Employers must follow correct procedures when taking action against an employee for alleged misconduct. Karen Ainslie, director at Deneys Reitz’s labour division, offers some practical advice on the best way to manage staff dismissals.
Why do I need a disciplinary policy?
A disciplinary policy makes the disciplinary process that much simpler and gives you a set of standards to adhere to.
It need not be a complicated affair. The policy may list some of the most serious or common offences and state the recommended sanction. It’s not advisable to include an exhaustive list of all offences: not only is it impossible to do so, but the policy will not be flexible enough to provide for unforeseen circumstances.
The code of good practice, which employers are advised to consult when drafting their policy, endorses progressive discipline. Workers should generally not be dismissed for a first offence unless the misconduct is very serious, if the risk of keeping the worker in the company’s employ is too high or if the misconduct makes a continued employment relationship intolerable.
Examples are physical assault at the workplace, gross dishonesty or misappropriation of company property. Make it clear that the policy is a guideline only and that each case will be judged on its own merits to avoid a situation where you are unable to dismiss an employee for serious misconduct as a first offence. Note that poor performance is not bad behaviour and must be remedied through training, counselling and skills development – it should not be included as an offence for which employees can be disciplined.
What is the correct procedure for dismissing an employee?
A dismissal must be conducted in a substantively and procedurally fair manner. To be substantively fair, you must ensure you have sufficient evidence to charge the employee and prove their guilt.
Procedurally, you are entitled to suspend employees if it is difficult to conduct a proper investigation with them onsite, or if their presence poses any risk. They must be suspended with full pay and no loss of benefits.
You must formally charge employees in writing and give them notice to attend a disciplinary hearing. Apply the same terminology used in your disciplinary policy as far as possible and steer clear of criminal terms such as “theft” and “fraud” which are difficult to prove – rather just describe what the employee did.
Give the employee a reasonable amount of time to prepare for the hearing. Generally, three days is sufficient.
Be sure to notify the employee of their rights: they are entitled to an interpreter, to bring witnesses to the hearing, to cross-examine the employer’s witnesses, and to be represented by a colleague or union official. Employees are also entitled to receive reasons for the chairperson’s finding to dismiss.
Who attends the hearing?
- An independent chairperson who has no prior knowledge of the incident/investigation. In a small company it is sufficient to have a chairperson who has not been involved in the inquiry. If that is not possible, it is best to bring in an outsider to avoid accusations of bias later on
- The initiator or the complainant who will state the company’s case. Unless the disciplinary policy states otherwise, the complainant is usually an HR officer or the direct supervisor who has in-depth knowledge of the incident
- The employee
- The employee’s representative
How is the hearing structured?
- There are no hard and fast rules unless the process is set out in the disciplinary policy, but the more structured the hearing is, the easier it will be to defend the outcome.
- Here is a typical structure:
- The company begins by presenting evidence, handing over documents and leading witnesses. Witnesses should be sworn in
- After every witness has testified, the employee is given the opportunity
to cross-examine the witness
- The employee leads their own witnesses and the company is given the opportunity to cross-examine each of them
- The chairperson must then decide whether the employee is guilty or not. It is advised that the chairperson take at least 48 hour to consider the case before delivering a recommendation
- If the employee is not guilty, the inquiry is closed
- If the employee is guilty, the chairperson must decide on an appropriate sanction, taking into consideration mitigating and aggravating evidence from the employee and the complainant. The chairperson must take into account the employee’s position, circumstances, length of service, previous disciplinary record, and the circumstances of the misconduct
- Minutes from the hearing must be distributed to and signed by the complainant, respondent and the chairman
Can an employee appeal?
The law does not require companies to offer employees an appeal hearing subsequent to the disciplinary enquiry. After an employee has been dismissed, they may refer an unfair dismissal dispute to the CCMA or a bargaining council. A mediator will try to conciliate, failing which the CCMA commissioner will issue a certificate of non-resolution and the dispute will be arbitrated.
Arbitration is a new, “full-blown” hearing and all the facts of the matter must be placed before the commissioner. Employers often have their decisions overturned because they fail to lead all the evidence. It is extremely important to include all evidence regarding why the sanction of dismissal was imposed. All the circumstances that were considered in deciding to dismiss an employee must be presented to the commissioner.
Employers must justify the sanction imposed and the commissioner will determine whether it was fair. Dismissal is often overturned because of inconsistencies, so be sure to avoid them.
For more information, contact Karen Ainslie, +27 11 685 8906, email@example.com, www.deneysreitz.co.za
Charity Begins At Home This Festive Season
3 Ways to invest in your own employees.
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.
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.”
How Medical Savings Accounts Are Changing – For The Better
By Jeremy Yatt, Principal Officer of Fedhealth
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.
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.
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.
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.
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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