Many managers I deal with enquire regarding procedural fairness. This always leaves me a little taken aback as they should be familiar with their company policy and procedures in this regard.
Some companies however do not have Disciplinary Policies and Procedures or guidelines for managers. Should this be the case then there is no need to look any further than the code of good practice - schedule 8 of the LRA which I refer to below.
Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
This is all fairly simple to understand and all managers should be familiar with it. Where the problems seem to come in is that manager get offended and reacts to the behaviour of the employee. This leads to a very subjective approach to the resulting disciplinary process. The result is that substantive fairness is sometimes forgotten and overlooked.
Substantive fairness
The person who is to decide on the fairness of a dismissal should consider the following
Did the employee break a rule of conduct in the workplace?
Was the rule valid and reasonable?
Did the employee knew about the rule or should have known about the rule?
Has the employer has been consistent in applying the rule?
Is dismissal the appropriate step to take against the employee for breaking the rule rather than a less severe penalty like a final written warning or suspension?
In summary
The penalty must suit the crime
In terms of schedule 8 the proper procedures should be followed
Personal feeling must be put aside
Des Squire (Managing Member) AMSI and ASSOCIATES cc
[email protected]
