Misconduct in the workplace can vary from minor to serious offences. Employers are required to have a disciplinary code in place that lists offences, as well as appropriate sanctions.
An employer cannot dismiss an employee under any circumstances, even with a valid reason, without a disciplinary hearing. This is to ensure that fair procedure is followed and there is a substantive reason (proof) for dismissal.
Dealing with misconduct
To identify misconduct and enforce discipline in the workplace, employers should:
Investigate: The employer must determine all the facts surrounding the misconduct. The investigation should be conducted in a fair and objective manner by a person with sufficient knowledge of the specific working environment.
Gather evidence: The employer should confirm the facts surrounding the misconduct. Evidence: can include witness statements, photographs, video footage, documentary evidence and one or more interviews with the employee.
Consult with the employee: It is important when doing so to give the employee an opportunity to present more information and explain the situation from his or her perspective. The employer should also determine whether the offence was due to negligence or committed with intent.
Determine the sanction: The sanction is governed by the seriousness of the offence. To establish whether the sanction is fair, the employer must consider the facts of the case according to its own merits. The employer has to prove on a balance of probability that the employee is guilty before imposing any sanction.
Take disciplinary action: A disciplinary code is crucial for ensuring that there are clear rules
with appropriate sanctions for employees to follow in the workplace.
When these are transgressed, the employer can apply progressive discipline (warnings) or, in cases of severe misconduct, proceed directly to a disciplinary hearing.
Preparing for a disciplinary hearing
An employer has to give the employee 48 hours’ notice of a disciplinary hearing to allow him or her adequate time to prepare.
(This period excludes weekends and public holidays.)
Care should be taken to ensure that documentation – the notice to attend and a procedural application form – contains all the necessary information required by legislation.
The employer, employee and chairperson are involved in the hearing. The chairperson, who should be an impartial third party, is responsible for keeping the hearing in good order and making a finding of guilty or not guilty, based on the evidence presented.
The employer, or the person acting on behalf of the employer, must lead all evidence, including calling witnesses, presenting documentation and/or video footage, among others.
Employers must follow these steps to ensure they are prepared for a disciplinary hearing:
- Formulate the charges and make sure they contain the correct facts;
- Choose a proficient representative to argue the case on behalf of the employer, if necessary;
- Decide on the evidence and witnesses to be used during the hearing;
Consider any possible defence that the employee can use during the hearing and prepare questions to cross-examine the employee;
- Prepare closing arguments in which the evidence is summarised, as well as an argument for why the employee is guilty of the allegations.
- Prepare aggravating factors to support the appropriate sanction.
- Staff misconduct can present an important business risk and needs to be managed proactively.
Alexandra Small is a legal advisor at the LWO Employers’ Organisation. She holds qualifications in industrial psychology and labour relations.
For all labour-related issues, phone the LWO Employers’ Organisation on 0861 101 828.