All cases of alleged unfair dismissal are assessed on the basis of two criteria, substantive (which we look at next week) and procedural fairness.
Whilst an ex-employee’s remedy for procedural unfairness does not include reinstatement, what is available to an employee deemed to have been procedurally unfairly dismissed is financial compensation up to twelve months salary.
So it makes sense to ensure that a dismissal is not only effected for a fair reason, but has also been executed in a procedurally fair manner; but what does this mean? In short, it’s the ‘how’ of disciplinary hearings.
Well, to begin with, employers are required to ensure that they comply with their own disciplinary procedures. Put simply, employers must comply with any disciplinary procedure which has been compiled in-house and been profiled to all staff as the company Disciplinary Procedure. Any deviation will typically render any dismissal (procedurally) unfair, regardless of the substantive merits of the case.
Procedural fairness is a critical requirement of all disciplinary hearings in light of the fact that common law requires that any employee accused of committing an act of misconduct (ie: a blameworthy act or omission), must be heard before a verdict is arrived at.
It has been submitted that it stands to reason that an employee’s version must be known by the hearing chairperson prior to his or her fate being determined.
Written charges must be issued to an alleged offender in a form and language s/he understands; if interpreters are required for this purpose then so be it.
Next, the employee must be afforded sufficient time to prepare for a hearing, normally viewed as no less than forty eight hours written notice of the hearing.
The chairperson should be objective, with no vested interest in the verdict and/or sanction. Chairperson’s should bear in mind that although they essentially have unfettered authority and powers in a disciplinary hearing, their verdict and/or sanction may well need to withstand independent scrutiny by a (CCMA or Bargaining Council) Commissioner should the outcome be subsequently challenged as having been unfair.
Decisions taken by chairperson’s need not be perfect, but they must be reasonable and rationale.
Whilst a disciplinary hearing procedure need not be conducted in an overly technical manner, certain procedural protocols must none the less be observed. For example, witnesses should testify and be exposed to cross-examination.
Guilt is to be determined on the ‘balance of probabilities’, which simply means that the chairperson must determine whether or not the employer complainant has proved, or not, that the employee is ‘probably’ guilty of the alleged misconduct.
Should the employee be found guilty, an appropriate sanction must be selected. Sanctions are selected on the basis of the following criteria, (1) the gravity of the misconduct in question, (2) disciplinary code guidelines, (3) mitigating factors, and (4) aggravating factors.
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