- HAVE A CLEAR AND STRAIGHTFORWARD DISCIPLINARY CODE AND PROCEDURE
An easy way to avoid a CCMA referral is to have clearly defined rules and processes which ensure that employees know what they can and cannot do and what will happen if they fall fowl of the rules. If an employee is dismissed for breaking a clearly defined rule, with a clearly defined sanction after a straightforward and transparent process was followed, he/she will be less likely to go to the CCMA. However experience has shown that this is not an absolute deterrent, so when an employee does break a rule, proceed to step 2.
- WHAT WOULD GERRIE NEL DO?
Before you decide to discipline an employee, it is important that you have gathered all the evidence including documentation, witness statements, CCTV footage, etc. Once you have all available evidence then evaluate whether there is enough evidence to discipline the employee and whether the evidence supports the breaking of a defined rule.
- PREPARE A SIMPLE AND STRAIGHTFORWARD CHARGE SHEET
The charges against the employee should be short and straight to the point. This enables the employee to know what charges he/she is facing and will save time by minimizing irrelevant evidence being introduced. It is important to ensure that the charge(s) is in line with the offences in your disciplinary code. The charge sheet should also state all the rights the employee has at the hearing, e.g. the right to be represented by a fellow employee or a union representative; the right to an interpreter, etc.
- GIVE THE EMPLOYEE A CHANCE TO PREPARE A DEFENCE
Employers often fall fowl here as they take their time is gathering the evidence against their employee and then give the employee 48 hours to prepare for the hearing. One must remember that procedural fairness also includes giving the employee sufficient time to prepare his/her defense.
- IMPARTIALITY ABOVE ALL ELSE
One of the most important procedural and substantive aspects of disciplinary hearings is that there must always be an impartial chairperson. This may involve getting an external party which may charge a fee, but it’s better than ending up with an award for 12 months compensation in favor of the employee because your brother was the chairperson at the hearing.
- GIVE THE EMPLOYEE A CHANCE TO BE HIS OWN DEFENCE ATTORNEY
An employee should be given the opportunity to cross-examine the employer’s witnesses and fully test the evidence against him/her. This ensures he/she has been given a fair opportunity to fully challenge the case against him/her.
- THE CHAIRPERSONS RULING IS FINAL
Sometimes, when employees are found guilty, employers overturn a chairpersons ruling where they view the sanction given by the chairperson as being too lenient and impose a dismissal. This often raises issues of fairness and impartiality of the person overturning the decision. Chairpersons should be allowed the chance to consider all the evidence in light of all the surrounding circumstances when coming to a decision, and they should make a ruling in line with the disciplinary code. Making sure your chairperson does this minimizes the need to overturn the decisions. This is where selecting an experienced chairperson and having clearly formulated disciplinary codes, become paramount.
