The majority of matters referred to the Commission for Conciliation, Mediation & Arbitration (“CCMA”) relates to unfair dismissals of employees. As labour attorneys, we often deal with these matters and have the privilege of evaluating the actions of the employer.
As they say: “hindsight is a perfect science”, and in these cases, the employer’s actions are compared to very thorough guides in the form of schedules to the Labour Relations Act.
The success or failure of an alleged unfair dismissal matter at the CCMA depends on two distinct aspects: firstly whether or not the actions by the employer was procedurally fair; and secondly whether a substantively fair reason for the dismissal exists.
In the case of alleged misconduct by the Employee, the fairness of the action taken by the employer is much too often drawn into question as a result of a mere lack of knowledge.
Fairness in procedure
Following a fair procedure when disciplining an employee is literally one of the simplest tasks to accomplish, but is frequently overlooked due to ignorance of the law. Ensuring the fairness of the procedure is divided between two authorities.
Initially, the burden is placed on the employer itself or its representative (usually a Human Resources representative) to ensure that the employee is properly informed of the disciplinary hearing, his or her rights at the hearing as well as to ensure that the charges against the employee are clear and concise.
It is a common misnomer for employers and employees to believe that it is prerequisite to allow at least 48 hours between informing an employee of a disciplinary hearing, and the hearing itself.
Very seldom does the law provide such strict time-periods; in this case, the criterion is that the employee should receive reasonable notice to prepare a ddefenceto the charge. In other words, serious offences could require more than 48 hours and very minor offences could require much less.
In order to ensure compliance in informing the employee of the charges and his/her rights, it is necessary to have a comprehensive and thorough written notice to provide to the employee.
Although some internet sources may have acceptable precedents, it is advisable to approach a labour attorney to ensure that your company’s notices are up to date and complete.
The hearing itself
In order to avoid troubles at the CCMA for procedural fairness, it is necessary to ensure that the hearing is conducted fairly and unbiased.
It is absolutely mandatory to ensure that the chairperson of the hearing is an impartial third party. This does not mean to say that the chairperson may not be an employee of the same company; however, the chairperson should not be involved in the facts surrounding the alleged misconduct.
In certain cases, however, it may be necessary to instruct an attorney or HR specialist to conduct the proceedings as chairperson.
The way in which the chairperson conducts his/her duties will determine the whole dynamic of the matter. A checklist approach should be followed by inexperienced chairpersons to ensure that they do not skip over important steps.
In summary, the chairperson should ensure that the employee understands all his/her rights; that the rights have been and are observed; that both the employee and the employer is provided an opportunity to call witnesses, cross-examine each other’s witnesses and argue the details of their case based on the evidence led.
The outcome of the hearing
Following the conclusion of the hearing, the chairperson should make a finding and recommendation to the employer. It is a common misnomer that the chairperson decides the fate of the employee, when in actual fact, only the employer has the authority to decide how a guilty employee should be punished.
In the event that the chairperson finds the employee guilty of the misconduct, the employee should be provided an opportunity to provide mitigating circumstances – which are any personal or professional factors that should be taken into account in recommending a fair sanction to the employer.
The employer’s representative will, in turn, be asked to provide aggravating circumstances. The purpose of this step is to ensure that each disciplinary hearing is conducted on a case-to-case basis and to ensure that progressive discipline is applied in each case.
Fairness on the merits
When examining the code of good practice for dismissals based on misconduct, a very clear outline is provided for employers. This outline should be followed when compiling the charge sheet, and should again be in the chairperson’s mind when evaluating the evidence from the disciplinary hearing. The code of good practice provides the following guidelines:
- There must be a valid or reasonable rule or standard;
- The employee must be, or could reasonably be expected to have been aware of the rule or standard;
- The employer should apply the rule or standard consistently in the workplace;
- The sanction imposed should be reasonable in comparison to the charge.
In applying these factors, it is advisable to ensure that your company has a disciplinary code or policy; and that the employees receive a copy of the code at the commencement of their employment. That will automatically reduce the risk of faltering on the first two requirements.
In order to ensure that the final requirements are observed, it is necessary for the employer to be proactive in enforcing the disciplinary policy. If the employer fails to hold a certain employee to the rule, only to enforce it on another, the CCMA might just believe that the employer is playing favourites and had a personal vendetta against an employee.
If these guidelines were followed when compiling the charges against the employee, and are again followed by the chairperson when evaluating the evidence at the hearing, the only task that the chairperson is left with, is deciding whether or not the employee had actually contravened the rules or standards complained of.
No employer should be afraid of the CCMA, for it is a forum that is called upon to decide the fairness of actions taken by parties to an employment relationship. If a little effort is spent by employers to ensure that their disciplinary policies and procedures are up to date, a lot of effort will be saved in battling disgruntled former employees at the CCMA.
Written by Dawie Coetzer
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