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Labour Complexity

Dealing With Employee Misconduct

Practical guidelines for effective and fair disciplinary enquiries.

Brigitte Macdonald

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Disciplinary-hearing

Effective and fair disciplinary enquiries have many significant and positive effects in the workplace. In addition to avoiding the obvious consequences of an unfair dismissal referral, and all the cost and time involved in the litigation of such a dispute, effective and fair disciplinary enquiries assist with the establishment of trust in management.

Employees feel secure that transgressions are dealt with fairly and as a result management decisions are given legitimacy. Ultimately, the relationship between managers and their subordinates is improved which can assist towards enhanced workplace productivity.

Enhance your organisation’s fairness

In light of the above mentioned benefits, below are a few practical guidelines to help enhance the fairness and effectiveness of your organisation’s disciplinary enquiries.

If your organisation is contemplating charging an employee with misconduct:

  • Ensure that, before any further steps are taken, a proper investigation into the alleged misconduct is undertaken. All the employees or individuals who were involved in, or witness to, the incident must be interviewed and their statements taken. In addition, all relevant evidence should be secured and gathered.
  • Once the investigation has been completed, decide on a strategy and whether or not a disciplinary enquiry is necessary in the circumstances. If, for example, during the investigation it is discovered that there isn’t sufficient evidence to find the employee guilty of the alleged misconduct, it may be more beneficial to wait until further evidence comes to light.
  • Ensure that disciplinary proceedings are appropriate in the circumstances. South African law requires that an employee is dismissed for a fair reason and in accordance with a fair procedure. A dismissal will not be considered fair unless it is justifiable and is related to either the employee’s misconduct or incapacity (due to an employee’s ill health or poor work performance) or the employer’s operational requirements.

If an employer wishes to dismiss an employee for one of these reasons, the law prescribes a specific and different procedure that needs to be followed for each type of dismissal. Thus, in order to ensure that the issue is dealt with appropriately and that the correct procedure is followed, it is important to determine whether the dismissal contemplated is due to the employee’s misconduct, incapacity or due the employer’s operational requirements.

Related: How to Legally Work With Labour Brokers

Disciplinary proceedings are only prescribed for acts of misconduct. Acts of misconduct and issues that emerge as a result of an employee’s incapacity or ability to perform their work adequately are often confused.

In order to make the distinction between acts of misconduct and acts arising out of an employee’s incapacity, consideration must be given to whether or not, when breaching the workplace rule or requirement, the employee is at fault or is to blame (i.e. was the employee negligent or did they intend to do something wrong).

If blame can be attributed to the employee, then disciplinary action is appropriate. However, if the employee is not to blame, it is likely that the issue needs to be dealt with as an issue of incapacity.

  • Determine whether or not it is necessary to suspend the employee, pending the outcome of the disciplinary enquiry. When making this decision, consider the nature and severity of the offence, whether the accused employee could tamper with evidence or interfere with witnesses, whether there is a threat to the safety of other employees or to the accused employee and/or whether the employee could repeat the offence before the hearing. Before suspending the employee, it is advisable to inform the employee that their possible suspension is being contemplated, and ask them if they would like to make any representations. Give the employee an opportunity to make their representations, consider their representations (if any), and then make a decision on their suspension.
  • It is very important to draft the appropriate disciplinary charge, based on the evidence that is available. If necessary get assistance in this respect, especially in cases of serious and/or complicated cases of alleged misconduct. It is crucial to charge an employee correctly as it is almost impossible to find an employee guilty of a charge that is not supported by the evidence lead at the enquiry.

During a disciplinary enquiry process

Staff-misconduct

  • Ensure that an impartial individual is tasked with chairing the hearing. The chairperson must not be someone who has been involved in the incident or someone who will be suspected of being impartial. In circumstances where it is difficult to find an impartial chairperson from inside an organisation, it may be worth considering appointing an external chairperson.
  • Ensure that a logical and sensible order of proceedings in followed during the enquiry and that both parties (the accused employee and the complainant) have an opportunity to make an opening statement, call witnesses, cross examine the other party’s witnesses and make closing statements.
  • If a finding of guilt is made, ensure that both parties are able to lead evidence and make arguments in mitigation and/or aggravation of sanction.
  • If the employee is dismissed the employee must be notified or his/her right to appeal the finding (if applicable) and/or his or her right to refer an unfair dismissal dispute to the CCMA or bargaining council, whichever is applicable.
  • The parties must be provided with a logical and well-reasoned written finding of the outcome of the hearing.

Related: How to Deal With Dismissals Due to Misconduct

Brigitte Macdonald admitted as an attorney in 2006, after completing her articles at Bowman Gilfillan. By 2008, Brigitte rose to the position of senior associate in Bowman Gilfillan’s employment law department. Brigitte left Bowman Gilfillan in 2010 to pursue her interest in alternative dispute resolution and a consulting career in employment law. Brigitte is a Centre for Effective Dispute Resolution (CEDR UK) accredited commercial mediator and also provides training through Caveat Legal on various aspects of employment law.

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Company Posts

Why HR Legislation Compliance Can Curb Business Failure

Don’t let your business reputation get dented due to non-compliance.

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HR Legislation Compliance

HR Legislation Compliance

Vital Stats

Millennium Support Services is designed to afford all business enterprises the opportunity to have Human Capital Management for their business.

“It is just unfortunate that non-compliance is exactly that “non-compliance” and most small businesses reputation gets dented or even fully destroyed, in the event that they are being accused of non-compliance by employees and statutory bodies” says Sharon Tshabalala CEO of MSS.

“Small businesses have no resources yet at the same time are not exempted from compliance. So, through the use of technology we are able to provide easily accessible HR services across the board.”

Related: Human Resources Management Demystified

Millennium Support Services provides businesses with exclusive distinctions of its service, so that you can ensure that your business remains compliant.

Human Resource Policies

human-resource-policies

The advantage it has over other online HRM systems is that it offers online access to Human Resource policies based on approved legislative framework.

1Independent Representation

In cases where disciplinary proceedings have to be under taken, an independent chairperson will be made available. When disputes have been escalated to the CCMA, a Labour Relations Expert will represent the employer.

2Disciplinary Policy

The primary purpose of discipline is to encourage employees to correct their conduct and/or discourage employees from breaching standards of conduct. Depending on the nature of the breach, there are five forms of disciplinary sanctions taken against employees – either formal or informal.

Namely: Verbal Warning, Written Warning, Final Written Warning, Suspension of Salary and finally Dismissal.

3Grievance Policy

The purpose of this policy is to give guidance and to provide a framework on how to raise and deal with grievances effectively at the earliest possible stage. There are three types of Grievance which have an informal/formal procedure.

Namely: Mild Grievance, Serious Grievance and Sensitive Grievance.

Related: Is Leveraging Your Resources Getting The Job Done Properly?

4Occupational Help Policy

The purpose of this policy is to establish minimum standards and requirements of occupational health and safety for the corporation in order to reduce the risk by:

  • Identifying hazards and possible risks causing incidents and accidents,
  • Setting standards of practice, procedures and accountability,
  • Measuring performance against standards, Evaluating compliance with standards,
  • Correcting deficiencies, deviations, and set standards of procedures to be followed,
  • Creating and maintaining a healthy and a safe work environment.

HR management is a specialist field, with many laws and regulations to navigate. If you don’t have a background in this field and can’t afford to hire a full-time HR specialist, consider outsourcing this function.

Millennium Support Services – Human Capital Management made easy.

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Company Posts

Will A Strike Cripple Your Business?

Strikes can cause a drop in productivity; ensure you have a staffing solution to see you through uncertain times.

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profit-loss

Strikes can cause a drop in productivity; ensure you have a staffing solution to see you through uncertain times.

South Africa’s economy has become very competitive and losing business to a competitor could be a serious blow. When employees strike, your business is likely to lose money due to delayed services and lost production time.

Businesses with advanced strike management policies and planning in place have a higher success rate in avoiding potential losses due to strikes. Workforce Staffing is a staffing partner that protects your Return on Human Investment during these challenging circumstances.    

Related: Finding Your Staffing Partner

Do you have a Strike Contingency Plan?

When 400 staff members unexpectedly decide to strike at dawn, you need a staffing partner that will arrange for capable and reliable staff members to take their place, that same day.

You will need:

  • A reputable staffing provider that knows how to liaise with authorities to establish a safe production environment for your staff.
  • Legal assistance in organising interdicts and disciplinary hearings, making sure you follow due process to shorten the strike period as much as possible.
  • Experienced hands in successful contingency planning and efficiency to keep your business productive even during industrial.

One of the biggest concerns for businesses is the amount of time and money that’s squandered due to absenteeism when employees strike.

Barend Matthee, Northern Cape Regional Director for Workforce Staffing, explains that using contract workers for a project will allow for cost-savings as workers will only be paid for the duration of the project. The principle of “no work, no pay” will apply.

“Optimisation of contract workers through Workforce Staffing’s understanding of various on-boarding processes, including medicals, inductions, etc., allow for quick turnaround times on replacement staff, as well as the opportunity for contract workers to be circulated to various other clients or tasks,” notes Matthee.

Related:Organisational Behaviour Expert Siphiwe Moyo’s Insights Into Keeping Your Employee’s Motivated

This holistic approach allows for good time- and resource management on projects.

Outsourcing staff also provides you with a temporary workforce that has the required skills and experience to meet your company’s changing needs.

An expert staffing provider will ensure that your projects are fully-staffed and up-and-running within a short space of time, saving both time and money. 

Workforce Staffing calms the storm with its: 

  • Critical experience in striking situations
  • Solid infrastructure and resources, mitigating your risk
  • Legal consultation on processes and services
  • Logistics management like transport, labour, compliance, worker induction and contingency sites
  • Provision of ongoing labour to maintain your service levels
  • Facilitation of continuous communication between all stakeholders

Workforce Staffing has the experience and infrastructure to mitigate your risk:

  • Receive Support from its NATIONAL BRANCH NETWORK
  • Enjoy HR AND IR INDUSTRY SPECIALISTS expertise
  • Receive a CONTINGENCY WORKFORCE quickly and effectively

Contact them today to retain maximum productivity. 

087 135 8888  |  info@workforce.co.za  |  www.workforcestaffing.co.za

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Labour Complexity

Cover All Your Bases When It Comes To Employment Agreements

Employment agreements are amongst the most important agreements a company will ever enter into.

Kyle Torrington

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employment-agreements-covered

There are two pieces of legislation that employers of large labour forces need to be familiar with, and which set out the basic entitlements of employees: The Basic Conditions of Employment Act (the BCEA) and the Labour Relations Act.

Most considerations listed below are regulated by these two Acts, particularly the BCEA.

Let’s explore five of the most important considerations when it comes to employment agreements.

1Confidentiality & restraint of trade

Protecting the confidential information of your business is extremely important and you should secure customised provisions relevant to your business and industry to ensure that you are appropriately protected.

To protect confidential information and unlawful competition, include a confidentiality and restraint of trade clause in an employment agreement.

This seeks to prevent employees from using your confidential information for their own gain, or prevent them from working with certain of your customers, or in a competitive field of trade for a certain period and within a defined geographic area, after the employee leaves your company.

Related: What The Law Says About Employee Leave And Absence

employee-terminating-contract

2Termination of employment

The BCEA sets out the following:

  • If an employee is employed for four weeks or less, at least one weeks’ notice of resignation is required
  • If an employee is employed for more than four weeks but less than one year, at least two weeks’ notice of resignation is required
  • If an employee is employed for one year or more, at least four weeks’ notice of resignation is required.

For employees whose position in the company is crucial to its success, or requires a lot of expertise to fulfil, employment agreements may allow for three months’ notice.

3Employee duties & responsibilities

This is real nuts and bolts stuff, and differs vastly from employee to employee — why did you employ this person? What do you expect them to do daily, monthly and annually?

These duties and responsibilities need to be recorded in an employment agreement so that both the employer and employee understand exactly what is expected of them and there is an agreed upon foundation for the relationship between the employee, the company and its structures.

4Hours of work per week

The BCEA prescribes a maximum of 45 working hours per week for normal time work. Where an employee meets certain exemptions, this will not apply, and must be negotiated with the employee and included in the agreement.

The BCEA has set the maximum allowed overtime at ten hours weekly. Employees are generally entitled to meal and tea breaks, but these are not included in the 45 hour work week, and are generally unpaid. 

Related: Apply for Leave – From Your Smartphone

employee-leave

5Leave

Annual leave

The annual leave granted to an employee may not be less than 21 consecutive days for full-time workers, or by agreement, one day for every 17 days worked, or one hour for every 17 hours worked.

Annual leave must be granted not later than six months after completion of twelve months of employment, and must be on full pay.

Sick leave

During every sick leave cycle of 36 months, an employee is entitled to an amount of paid sick leave equal to the number of days he or she would normally work during a six week period. For example, should an employee work five days per week, they will be entitled to 30 days’ sick leave over a three year period, or ten days per year.

During the first six months of employment, however, an employee is entitled to a single day’s paid sick leave for every 26 days worked.

Maternity leave

A female employee is entitled to at least four consecutive months’ maternity leave.

The maternity leave commences four weeks before the expected birth, or when a medical practitioner certifies it as being necessary for the health of the employee or unborn baby. An employee is not allowed to work for at least six weeks after the birth, unless a medical practitioner certifies that she is fit to do so.

Protect your business and employees

Properly drafted employment agreements that protect your business and its assets are crucial in preventing costly litigation and CCMA hearings.

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