When taking disciplinary steps against an employee it is important to note that all disciplinary steps stand on two legs namely fair process and fair reasons.

An employer may have all the reasons in the world to take action against and even dismiss an employee but if the procedure was unfair or flawed the dismissal can be overturned or an employee may succeed against an employer in the CCMA for an award for unfair dismissal.

This is a discussion of fair procedure :

There are no strict prescriptions of what constitutes fair procedure but procedure should be deemed fair if the employer, prior to taking any disciplinary action against the employee, lodges an investigation to determine whether there are grounds for disciplinary steps. Investigations can vary from something as simple as observing an employee to something as complicated as a forensic audit.

After the investigation the employee should be handed a notice of suspension as well as a notice to attend a disciplinary hearing. The notice to attend a disciplinary hearing must be in a clear language and must state a date, a time and a place where the hearing will be held, sufficient details of the charges against the employee should be given to enable the employee to understand fully and clearly all charges levied against him and to afford him or her the opportunity to properly prepare for his or her hearing.

The employee must be awarded sufficient time to prepare for the hearing. Sufficient time will vary depending on the nature and complexity of the charges but should not be less than 2 (two) to 3 (three) days. The notice should further state that the employee is entitled to be assisted by a trade union representative or a fellow employee.

The disciplinary enquiry should be chaired by a person who can objectively make a ruling and where relevant this person should preferably be independent.

At the hearing the charges must be put to the employee, and evidence should be lead regarding all the charges. The employee should then be given the opportunity to cross examine the witnesses of the employer and to call his own witnesses to testify.

The hearing should be minuted in detail and the finding of the chairperson should be communicated to the employee in writing after the hearing.

Should the employee be found guilty he can be given a warning, a final warning or be dismissed depending on the degree of seriousness of the offence.

HS Clarkson

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