CASE: Vereeniging Refractories vs NETU obo Botes (1998 3 BALR 377)
What were the facts of the case?
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…
In this case, an employee was dismissed for assaulting a labourer.
The employee, who was a supervisor, stated that when he asked the labourer where he'd been, he lashed out by cursing, hitting and kicking the supervisor.
In explaining further what happened, the supervisor said that the labourer proceeded by taking out a knife, after which the supervisor reacted in self-defence.
What was decided?
The Arbitrator was very uncertain as to what exactly happened, but noted that the supervisor's version of the incident was plausible.
The Arbitrator further noted that it was the employer's duty to prove that the employee, in this case the supervisor, was in fact guilty. In other words, the employer had to prove that the supervisor did NOT act in self-defence and plain-old assaulted the labourer.
The employer was unable to do so, which resulted in the dismissal being deemed unfair, and the supervisor being subsequently reinstated.
What can you learn from this case?
1. Assault does not necessarily amount to a dismissal.
2. It is the employer's responsibility to prove that the employee being alleged of assault is guilty. That's why you should carry out a thorough investigation into the incident and gather as much evidence as possible to effectively present your case. In other words, be objective, and don't put emotion into it.
3. Self-defence is a legitimate mitigating factor which could lead to a dismissal being deemed unfair.