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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.

Labour Complexity

Charity Begins At Home This Festive Season

3 Ways to invest in your own employees.

Nation Builder

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_festive-season

We often only think of corporate social investment (CSI) as an organisation’s actions in the surrounding communities (philanthropy and volunteering), but CSI is also inward facing. By promoting employee well-being, your business can be a vehicle for change, not only in the society around it, but also directly in the lives of those working there.

Here are some ways you can invest in your own employees during the festive season:

1. Involve your employees in a higher purpose

This might sound like a bit of circular reasoning, but studies have shown that involving employees in CSI activities has several benefits. People involved in meaningful activities tend to be more motivated and willing to go that extra mile because of the higher good associated with the work. CSI programmes also:

  • Increase co-operative behaviour and employee relationships
  • Enhance the sense of company identity
  • Improve employee retention and commitment
  • Create an attractive company culture.

Related: What’s The Fuss About Corporate Social Investments?

2. Provide the space for physical and mental breaks

The end-of-year and festive period is often a very stressful period. Balancing festive and family duties with increased pressure at work due to colleagues taking leave, looming year-end targets and planning for the next year can take a toll.

You, as the employer, can ease this stress by ensuring that there are systems in place that define holiday working policies. Promote time and productivity management to plan workflows and keep the momentum going in these last weeks of the year. Also make sure you have effective communication strategies in place for plans that are in the pipeline for the new year, so that employees can get their heads around upcoming changes. This will allow employees to plan ahead and build in time to switch off, knowing that all of the boxes have been ticked.

3. Constructive feedback/motivation

Also, take the time to acknowledge and show appreciation for the hard work that your staff has put in throughout the year. As the saying goes “valued employees are valuable employees.”

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Company Posts

How Medical Savings Accounts Are Changing – For The Better

By Jeremy Yatt, Principal Officer of Fedhealth

Fedhealth

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medical-savings-accounts

The concept of medical savings accounts (MSA) emerged in the industry in the early 1990s, reputedly when Discovery founder Adrian Gore was working at Liberty. At that time medical scheme benefits for different kinds of day-to-day healthcare were specified, so for example, you’d get a certain amount of Rands to spend on your over-the-counter medicine, or for optometry services. But this was problematic, as people’s daily medical needs are all so different. So, you’d have medical aid members calling their medical schemes saying, “I haven’t used my spectacle limit this year, so can I transfer it to use on medication instead?”.

The idea for MSAs was to pool these separate benefits into a total Rand amount, that you could then spend how you wanted, and more importantly, retain if you didn’t use them all. Initially, medical schemes were reluctant to follow this idea, as they thought it would lead to under-servicing: medical aid members might be unwilling to spend their savings, and so might not get the proper day-to-day medical attention until it became a crisis and they were hospitalised. However this was not the case, and MSAs proved very popular.

At first, there was no real limit on how much of your contributions as a member could go into your MSA, so most schemes allocated around 40-50%. Many schemes also pushed major medical procedures like MRI scans into savings, which was effectively a way of forcing members to self-fund these costly medical expenses. As a result, the Medical Schemes Act was amended in 1998 to impose a 25% limit on the benefits that could be put into MSAs, which largely forced the schemes to be responsible for these major costs.

Related: Why Your Employees’ Health Is Your SME’s Wealth

Under the previous structure there was no disincentive not to use your benefits, particularly as they didn’t roll over from year to year like Medical Savings do. It was therefore not uncommon for a call centre to get queries from members asking how much was available in their different benefit areas, so that they could make sure they used them all up.

MSAs solved these sorts of problems by giving medical aid members increased convenience and autonomy, which is why schemes have been using them for the past 20+ years.

The concept of an MSA isn’t far removed from a loan. Like a loan, an MSA lets you use a sum of money when you want to, but you still have to pay for it regardless of whether you use it or not. It forms part of the registered gross contribution to the medical scheme. Take the example of a member who has R12 000 they can access in their MSA each year. Effectively they are paying for this “loan”, contributing R1000 a month, starting in January. However an MSA means they can use all of that R12 000 upfront, such as if they need expensive dental treatment (crowns etc.) at the start of February that costs R12 000.

In this situation, the member has only paid for R1000 worth of that R12 000 “loan” (with their January contribution), so they effectively “owe” the medical scheme R11 000, which they then pay off over the remainder of the year. If the member left the scheme straight after their dental work, the scheme would then contact the member to repay the R11 000, as they still owe that amount.

Related: Is There A Link Between Physical And Financial Wellness?

The concept of giving members access to medical financing led us to develop our new MediVault offering for day-to-day medical expenses. Describing it as a loan holds negative connotations for some, but it’s not that different from the concept of an MSA: in fact, we see the MediVault as a natural evolution. All it means is that you won’t need to pay for day-to-day savings upfront. Instead, you’ll be allocated money for these everyday medical expenses in your personal MediVault and, once you’ve taken the money out, you only have to pay it back over a period of 12 months – completely interest-free. This is a far better option than taking out an expensive loan from a traditional loan company, or getting it from an unscrupulous loan shark.

Our MediVault offering is not at all about loaning funds to people irresponsibly. We’re not creating a monster that’s going to indebt you – we’re just changing the way you can access funds for your healthcare. After all, health is everyone’s most worthwhile investment, and we want to give people the flexibility to make it their top priority.

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Labour Complexity

Year-End Reviews Are Not Always A Positive Experience

This is largely due to parties entering into it without proper preparations, thinking that it can be done in one meeting.

Adri Dörnbrack

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year-end-review

Performance reviews are similar to entering a race. It’s all about race day, but what you put in before the event (the discipline to wake up and train, the commitment to push yourself and stick to your training plan) is what makes race day either a great positive journey or a terrible experience. The same principle applies to performance reviews. It should not be a once-a-year meeting. It should be part of the monthly job description for both the manager and employee to be able to compare, adjust and review on an ongoing basis. Then, once a year, all the insights gathered during the year should be reviewed to plan for the next year. 

Performance excellence reviews contribute to the culture of a company

We always say that attitude determines outputs or achievements. Personal attitudes, and the character of the business, is the culture. A great culture will lead to great achievements.

Performance excellence reviews are the tool we use to compare, adjust and shape what we want to achieve and then benchmark to know if it has been achieved. 

Employee performance reveals a lot about the business’ achievements. A business is great when it is profitable, cares about and looks after their people, and contributes towards the wellbeing of society and/or the planet. It is all about performance. What you put in is what you get out. And this is what we need to understand. 

Related: How to Set Up Employee Assessments

Performance excellence reviews can be a positive experience

Know the individual and their needs. There are really no one size fits all generic option.

There are however a few general good practices :

  • Managers should firstly understand the value that performance excellence reviews contribute towards overall achievements.
  • When the manager is positive about the reviews and the value it adds, automatically the employees follow.
  • On a monthly basis, review the employee’s feedback relating to the progress of the functions / tasks.
  • Be understanding as a manager – not all functions might haven been able to be completed due to job changes or the complexity of a growing job function.
  • As employee, understand that a manager is employed to manage the performance of the team, the department and the business. This entails understanding the employees’ performance.
  • New employees need to be reviewed more frequently eg. Bi weekly. When the employee has found their feet, review monthly or bi monthly.
  • Do not review performance once a year only. Review frequently, and once a year have a focused meeting around performance to discuss what was achieved during the last 12 months.
  • Managers should be responsible, and held accountable, to get all staff to complete their reviews (monthly, quarterly etc). It is the managers responsibility and it should be one of their functions.
  • Employees should know that performance reviews are simply there to understand the job, and help to align the job and the person’s talents to get the best outputs. It’s about continuously striving towards efficiency and effectiveness.
  • As a manager: Communicate progress feedback and offer assistance.
  • Be consistent. Review frequently.
  • Celebrate achievements.

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