Last week we discussed the basics of dismissal and the importance of fair reasons, a fair process and the onus of proof. We also said that a disciplinary hearing is very important as it is part of a fair process that will assist the employer to decide whether or not an employee is guilty of misconduct.
This week we will be looking at a new trend that employers are using in the place of disciplinary hearings to dismiss an employee. Please note that this process is extremely technical in nature and employers are not advised to embark on unless the employer does so with the assistance of a qualified Labour Lawyer or Consultant.
When employers do an investigation into an alleged misconduct they would have to come to a stage where they decide, in the face of the evidence, whether or not to go ahead with a disciplinary hearing. In most cases a hearing could be very costly due to an outside person being contracted to act as the chairperson of the hearing or due to time constraints. On top of that the employee admits guilt at the outset of the investigation and this obviously puts the employer in a very strong position to argue for dismissal at the disciplinary hearing.
In such cases the employer may opt to sign an agreement with the employee so that the employee waives his right to a disciplinary hearing and instead resigns with immediate effect. As part of such an agreement the employer might agree to give the dismissed employee a favourable reference for new employment once the employee has exited service at the employer.
If the employer has embarked on such a process CCMA Commissioners will closely scrutinise the process to ensure that the employee has not been bullied into the agreement and if so there will be more than adequate evidence available to the disposal of the employee to file for a case of constructive dismissal.
So, if you want to be on the safe side always conduct a disciplinary hearing to ensure that you follow the correct procedure to get the right result.