing that remains constant is the rights of the staff member. This is a subject that could be discussed at great length with thousands of examples. For the purpose of this article though, I will attempt to simplify the process that must be done for all dealings with discipline.

For major problems like theft, gross negligence or misconduct,

  • Firstly, you cannot dismiss someone for any offence without notice and a fair process being followed.
  • A fair process is a disciplinary hearing. You must inform the employee of the disciplinary hearing, in writing, at least 48 hours in advance and allow them to bring a representative should they desire. It is a good idea to have your own witness present, this could be a friend or neighbour. You need to get the employee to sign that they have received the notification. Should they refuse to sign, then simply write a statement to that effect and have a witness sign the notification. Keep a copy for yourself and give one to the employee.
  • The hearing itself is a chance for the staff member to put their side forward. Sometimes, their point may be valid, and once hearing it you may change your mind on the outcome. Sometimes, no excuse will be seen as valid.

o   Remain calm during the hearing

o   Only ask valid questions related to the case and charge.

o   Give the employee time to explain their side.

o   Allow any evidence to be tabled; evidence must be substantiated so any hearsay witnesses obviously don’t count.

  • After listening to all the factors and answers, adjourn the hearing. Take at least 1 hour to consider all the facts of the case. Invite your witness/assistant for their input and thoughts.
  • After careful consideration decide whether the employee is Guilty or Not Guilty.
  • If guilty, decide on a suitable sanction based on the offence. Remember to consider any mitigating circumstances i.e. length of service, what effects will the sentence have on the employee’s dependents. etc. Again, consider what effects and mitigating circumstances any sentence or lack of sentence will have on you / your employment relationship.
  • Relate all the above to the employee explaining your rationale behind the decision.
  • It’s important to take notes or record the hearing as proof that the process was conducted fairly.

If dismissal is the sanction that you decided on, ensure the following is kept in mind;

In order for a dismissal to be considered fair, you must be substantively and procedurally correct. This means that the case must have substance; a real or actual disciplinary problem must be the core element. A fair procedure must be followed to ascertain guilt and severity of the discipline problem. This said, not all discipline issues are dismissible and every case is unique, it’s best to send us an email to give you guidance through the process.

For minor issues like being late or using the home phone without permission,

  • Deal with minor issues immediately. Do not let them continue to become habits. Ensure that the rule being broken is reasonable and valid.
  • Discuss with the staff member exactly what the problem is and its effects. It’s important to give the employee a chance to amend their ways. Make notes of what and when this happened including the warnings to the employee.
  • Should the employee continue without heed of your warning, ensure further escalation of warnings are written and received by the employee.
  • When all avenues of warnings are exhausted and the employee still does not amend their ways, you are within your rights to consider dismissal through a hearing procedure stated above.

As said earlier, there are a myriad of variables that can make the difference between a fair and unfair discipline process, before you embark on a hearing for dismissal, contact us for guidance.