The Guidelines on Misconduct proceedings, as published by the CCMA, set out the basic guidelines that employers must follow prior to dismissing an employee for misconduct.
It states that where a workplace disciplinary procedure exists, a commissioner must have regard for that disciplinary procedure’s existence and legal status. If there is no workplace procedure, the commissioner must apply the Code of Good Practice (Item 4 of Schedule 8 – The Code of Good Practice: Dismissal of the Labour Relations Act (LRA)). The Code sets out five (5) procedural requirements, and employers must ensure that these requirements are adhered to prior to a dismissal:
- The employer must notify the employee of the allegations of misconduct using a form and a language that the employee can reasonably understand – Such notice should be clear and comprehendible. The object is to allow the employee to state their case in response.
- The employee should be allowed a reasonable time to prepare a response to the allegations – The complexity of the allegations will be considered when determining whether sufficient time was given.
- The employee should be allowed the assistance of a trade union representative or fellow employee in preparing a response and stating a case in any enquiry.
- The employee should be given the opportunity to state a case in response to the allegations. Essentially this means that the employee must have an opportunity to give their testimony or evidence and to call and question witnesses.
- The employer should communicate the decision taken, furnish the employee with the reasons, and, if dismissed, advise the employee of the right to refer a dispute to the CCMA or relevant council.
The common law principle of “Audi alteram partem” must be applied. Translated, the principle means “let the other side be heard”. It is the responsibility of the employer to apply this principle before dismissing an employee. If a commissioner finds the procedure defective, they may award compensation to the employee for the employer’s failure to comply with procedural fairness as a requirement for a dismissal.
Article By: Ruaan Heunis
Provincial Manager – CEO Gqeberha