Dealing With Employee Misconduct

Dealing With Employee Misconduct

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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

 

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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
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.