Have you, as an employer, ever wondered how to deal with disciplinary action when criminal charges are relevant too?
Herewith are some advice and pointers to consider.
Misconduct in the workplace must be dealt with in terms of labour legislation and guidelines; however, certain misconduct (e.g. fraud or theft) may also warrant criminal investigation and criminal charges being laid against the employee/s in question.
Should you, as an employer, suspect any criminal activity, we recommend that you report it to SAPS. However, first, attend the disciplinary hearing, to prevent unnecessary delays should the employee be arrested and be denied bail pending resolution of the criminal case. Waiting for the finalisation of a criminal matter prior to arranging a hearing may cause lengthy delays and be problematic for the employer.
The notice of hearing (and suspension, if applicable) must be served on the employee a minimum of 48 hours prior to the hearing. The employee must also be able to attend the hearing. Therefore, if the employee has been arrested by SAPS, the hearing can only be arranged for a date and time after the employee has been released on bail. It would not be fair nor reasonable to proceed with the hearing when the employee is not able to attend the hearing.
If the employee is suspended in anticipation of a disciplinary hearing, the suspension will be with pay from the date that the suspension notice is served on the employee. However, ‘no work – no pay’ applies during the period the employee is in jail should disciplinary steps not be finalised, and the employee has not been suspended.
Will the disciplinary action prejudice the criminal action or vice versa?
No, the outcome of the one matter does not affect the other, as they are two separate processes.
The employee’s misconduct may affect the trust relationship. Therefore, it is recommended that the employer commence the disciplinary steps as soon as they are in a position to do, or within a reasonable time of becoming aware of the misconduct.
For further queries or assistance, kindly contact your SEESA representative for advice, alternatively, please leave your contact details on our website.
About The Author:
Carla Delaney is a Labour Legal Advisor at our De Aar office.
References:
Workplace Law, 12th Edition by John Grogan, pages 218 -219