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Four secret weapons to draft allegations, so you can fire an employee legally!

by , 12 August 2016
Four secret weapons to draft allegations, so you can fire an employee legally!You fired Craig last month for forging a false proof of purchase and stealing. Now he's taken you to the CCMA.

You followed the right steps; both substantively and procedurally. You even had a labour lawyer check your documents. But you did this one thing wrong and now you could lose your case.

You didn't draft the allegations against him on his 'Notice to Attend the Disciplinary Hearing' properly. So everything you did after that was wrong.

Avoid this from happening to you again by using our four easy tips when drafting the allegation...

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Use this checklist when you hold your next disciplinary hearing
-          Inform your employee of the allegations against him in writing. The allegations should be clearly set out, identifying exactly what he allegedly did wrong.
-          Give your employee reasonable time to prepare for the hearing, which will depend on the nature and complexity of the allegations.
Found out how you can get all the sample forms and contracts you need for a disciplinary hearing here...

Four secret weapons to draft allegations
  1. Describe what he did, when, where and how as if you're telling a story. This must be comprehensive and clear he can't say he didn't have enough detail to prepare a defence.
For example:
'It's alleged that on 22 December 2015 you forged a proof of payment for a side table you took from the warehouse. This allowed you to remove the side table from the company on the basis that you had paid for it when this wasn't the case. You had no authority to remove the property.  You were trying to remove it without paying for it, which amounts to dishonesty as you allegedly did not obtain the necessary authorisation to remove the company's property.' 
  1. Use plain language the employee can understand.
  1. Describe clearly what you allege the employee has done wrong. Don't give legal definitions, or the exact terms of your disciplinary code and procedure. See the example above – describe what he did in detail, don't just call it dishonesty.
  1. After you've done all this, refer to your disciplinary code to decide what to call the transgression.
For example, you're not sure if Craig's actions are dishonest. Do you have enough evidence to prove he took the item? Start the description of the misconduct in the disciplinary hearing notice with a factual description of what he allegedly did. Follow this with the words:

 'It's alleged that in doing this you were dishonest by removing company property without obtaining prior authorisation from your line manager'.
Let's look at a case showing why you have to make sure your allegations are 100%...
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Case law: Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC)
The Chairperson found a senior employee guilty of fraud in disciplinary proceedings. But that wasn't the allegation on the Notice to Attend the Disciplinary Hearing. It was for unauthorised use of the company's credit card for personal expenses. The Court criticised the Chairperson for finding her guilty of fraud when that wasn't the charge.
But, the Court said the employee's conduct was unethical. And so, warranted dismissal, because she was aware of the accusations against her. Even though the legal classification of the offence was wrong.  
The employer was lucky to get away with this, because he didn't word the allegations accurately.
So while you can claim dishonesty against Craig, you can correctly describe his act as:
-          A breach of trust;
-          Gross dishonesty;
-          Failing to act in the company's best interest;
-          Failing to follow company procedures;
-          And self-enrichment.
But this is still one disciplinary offence. It isn't more or less serious because it can fall in different categories. You just have to make sure you detail the allegations correctly.
Need to know how to carry out procedurally and substantively fair dismissals? Click here for everything you need to know…
P.S. Never worry about the CCMA again! Today I'll show you how to fire him – legally so you'll never have to worry about the CCMA again.  Click here to discover more

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