Keep Yourself Out of the CCMA

Many cases that are taken to the CCMA are as a consequence of employers not following the correct procedures when dismissing an employee. Generally employees are dismissed for either misconduct or for poor work performance. Misconduct occurs when your employee breaks your rules and/or breaches the terms of the employment contract and/or causes excessive harm to your company. Poor work performance occurs when your employee is not meeting your required performance standards.

As I've mentioned before, an employer can't just go ahead and get rid of an employee that they're not happy with- there are procedures that have to be followed and these procedures are different when dealing with misconduct and poor performance.

Dealing with Misconduct:

You should:
- have clear codes of conduct in place and your employees should know and understand what is required of them
- correct an employee's behaviour through a graduated system of disciplinary measures - verbal and written warnings, final written warnings and disciplinary hearings.
- You don't have to go through the entire system each time- if the offence is serious you can go straight to either written warnings, final written warnings or a disciplinary hearing.
- only dismiss for serious misconduct or repeated offences BUT you always must hold a disciplinary hearing!

The Disciplinary Hearing- what you need to do:

- Give your employee a detailed notice to attend a disciplinary hearing (when, where, who etc) in a language that they understand. List the allegations in plain language i.e. no legal speak.
- Give you employee the option to have an interpreter if necessary.
- Give your employee time to prepare a response and the right to be assisted by a trade union representative or fellow employee.
- Provide the employee with an opportunity to state his/her case.
- If applicable bring in any witnesses or members of staff that will give you any additional information that you require.
- Communicate your decision and give your employee written notification of the decision after the disciplinary enquiry.

To Dismiss or Not to Dismiss:
- You generally don't dismiss for a first offence, only if the misconduct is serious and makes the 'employment relationship intolerable' (e.g. gross
dishonesty, wilful damage to property, wilfully endangering the safety of others, gross insubordination).

- When you are deciding whether or not to dismiss an employee you must also consider the gravity of the misconduct and other factors, including:

*Length of service
*Previous disciplinary record
*Personal circumstances
*Nature of the job
*The circumstances of the infringement itself.

- You must dismiss consistently with the way in which you have dismissed other employees in the past.

Dealing with Poor Work Performance:

When dealing with poor work performance you need to:
- provide the employee with whatever 'evaluation, instruction, training, guidance or counselling' they need to perform their work satisfactorily
- give the employee 'reasonable time' to improve their performance.
- hold an 'investigation' into why your employee's performance is not satisfactory
- considered 'other ways' besides dismissal to solve the matter in your investigation

Once again you need to work through a graduated system of disciplinary measures but you need to include a lot more counselling in this process. Keep a written record of all counselling meetings. The measures will once again culminate in a Disciplinary Hearing. The correct procedures for the hearing are the same as those for a misconduct hearing.

To Dismiss or Not to Dismiss:

You can only dismiss your employee for poor performance if you can prove that the employee:
- was aware of the performance standard
- failed to meet a fair and reasonable performance standard
- was given a fair opportunity to meet the required standard

And that dismissal was an appropriate sanction in relation to the severity of the poor performance.

Claire Stewart