Eskom has been in the news recently due to the parastatal’s ongoing investigation into 239 cases of staff misconduct. This raises the question of how employers should go about addressing staff misconduct. Many employers have found themselves at the losing end of CCMA or other disputes due to the incorrect processes being followed when dismissing an employee.
If an employer suspects an employee of serious misconduct, then an investigation may need to be conducted before starting the disciplinary process. The Code of Good Practice: Dismissal, Schedule 8 of the Labour Relations Act No. 66 of 1995 recommends that an investigation take place if there are grounds for misconduct that may warrant dismissal.
Some employees may be suspended or may take “special leave” during the investigation period (and pending the outcome of a disciplinary hearing). Conditional suspension is often to protect information and the integrity of the investigation e.g.: the employee is not allowed to contact other employees or access the company premises or servers. Suspensions must be based on substantive reason/s and must follow fair procedure. During the suspension period, the employee usually receives full pay. “Special leave” (not part of the employee’s annual leave and taken on full pay) is taken when the alleged misconduct involves an executive member of staff and the employer has to consider the media and public attention repercussions. “Special leave” is also used when a negotiated settlement or mutual separation agreement is an option.
An investigation looks into whether or not there is factual evidence to support disciplinary proceedings. For this reason, investigations act as a caveat against unnecessary disciplinary action where not enough factual evidence exists to show that, on a balance of probabilities, the employee committed the allegations of misconduct.
The evidence obtained during the investigation will be used in any subsequent disciplinary proceedings, the CCMA and the Labour Court. In order to document the investigation, a report should be put together documenting all of the evidence so that the employer’s disciplinary committee can then decide whether to proceed with hearing/s or not.
Investigations may lead to an employee’s resignation. This does not always mean that the investigation is over, however. There are duties imposed in various industries where employers may be required to continue an investigation even though the employee has resigned e.g.: banks. This is due to the fact that the alleged misconduct could have far-reaching effects.
If your company wants to charge an employee with misconduct:
- Ensure that there is a proper investigation;
- After the investigation, based on the evidence uncovered, decide whether or not a disciplinary enquiry is necessary and appropriate;
- If you choose to go ahead with a disciplinary enquiry, ensure that an impartial person is appointed to chair the hearing;
- During the enquiry, ensure that both parties have an opportunity to make opening statements, call witnesses, cross-examine witnesses and make closing statements;
- If the employee is found to be guilty, ensure that both parties are given the opportunity to lead evidence and make arguments in mitigation or aggravation of sanction; and
- If the employee is dismissed, the employee should be given the reason for dismissal and reminded of his/her right (if applicable) to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
A dismissal will be unfair if it is not effected for a fair reason and in accordance with a fair procedure (requirements of section 188 of the Labour Relations Act). Generally speaking, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is so serious that it makes continued employment intolerable for both parties (destroys, beyond repair, the trust relationship) e.g.: gross dishonesty, wilful damage to the property of the employer, gross insubordination, wilful endangerment of others and physical assault on the employer / a fellow employee/ a client / a customer.
According to the Codes of Good Practice, when deciding whether or not to impose the penalty of dismissal, the employer should, in addition to the gravity of the misconduct, consider factors including:
- The employee’s length of service;
- The employee’s previous disciplinary record;
- The employee’s personal circumstances,
- The nature of the job; and
- The circumstances of the infringement itself.
For more information on the above, please contact:
+27 21 406 9295