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Always ask these five questions when disciplining or dismissing employees to ensure substantive fairness

by , 24 September 2015
When disciplining or dismissing employees, you need to ensure you maintain substantive fairness.

If you don't, the Commission for Conciliation, Mediation and Arbitration (CCMA)will see this as unfair .

So then, before disciplining or dismissing employees ask yourself the following five questions to make sure that your discipline or dismissal is substantively fair.

1. Is there a rule or standard overseeing conduct in or of relevance to the workplace?

In making sure the rule exists, you can look at the following documents:

·         Disciplinary code or code of conduct;
·         Employees' employment contracts;
·         Your policy or personnel manuals;
·         Any notices you may have put up;
·         Common-law principles of contracts; or
·         Certain legislation.
2. Did the employee break the rule or standard?

You can only do this by looking at the facts of each matter.

Present these facts to the chairperson of the hearing.

Keep in mind that you must prove these facts on a balance of probabilities.
3. Was the employee aware of the rule or standard?

You must be able to prove the employee was aware of the standard or rule broken.

Or, you must be able to show the rule is so obvious that he must've been aware of it.

A written disciplinary code is the best. But what if a rule isn't necessarily present in it? Click here to find out.


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…
4. Did you apply the rule or standard consistently?

You can easily be caught out for two types of inconsistency. They are:

·         Historical inconsistency: This is when, in the past, you didn't discipline for a previous action committed but later you did for the same offence. If you're going to start taking action for a particular offence when in the past you didn't, then you must give your employees appropriate notice so they're aware of it.

·         Contemporaneous inconsistency: This is where you treat certain employees  differently to others even when they commit the same offence.
5. Was dismissal the right sanction for breaking the rule or standard?

You can only do this by looking at the following issues:

·         Mitigating factors of the misconduct;
·         Aggravating circumstances;
·         The nature of the employee's job;
·         The employee's time of service;
·         The employee's status;  and
·         The employee's disciplinary record.

So, there are five very important questions to ask yourself when disciplining empployees.

Ensure that you answer them accordingly.

To learn more, subscribe to the Loose Leaf Service advertised below.

Protect yourself from labour-related problems by using this practical tool

The comprehensive Labour Law for Managers Loose Leaf Service gives you all the details you need for maximum protection in labour-related problems. You will find, for example:
  • Information on the problem areas managers have to handle in the workplace daily, and appropriate solutions;
  • Valuable advice for employers, based on the ever-changing legislation;
  • Sample contracts, dismissals and warning letters, etc;
  • Numerous practical checklists; and
  • Much more…

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