When an employer wishes to dismiss an employee there are certain factors that need to be taken into consideration. An employer cannot merely dismiss an employee on a whim.
The employer needs to adhere to the Labour Relations Act and the prescribed procedure when dismissing an employee.
When an employer decides to dismiss an employee there needs to be ensured that the procedure followed is correct. In this instance, a disciplinary hearing is required.
Notice of a Disciplinary hearing:
- The employee must be given written notice to attend a disciplinary hearing at least 48 hours prior to the disciplinary hearing taking place.
- This allows the employee to be fully prepared for the hearing.
- If an employer does not provide the standard 48 hours, the hearing must be postponed in order for the employee to prepare his case accordingly.
Proceedings of a Disciplinary hearing:
- A chairman should be appointed which will conduct the disciplinary proceedings.
- This can be an internal or external person.
- It is always advised for the employer to ensure that he has a checklist of what needs to be addressed at the hearing.
NB: The employer must ensure that the chairman appointed does not have any interest whatsoever in the matter as well as being unbiased in the proceedings.
Important information relayed to employee:
The chairman must explain the hearing process to the employee and ensure that the employee understands their rights fully.
The employee must be informed:
- That they can be represented by a fellow employee.
- That they have the right to conduct the proceedings in their mother tongue if so required.
- That they may prepare arguments and present evidence.
- That they may call witnesses and present documentary evidence if so required.
NB: Both employee as well as employer must be given a full opportunity to state their account of events and state their case.
The chairman must be presented with all necessary information in order to make an informed decision.
- Once the proceedings have finished the chairman will make the recommendation.
- This can either be done on the same day or the chairman may require a specific time period in order for him to make his recommendations.
REMEMBER: The chairman does not make the final decision in whether the employee must be dismissed, this lays with the employer.
If the decision has been made by the employer to dismiss the employee, the employer needs to provide the employee with a Notice of Dismissal.
The employer needs to:
- Ensure that any leave pay due to the employee is paid out.
- The UI-19 form is filled in correctly.
- Any other outstanding monies that might be due to the employee is paid out.
If this procedure is not adhered to, there is a big chance that you could find yourself in the CCMA, which is a waste of your time and money. Therefore always make sure you dismiss someone for the correct reasons.