Critical for employers to be procedurally fair

South Africa’s labour law is decisive in that there are definite processes that have to be followed in order for disciplinary cases to be confirmed as being both substantially and procedurally fair. HR and HCM solution development and services company, CRS Technologies advises business leaders to be cognisant of all aspects in order to comply with the law.
Laws to govern the country’s public and private sectors dictate that when it comes to matters involving discipline all relevant and required procedures are followed throughout.
“Irrespective of the merits of the case, from induction to sanction, a case can be substantially fair but procedurally unfair,” says Nicol Myburgh, Head of Human Resources at CRS Technologies.
During this process, the Labour Relations Act places certain obligations on the employer and grants specific rights to employees.
The South African labour market is governed by this Act and it is Schedule 8 of this law, or the Code of Good Practice, that deals with key aspects of dismissals for reasons related to conduct and capacity.
However, as Myburgh explains, the Code is intentionally general. “Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach.”
“The Act emphasises the primacy of collective agreements. This Code is not intended as a substitute for disciplinary codes and procedures where they are subject to collective agreements, or the outcome of joint decision-making by an employer and a workplace forum.”
CRS Technologies underlines the main principle behind the Code, which is to ensure that employees and employers adhere to rules to pursue employment fairness and efficient operation of business.
The company stresses that with regards to procedural fairness, employers are required to adhere to the following process:
* Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry.
* The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
* The employee should be allowed the opportunity to state a case in response to the allegations.
* The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.
* After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
* Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
* If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
* Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.
As Myburgh explains, in exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
When it comes to further rights of the employee facing disciplinary procedures, and representation, CRS Technologies points out Section 4 of the Code of Good Practice: Dismissal/ Schedule 8 of the Labour Relations Act.
This area of the law states that when an enquiry is held into an employee’s alleged misconduct “The employee should be allowed the assistance of a trade union representative or fellow employee.”
It does however not state that lawyers or advocates are allowed to represent employees.
This is highly dependent on the facts and circumstances of each case and the policies and procedures of the employer.
“The labour law is precise and complex, and our message, as always, to the market is to be meticulous and proceed with caution. If in doubt or where hesitant, rather consult with experts in the field,” adds Myburgh.