In workplace discipline, employers bear the onus of ensuring that they act procedurally and substantively fair towards their employees. In any disciplinary proceeding, the proper procedure should be followed.
Employers have workplace rules and regulations that all employees must abide by.
In a situation where an Employee allegedly does not adhere to such workplace rules and regulations the Employer may take steps to decide on their guilt and where necessary, the form of discipline.
Regarding company disciplined inquiries, there are two aspects:
- Procedural Fairness
- Substantive Fairness.
The first component of procedural fairness is to ensure you investigate any allegations of misconduct.
This means that take the time out to find out whether or not the employee actually committed that misconduct, and by doing so not only will you be complying with the procedure but you will be gathering evidence of the misconduct.
The next important aspect is to hold a disciplinary hearing. This means that you must have a formal meeting with the employee which the employee will be notified through a notice
Notice to attend a disciplinary hearing?
It is necessary to inform an employee of the disciplinary complaint. Accordingly, the employee should receive a notice to attend the disciplinary hearing atleast 48hrs before the hearing. In such a notice, the following information should be provided by the employer to ensure procedural fairness:
- Date, time and place of the hearing;
- The charges laid against the employee;
- Notification to the employee of the option to be represented;
- Notification to the employee of the right to an interpreter; and
- Notification to the employee of the right to call witnesses to prove its case and innocence in the case levelled against him/her.
An employee should be given the opportunity to prepare for a disciplinary hearing.
This means if they need particular files, documents, or to consult with another employee, they should be provided with the opportunity to prepare.
Fair Procedure
At the disciplinary hearing, give the employee an opportunity to speak and cross-examine any witnesses that you bring. You must appoint a fair chairperson as well to make sure that there’s no biasness.
In terms of Procedural Fairness give the employee a written outcome of the hearing together with reasons.
Substantive Fairness deals with the reasons to dismiss an employee. Substantive fairness looks at the consequences of an employee’s misconduct in the workplace.
You must have a charge sheet given to the employee when you are formulating the charge sheet. Look at what wrong did the employee commit to making sure that you have the evidence to back up these charges against the employee, and then at the disciplinary hearing, you are going to lead the evidence against the employee.
Substantive Fairness is to make sure that the charges you are giving against the employee are specific. This means that the charges must include a date, sufficient details for the employee, and a result.
Conclusion
As set out above, the basic requirements for fairness are provided to the employee and employer as a guideline to comply with the Act.
To avoid further action by the CCMA, Bargaining Council, or even Labour Court, it is essential to ensure your company is following the correct procedure.
