A situation that many a naïve employer has sat with at the Commission for Conciliation, Mediation and Arbitration (CCMA) or another relevant forum, is that of being confronted by a situation whereby they have dismissed an employee for legitimate and serious misconduct. Yet, they are informed by the relevant forum that they need to consider settling the dispute because they did not follow the correct procedure.

To avoid such a scenario and ensure that employers are protected insofar as possible, the aspect of the procedure prior to dismissal, specifically for dismissal for desertion, will be explored further. When it comes to dismissals, an employer’s first port of call for any guidance or direction in this regard lies in the Code of Good Practice, Dismissals (Schedule 8 of the Labour Relations Act (LRA)). While this Schedule covers various facets relating to dismissals, when it comes to procedure, the key takeaways are that the employer must at least investigate or ascertain the facts about alleged misconduct committed. To do this, the employer would need to possibly interview any employees involved, speak to witnesses, or even discuss the matter with the employee first to get a full version of events. Following this and upon it becoming apparent that misconduct of some kind had possibly been committed, the employer, depending on the severity of the alleged misconduct, needs to schedule a disciplinary enquiry to investigate and test whether the misconduct had been committed.

A common stumbling block for employers relates to dismissals for desertion, especially insofar as it relates to the procedural aspect thereof. Many employers have clauses in their employment contracts or provisions in their respective disciplinary codes that indicate that the employee would be deemed to have deserted their position after five consequent days of absence from the workplace without reason or excuse. While this may seem simple enough, should an employer dismiss an employee for desertion, the employer must keep in mind that for them to be successful at the CCMA, for instance, they would need to prove, amongst other things, that the employee had no intention to return to the workplace. How does an employer go about this, then? Firstly, the employer needs to try and ascertain the whereabouts and reason(s) for the employee’s absence. This can be done through sending registered letters, text messages or telephoning. The critical aspect is that the employer must record all attempts to contact the employee, irrespective of how contact was made.

Once the above has been done and the period referred to in the contract or disciplinary code pertaining to desertion has elapsed, the employer must send out a notice of disciplinary enquiry to the employee informing them that they are to return to work immediately and that they will be subject to a disciplinary process as a consequence of their unauthorised absence. Should the employee fail to arrive for the disciplinary process, then the employer should postpone the process and send out a new notification to the employee. Should there still be no response or participation from the employee, then the employer would be in a position to proceed with disciplinary action against the employee in relation to the desertion and the employee’s absence.

Consequently, while various forms of misconduct may warrant dismissal, employers must be aware of and follow the correct procedures as set out in the Code of Good Practice prior to affecting the dismissal. This way, employers can protect themselves against unnecessary, and often costly adverse outcomes should employees refer their disputes to the CCMA or other relevant forums.

Article By: Daniel van der Merwe
National Collective Bargaining Co-ordinator