Here's a scenario:
Angelo has been called to a disciplinary hearing because he assaulted a fellow employee. During the hearing, the Chairperson refuses to listen to his side of the story, for the simple reason that the evidence is overwhelmingly against him. All in all, Angelo is fired, after which he refers the case to the CCMA. In the CCMA, the Arbitrator agrees that Angelo is definitely guilty of assault, but to the employer's surprise he makes him pay Angelo 12 months' salary!
How can this be? Well, keep reading to find out...
The key to avoid an unfair dismissal is...
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Everything you need to know about substantively and procedurally fair disciplinary hearings
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
But not you! Here's why…
While Angelo was most certainly guilty, as the evidence clearly weighed against him, the Chairperson of the disciplinary hearing didn't follow procedure correctly.
You see, even though an employee may be clearly guilty in the eyes of the law, the procedure with which you should deal with the offence is equally as important.
What this all means is that you need to show procedural fairness
when conducting a disciplinary hearing. And part of doing that is to give an accused employee the chance to state his side of the story when allegations have been made against him. In other words, you need to allow him to answer to the charges laid against him.
Failure to do this will lead to the entire disciplinary hearing, including the dismissal, being deemed procedurally unfair
, and you could very well end up paying an employee, who no longer works for you, up to 12 months' salary!
Remember that even if the employee is guilty, and you have all the evidence to prove it, your dismissal will still be deemed unfair if you don't give the accused employee a chance to answer to the charges.
*To learn more on how to ensure a procedurally fair disciplinary hearing, and in so doing avoid an unfair dismissal, simply page over to Chapter D 01: Disciplinary hearings
, in your Labour Law for Mangers
Alternatively, click here
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