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Follow these five rules to avoid a CCMA case after Cathy's dismissal

by , 23 December 2014
Let's say your employee, Cathy, commits an act of misconduct. She stole petty cash and you can't trust her anymore.

As a result, you want to dismiss her.

But dismissing Cathy isn't that straightforward.

There are five rules you must follow to ensure her dismissal is fair.

Read on to find out what they are so you can avoid a CCMA case following her dismissal.


Thinking of dismissing Cathy? Consider these five rules first

 
Rule 1: Find out if Cathy broke your rule
 
Use the facts of the case and the evidence you have against Cathy to check if she broke your rules.
 
Take into account the standard of proof – you must prove Cathy's guilt on a balance of probabilities. This means you must show it's not only possible, but probable she committed the offence.
 
Remember, the chairperson of the disciplinary hearing can only make his decision after analysing all the facts in the disciplinary enquiry.
 
Rule 2: Find out if Cathy knew about your rules
 
You must find out if Cathy knew about your policy and rules in the first place. Or that it was so obvious she must have known about them. Or it could be reasonably expected of her to have been aware of the rule that was in place saying her misconduct was against your company policy.
 
You must use your disciplinary policy to prove what Cathy did amounts to misconduct and she broke your rules. You must also show you made the policy available to all your employees and that they're aware of its contents.

 
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Rule 3: Make sure you apply your rules consistently

If there's one thing that will get you into serious trouble when dismissing, it's being inconsistent.
 
The Labour Law for Managers Loose Leaf Service says you need to make sure you're not guilty of these two types of inconsistencies. It's seen as acting unfairly towards your employees:
 
  • Historical inconsistency – This is where you don't normally take action against employees for breaking a rule. But then take disciplinary action at a later stage without telling employees you're now going to enforce the rule.
 
  • Contemporaneous inconsistency. This is when you treat employees who've done the same offence at the same time, differently. It's also when you discipline two employees who did the same offence, but give them different penalties.
 
You must always be consistent when you dismiss your employees. And follow your disciplinary policy or code for disciplinary measures so you aren't caught acting unfairly.
 
Rule 4: Find out if the sanction is fitting
 
You must consider any aggravating and mitigating factors to decide on the appropriate sanction or punishment, after you've found Cathy guilty.
 
Rule 5: Find out if the rule applies outside of your workplace
 
Cathy's conduct outside of the workplace or working hours might still be relevant to your employment relationship.
 
But this doesn't mean you can take into account all conduct outside of the workplace. It must either affect, or be in some way relevant to your business, your reputation, relationships between employees. Or the relationship between you and your employees.
 
Our labour experts say it time and time again that 'dismissing an employee can be a costly exercise if you don't do it right.' So avoid costly CCMA cases by following these five rules when dismissing employees like Cathy.
 
PS: There's some much more you need to know about dismissal. That's why we recommend you check out Labour Law for Managers Loose Leaf Service for the full dismissal procedure.
 

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