Fact: The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly
And if you didn't do it fairly, you could have to pay him up to 12 months' salary! Don't let this happen to you…
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Eight questions to help ensure your disciplinary hearing is fair
Have you notified the employee of the allegations made against him in the form of a letter? Have you written the letter in a language the employee can reasonably understand? And have you given him at least 48 hours' notice of the disciplinary hearing?
Are you holding the hearing before taking any disciplinary action, so as to give the employee a chance to challenge the evidence before making a final decision?
Have you ensured that the hearing takes place as soon as possible after the incident (preferably no later than 2 to 3 weeks after the incident)?
Have you advised your employee, in writing, of the exact charge you require him to answer, and is it well in advance of the hearing?
Keep reading to see what the other four questions are…
Eight questions to help ensure your disciplinary hearing is fair continued…
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Is the employee present at the hearing? But if proceed with the hearing without him, is there good reason (for example, he absconded)?
You should the employee to call up witnesses in his defence or in mitigation.
Is the Chairperson neutral?
To ensure he is, make sure that he:
· Is in no way involved in the incident that led to the hearing;
· Wasn't involved in the investigation of the matter;
· Hasn't been told about the matter;
· Hasn't had previous conflict with the accused;
· Has no reason to be biased against the accused;
· Has adequate skills that are required to chair a disciplinary hearing; and
· Is not a junior to the Complainant.
If he is biased during the hearing, the employee can challenge the fairness of the hearing, and so even though the law doesn't necessarily require a neutral Chairperson (for example, the owner can be both the complainant and the Chairperson), it's highly advised that you find one as it'll help protect you in case the employee does decide to challenge his impartiality during the hearing.
If he wishes, have you allowed the employee to have the assistance of a trade union representative or a fellow employee to represent him in the disciplinary proceedings? And if the Chairperson says it's alright, have you allowed him to have legal representation?
*If you can answer YES to all of those questions, then your disciplinary hearing will more than likely be considered fair in the eyes of the law.
To learn more on holding a fair disciplinary hearing, page over to Chapter D 01
in your Practical Guide to Human Resources Management
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