Expert opinion: Pitfalls when firing an employee

Expert opinion: Pitfalls when firing an employee
August 16, 2017 Tersia Landsberg

When you need to terminate an employee’s services, do you know what to avoid or what pitfalls there are? Anton Brüne, SEESA Labour National Manager, contributed to a list of expert opinions on pitfalls when firing an employee.

Here are his top 10 common mistakes employers make when firing an employee:

South Africa’s Labour Laws are some of the most stringent in the world. The Commission for Conciliation, Mediation and Arbitration (CCMA) is the largest dispute resolution body of its kind in the world. In the 2015/2016 financial year, the CCMA received a staggering 179 528 referrals. Of these, a massive 74% ended up in settlement agreements between the parties. It, therefore, goes without saying that employers have to be extra careful in the way they approach and execute workplace discipline.

10 common employer mistakes:

  1. Failing to put in place a fair Disciplinary Code that sets out workplace offences and provides guidelines on sanctions. This Code must be made known to all employees.
  2. Failing to carefully investigate alleged transgressions before proceeding with a formal disciplinary hearing. It often happens that pertinent facts only come to light during a disciplinary hearing that would have influenced the employer’s decision on whether or not to proceed with the hearing in the first place.
  3. Failing to give the employee adequate notice to attend a disciplinary hearing. The notice must include enough details of the alleged offence to enable the employee to properly prepare for the hearing.
  4. Failing to act consistently. Employers have a duty to treat all breaches of its workplace rules in a consistent manner and they must consistently apply the same rules to all employees.
  5. Failing to follow progressive discipline. All disciplinary offences are not equal in severity and do not necessarily justify a sanction of dismissal. Progressive discipline with verbal, written and final written warnings is often the correct approach.
  6. Failing to delegate the responsibility of chairing disciplinary hearings to sufficiently senior and experienced staff members.
  7. Failure to hold a procedurally fair hearing. The requirements here are not as strict as in a criminal trial, but the basics have to be in place: the employer must state its case by submitting evidence and calling witnesses, and the employee must be allowed to state his case by submitting evidence and calling witnesses. Both the employer and the employee then also have the right to cross-examine each other’s witnesses.
  8. Failure to keep a proper document trail of the entire disciplinary process. Many employers lose CCMA cases simply because they are unable to produce the necessary documentary proof when required.
  9. Failure to continuously train relevant staff members and keep them updated on the latest changes in labour legislation.
  10. Failure to make use of professional assistance. As mentioned, the South African labour legislation is stringent and complex. Utilising the services of a professional labour consultancy from the very beginning of a potential labour dispute is often the difference between success and failure at the CCMA.

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