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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

Temporary Employment Service Providers Underpin IPP Economic Development Goals

Preference will be given to Independent Power Producer projects valued at R56 billion that possess a plant technology and location that contributes to local economic development.

Workforce Staffing

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“Independent Power Producer (IPP) projects will provide 61 600 full-time jobs,” stated Energy Minister, Jeff Radebe, while announcing the plan for 27 new renewable energy plant projects to be rolled out under the IPP programme.

This is an excellent and beneficial initiative. However, the fact that many of the skills will be required only on a temporary or project basis during the construction and setting up of each facility, may pose a challenge for IPPs looking to get started.

Skills sourcing

Sean Momberg, Managing Director of Workforce Staffing, says that IPP projects stand to benefit from consulting experienced Temporary Employment Service (TES) providers. “IPP projects require a significant investment in human capital, which becomes more complex and time-consuming by having to source local staff,” he explains.

Related: Temporary Employment Providers — Friend or Foe?

“Once the main contractor is appointed, they are responsible for sourcing skilled staff and suppliers for the duration of the construction and commissioning phases. A TES provider can significantly reduce the workload, by managing all human resources and industrial relations for them.”

Building an alternative power plant is a lengthy process. The 27 projects mentioned have spent approximately two years in this sign-off period and, now that they have been approved, IPPs need to work quickly to get the ball rolling. From civil work and environmental impact assessments, to mechanical, engineering, electrical and physical site building — each project requires a varied and vast number of skills.

Running interference

“TES providers go beyond providing temporary and project-based staff,” says Tebogo Moalusi, National IR Director at Workforce Staffing. With unions such as NUMSA protesting against IPP projects, even though job losses due to coal mine closures were unrelated to the introduction of IPPs, TES providers’ expertise in managing union relationships can prove a valuable aid to IPPs.

“IPP projects commonly face hinderances like demarcation disputes,” adds Tebogo. “A reputable TES provider understands local economic development as well as relationship management and works with both local employment providers, the community and unions to mitigate concerns.”

IPP projects often involve investment from international players and communication between international and local parties. Sean says that TES providers assist in breaking down these communication barriers, focusing on the importance of local job creation, while ensuring that international standards are maintained.

 “TES providers assess local catchment areas keeping fair processes in mind. This takes procurement into account, and sourcing of local equipment, accommodation, transport and catering is all considered,” he says.

Frequently with international parties, payment terms are set at 90 days from invoice. Sean stresses that this is not sustainable in local environments, where suppliers and staff don’t have the financial capacity to work within those terms. A reputable TES provider has the financial capacity to ensure that payment demands are met weekly or monthly, based on local requirements.

Related: Does A Strike Hit The Heart Of Your Business?

A focused approach

“A TES provider’s focus remains employment. Although the IPP’s goal is to complete their project on time and within budget, TES providers have the experience and knowledge to provide employment and procurement solutions that underpin the IPP’s objectives, ensuring a smooth and hassle-free project roll out,” Sean concludes. n

Temporary Employment Services’ part in minimising IPP job losses

  1. Onsite training and skills courses upskill temporary project workers.
  2. Skills transfer helps ensure future employability.
  3. Entrepreneurial skills development fostered for post-project maintenance contract work.

Workers obtain marketable skills they can add to their CV.

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Company Posts

Is Your Critical Illness Cover Keeping Up With The Times?

Critical illness cover was originally the brainchild of a forward-thinking surgeon who noticed more and more patients were struggling to make ends meet after recovering from life-threatening conditions.

BrightRock

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Critical illness cover was originally the brainchild of a forward-thinking surgeon who noticed more and more patients were struggling to make ends meet after recovering from life-threatening conditions. This increase was driven by medical advances, which drove a spike in survival rates – and its consequential recovery costs – something that old school insurance policies did not factor into their products. And while we all know the medical field continues to move forward through innovation, it’s important to ask yourself: has your cover kept up?

Medical advances during the 1960s and 70s didn’t just lead to an increase in patients’ life expectancies, but it also led to financial difficulties for many survivors of critical illnesses and –injuries. Many of these patients were faced with rehabilitation costs and additional expenses caused by lifestyle and/or professional adjustments they had to make to stay on the road to recovery, and they struggled to make ends meet.

Dr Marius Barnard, brother of the famous Dr Christiaan Barnard and respected surgeon in his own right, identified an opportunity to provide these patients with risk cover for these needs. He partnered with a life insurer in 1983, and critical illness cover was born.

Initially covering only four major conditions, medical advances soon enabled the expansion of critical illness cover to many more conditions, like Alzheimer’s or Parkinson’s disease, paraplegia, major burns and brain damage. Lifestyle factors such as smoking, obesity and lack of exercise have increased the likelihood of critical illness claims, but the claims are becoming less severe, thanks to improved medical techniques for the treatment and detection of life-threatening conditions.

Related: How BrightRock Is Rocking The (Industry) Boat In Only 5 Years Since Launch

Where does critical illness fit into your financial plan?

While medical and, possibly, gap cover can make provision for medical expenses, critical illness cover is instrumental in covering any gaps and providing for lifestyle changes that result from conditions like paraplegia, like the expenses involving alterations to a home to be wheelchair-friendly.

Many medical aid schemes may also exclude certain treatments or not cover them in full, or you might have reached your annual limit. In these instances, critical illness cover may just come to the rescue.

Considering all the scenarios where critical illness products have the potential to come into play, it’s important to ask yourself how forward-thinking the insurance you signed up for really is. Does your insurer factor in the latest treatments, and have they adjusted the range of conditions they provide cover for to keep up with the latest medical research and survival rates?

How many conditions are covered?

Start by obtaining the list of conditions covered by your critical illness policy, because the number of conditions covered vary from company to company. There are life insurance providers that provide cover for over 300 conditions, while some assurers cover fewer than 100 conditions. Some life cover providers also take into account the treatment, clinical impact and effect of an illness, which ensures protection for as yet undiagnosed conditions – this is the kind of cover you should be signing up for.

How do the pay-outs work?

You should also consider the pay-out structure and/or –options of your critical illness policy. There are policies with pay-out options that are helpful for conditions that involve large expenses initially, followed by smaller amounts over a number of months. Importantly, you should be allowed to make certain choices about how your cover should pay out at claim stage, when you know what your physical and financial needs are.

What about smaller events, like accidents?

Forward thinking life cover providers have also identified a need for financial protection in instances where you might have less critical, but still traumatic illnesses or injuries and spent little or no time in hospital.

Related: BrightRock’s 5 Entrepreneurial Tips For Start-ups

Just think about the myriad of costs involving corrective procedures, medical aid co-pays, hospital costs, rehabilitation, assistive devices, physiotherapy, wound care, nursing and surgery costs – not to mention being unable to earn an income while you recover from a serious illness or injury. Many of these expenses might be typically incurred just because you aren’t fully covered by medical aid schemes and gap cover products.

Innovations like cover that precisely matches your needs are done in the same spirit of innovation and matching the needs of patients as we saw with Dr Marius Barnard. So before signing up for, or selling your next critical illness policy, ask yourself: Does my cover provider do the same?

  • Schalk Malan is the CEO of BrightRock, provider of the first ever needs-matched life insurance that changes as your life changes.

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Keys To Simplify Payroll Compliance

Human resources departments across the country cite compliance as one of the top challenges they face. As an SME owner, it’s up to you to ensure that your company’s personnel business practices adhere to the current laws.

Sage

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Keeping accurate records to document your company’s compliance is just the beginning, says Ania Strydom, Compliance Specialist at Sage. 

1. Why is payroll compliance so important?

Payroll is the biggest expense for most employers. Employers must comply with all labour and tax laws that govern the payroll to avoid financial and legal risks and to protect the employees and the business. The risks of getting it wrong include:

  • Censure
  • Interest or fines by authorities
  • Imprisonment in cases of fraud or extreme negligence.

Payroll fraud is one of the most common white-collar crimes in the business world; what’s more, inaccurate payments and non-compliance can cost a business dearly.

Related: How To Get The Most From Your Payroll Solution With The Sage Academy

2. What are the implications for staff if a company is non-compliant?

non-compliant-companyThe payroll is one of the most crucial links in the employee-employer relationship. Late or inaccurate wage and salary payments, or inaccurate calculations of other earnings (such as overtime), deductions (such as PAYE and UIF), and contributions (such as retirement fund or UIF contributions) can be extremely damaging to the morale of the workforce.

By law, every employee is entitled to a payslip and tax certificate (IRP5/IT3(a)). Employees need payslips for purposes such as applying for personal or home loans. Accurate and easy to understand payslips will boost employee satisfaction and trust in the company, with a positive impact on business performance.

What’s more, employers must make sure UIF contributions are correct so that employees get the full amount they are entitled to if they need to claim.

3. How will the company’s growth prospects be affected if the company is non-compliant?

While an efficient payroll system enhances staff morale and boosts an organisation’s reputation, mistakes in record-keeping and compliance can result in punitive penalties and hurt the company’s brand. Compliance mistakes with payroll can be expensive and potentially catastrophic which subsequently results in business risks.

Related: How Do I Go About Valuing My Business?

4. How can a business ensure it is payroll compliant?

South African tax regulations and labour laws are and continue to be more complex. Keeping track of all the payroll legislative requirements can be challenging, but the risks of non-compliance are high and businesses can no longer rely on spreadsheets and other manual methods to do their calculations, report and file returns.

Automated solutions are becoming more essential for keeping reliable records, reporting and performing accurate payroll calculations.

The package you choose should:

  • Be tailored for the local tax law, labour law and regulatory environment
  • Manage all the complex calculations and regulatory reporting the business must do timeously
  • Feature automated updates to ensure the company always processes on the latest software and legislative version.

This will ensure it avoids censure, fines, penalties, interest and/or imprisonment as a result of non-compliance.

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