Keep yourself out of the CCMA
by Claire Stewart on 31/03/08 at 7:00 am
8 comments
Many cases that are taken to the CCMA are as a consequence of employers not following the correct procedures when dismissing an employee. Generally employees are dismissed for either misconduct or for poor work performance. Misconduct occurs when your employee breaks your rules and/or breaches the terms of the employment contract and/or causes excessive harm to your company. Poor work performance occurs when your employee is not meeting your required performance standards.
As I’ve mentioned before, an employer can’t just go ahead and get rid of an employee that they’re not happy with- there are procedures that have to be followed and these procedures are different when dealing with misconduct and poor performance.
Dealing with Misconduct:
You should:
- have clear codes of conduct in place and your employees should know and understand what is required of them
- correct an employee’s behaviour through a graduated system of disciplinary measures – verbal and written warnings, final written warnings and disciplinary hearings.
- You don’t have to go through the entire system each time- if the offence is serious you can go straight to either written warnings, final written warnings or a disciplinary hearing.
- only dismiss for serious misconduct or repeated offences BUT you always must hold a disciplinary hearing!
The Disciplinary Hearing:
What you need to do:
- Give your employee a detailed notice to attend a disciplinary hearing (when, where, who etc) in a language that they understand. List the allegations in plain language i.e. no legal speak.
- Give you employee the option to have an interpreter if necessary.
- Give your employee time to prepare a response and the right to be assisted by a trade union representative or fellow employee.
- Provide the employee with an opportunity to state his/her case.
- If applicable bring in any witnesses or members of staff that will give you any additional information that you require.
- Communicate your decision and give your employee written notification of the decision after the disciplinary enquiry.
Dealing with Poor Work Performance:
When dealing with poor work performance you need to:
- provide the employee with whatever ‘evaluation, instruction, training, guidance or counselling’ they need to perform their work satisfactorily
- give the employee ‘reasonable time’ to improve their performance.
- hold an ‘investigation’ into why your employee’s performance is not satisfactory
- considered ‘other ways’ besides dismissal to solve the matter in your investigation
Once again you need to work through a graduated system of disciplinary measures but you need to include a lot more counselling in this process. Keep a written record of all counselling meetings. The measures will once again culminate in a Disciplinary Hearing. The correct procedures for the hearing are the same as those for a misconduct hearing.
To Dismiss or Not to Dismiss:
- You generally don’t dismiss for a first offence, only if the misconduct is serious and makes the ‘employment relationship intolerable’ (e.g. gross dishonesty, wilful damage to property, wilfully endangering the safety of others, gross insubordination).
- When you are deciding whether or not to dismiss an employee you must also consider the gravity of the misconduct and other factors, including:
*Length of service
*Previous disciplinary record
*Personal circumstances
*Nature of the job
*The circumstances of the infringement itself.
- You must dismiss consistently with the way in which you have dismissed other employees in the past.
You can only dismiss your employee for poor performance if you can prove that the employee:
- was aware of the performance standard
- failed to meet a fair and reasonable performance standard
- was given a fair opportunity to meet the required standard
…and that dismissal was an appropriate sanction in relation to the severity of the poor performance.
Claire Stewart is the founder of PeopleWise, an HR and Employment consulting service. Like Neo in the Matrix, Claire sees through the convoluted mess of SA employment law and makes sense of it for you, loyal Ideate reader. View more articles by Claire Stewart.
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Gugu Ntuli
Dec 5th, 2008
Good afternoon
I would like to have your assistance or advise with regards to this
matter and I am not a member. I have been treated unfairly at work which
also led to me being suspended and the accusation are that I have damaged
their property. and my services might be terminated due miscoduct and
dishonest related criminal conviction. I was told that someone saw me
jumping on the harddrive which is not true and I feel that they ganged up
on me with the witnesses. and to me this is a serious case and
accusations and when I asked to bring in my representative I was told that
I cannot this is an internal issue. they can only allow representative
from SASBO or any of my collegue. I am not the member of SASBO and I feel
that this is unfair for me because this can lead to termination of my job,
is this true? I have been treated unfairly by this manager from the day
one I started working for this company, there’s been to much lies, now it
is like they trying to get rid of me.
Your help will be much appreciated.
Thanks
Gugu Ntuli
Claire
Dec 8th, 2008
Dear Gugu,
In terms of representation in disciplinary hearings in the workplace your employer is in fact correct- You are only entitled representation by a fellow colleague or a trade union that you are a member of. If the disciplinary haring results in you being dismissed, you can take the matter to the CCMA if you wish.
Kind regards,
Claire
Anele
Feb 10th, 2009
What is your view on right to representation when it comes to CCMA cases. I am a para legal working with farm workers and most do not have the capacity to adequately represent themselves at hearings. At the same time, the employer is able to be represented by Employers Organisation.
Unions in this sector is non – functional.
Claire Stewart
Feb 10th, 2009
No doubt about it, they have got the rough end of the stick. The unions need to get jacked up.
aris
Sep 28th, 2009
Good morning
I have those two employees and they are technicians with many years experience but the one all the time is doing mistakes that they are costing me alot of money and time to be fixed and the other is not performin g in the bussines as he supposed . Can i redused their salary ? How many warnings i ve to give before i dismmiss them?
thanks
aris
Department Of Labour | South Africa after 2009 Elections
Nov 6th, 2009
[...] What you need to do: – Give your employee a detailed notice to attend a disciplinary hearing (when, where, who etc) in a language that they understand. List the allegations in plain language i.e. no legal speak. – Give you employee the option to have an interpreter if necessary. – Give your employee time to prepare a response and the right to be assisted by a trade union representative or fellow employee. – Provide the employee with an opportunity to state his/her case. – If applicable bring in any witnesses or members of staff that will give you any additional information that you require. – Communicate your decision and give your employee written notification of the decision after the disciplinary enquiry.Read More [...]
Kholisa Rampele
Apr 7th, 2010
I worked for a mattress company as a branch manager earning a basic of R8,500 plus commission. I was then transferred to a non performing company and my salary got reduced to R2,500 basic plus commission. My total salary including commission comes to R2700 p.m. I cannot survive and is uncertain whether or not to leave knowing that jobs are scare I am in a predicament whether or not I should leave and file my matter with the CCMA.
TEBOGO
Oct 30th, 2011
i have a problem at work, they just registered people to be permanent, after being temporal for 5 years some of them 10 years, and now they want to retrench people after 3 months they permanent…. so i want to know if that is allowed and if not which step must be taken. please help me out.