by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Employers frequently complete disciplinary hearing charge sheets poorly without, for example, properly outlining the specific components of the allegations being levelled against an employee. Predictably, the entire disciplinary hearing process becomes contaminated should allegations of misconduct against an employee not be properly clarified in writing. There are a number of reasons for this.
To begin with, employers often accuse employee’s of acts of misconduct which, in fact, cannot be proved. An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required.
Secondly, terminology is used which is, on occasion, used inappropriately. For example, acts of misconduct are described as being of a gross nature when in fact the employer does not appreciate what distinguishes so-called gross misconduct from ordinary misconduct. In this regard it is not uncommon for an employer to compile an allegation of gross insubordination when in fact the employer cannot distinguish between ‘gross’ and ordinary insubordination.
The amount of information contained in a misconduct “charge sheet” is normally referred to as the “particularisation”. This frequently leads to disputes which focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations against him’/her so that they are in a position to properly prepare a defence.
If an employee is of the view that the employer has in fact not furnished them with enough information in the charge sheet to prepare a defence, such employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
The CCMA and Labour Court have been required to address numerous disputes relating to alleged insufficient particularisation of misconduct charge sheets in recent years, as indeed was the erstwhile Industrial Court prior thereto.
In short, Schedule 8 of the LRA informs parties that charges should be levelled “in a form and language that employees can reasonably understand”. Case law supplements this by providing that allegations must inform the alleged offender of what s/he is alleged to have done (or not done as the case may be) and the period over which he is alleged to have committed the offences.
In the CCMA arbitration case of SACCAWU obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (Case Number: MP2112-02) the commissioner held that “The charges should be specified with sufficient particularity to enable the employee to answer them. This does not mean, however, that the charges have to be drawn up with the precision of an indictment in a criminal trial. It is enough that the employee be able to prepare his or her defence. (See Police & Prisons Civil Rights Union v Minister of correctional Services & others (1999) 20 ILJ 2416 (LC))”.
In short, the employee should not be expected to have to speculate what the precise allegations are being levelled against them.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Punctuality is a basic fundamental employment obligation. It’s taken as a given that when an employee enters into an employment contract with an employer, the employee is able to attend work on time. Two of the most basic of common law employment obligations which accrue to employees are come to work on time, and come to work often!
That’s not to say of course that unavoidable circumstances are unimportant. On the contrary, if an employee can prove that they were prevented from arriving at work on time for reasons beyond their control, the employer cannot treat such late-coming as being an act of misconduct.
Ordinarily, late-coming is a minor offence which should be responded to by employers with gradual, progressive discipline. Of course, if an employee arrives for work substantially late, it may well warrant dismissal even though it may be the first instance of late-coming, especially if the employee has short service and shows no remorse.
Our Courts have endorsed dismissal for a pattern on late-coming. In CEPPWAWU obo Motshene v Sandoz SA [Arbitration Case No. CHEM305-09/10] it was held that “ … the employee must not only come to work – he/she must come to work on time, and be at the workstation during the agreed hours – even if the employer has no work for him to do.”.
The Commissioner continued that “ .. when an employee fails to correct his conduct .. where his late-coming continued, it undermines the employer’s trust in him/her”. The employer cannot run a business when he cannot rely on the Applicant to be at work on time. This would in turn, break down the employment relationship. It is therefore unreasonable, under the circumstances, to expect the employer to carry on in such an employment relationship.”
Poor time-keeping would typically justify a verbal warning for a first offence, written warning for a second offence, final written warning for a third offence, and dismissal thereafter.
Employee justifications for late-coming must be assessed whether, or not, the employee can be deemed to have been at fault for the late-coming. Punctuality cases are, to some extent, easier to deal with that many other cases of alleged misconduct in that the employer’s evidentiary burden is minimal as the late-coming is easily identifiable.
Whilst employee’s may be faced with lengthy commutes to work, and increasingly frustrating traffic congestion, this does not ordinarily justify late-coming, unless of course a single unforeseen traffic accident for example hinders an employee’s ability on a given day to arrive at work on time.
More often than not, progressive discipline is headed by employees and punctuality materialises before the need to dismiss.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Many employers will have been frustrated at times by employees presenting medical certificates covering the day or days on which the employee is required to attend a disciplinary hearing. It is of course quite possible that the employee is genuinely ill, and must be afforded time to recover from their ailment prior to attending a disciplinary hearing. However, on occasion, such medical certificates are merely an attempt to frustrate the continuation of a disciplinary hearing.
The question which rises in these circumstances is, can an employer continue with a disciplinary hearing when the employee being charged with misconduct has been booked of sick by way of an apparently legitimate medical certificate?
The conventional wisdom has been that the production of a medical certificate obliges the employer to put the disciplinary hearing on hold. The Supreme Court of Appeal (SCA) judgment, Old Mutual v Gumbi [2007] SCA, suggests that there are circumstances when an employer can justifiably proceed with a disciplinary hearing in the absence of an employee who has been booked off sick.
SA case law abounds with authority confirming that an employee who fails to take advantage of such an opportunity to be heard, cannot subsequently claim that their dismissal was procedurally unfair.
The Old Mutual SCA judgment addressed this very issue, concluding that disciplinary hearings may well, in certain circumstances, justifiably proceed in the absence of an alleged offender who has, at face value, a medical certificate booking them off sick for the day(s) on which the hearing is scheduled to proceed.
In this case, the employee was summonsed to a hearing after having become abusive toward and threatening to assault his superior when he was asked to explain claims for subsistence and travelling expenses.
The employee produced a medical certificate before the hearing which was, none the less, held in his absence. The employee was dismissed. However, Old Mutual reinstated the employee with a view to recharging him, after his representative made representations motivating that the dismissal be overturned, due to the fact that the employee could not attend the hearing due to illness.
The next day, the employee was issued notice to attend a fresh hearing.
After an adjournment, the employee furnished the hearing chairperson with a medical certificate which referred to “tension headache and enteritis”.
The chairperson adjourned the hearing for an hour to enable the employee to recover from his alleged headache. The employee and his representative refused to return to the hearing as they were of the view that the medical certificate entitled them to an adjournment.
The chairperson disagreed, and found the employee guilty in his absence and imposed the sanction of dismissal.
The judgment concluded that the employee “wanted to have the hearing aborted so as to prevent the fulfilment of a … fair disciplinary hearing”.
The dismissal was held to have been fair in that the employee had frustrated the fulfilment of the employer’s procedural fairness obligations.
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