Some people live in constant fear of being fired. Who is going to pay for the bond, the car, the children’s school fees, etc.? What if my boss has a bad day and decides to fire me at the drop of a hat? If it can happen in The Devil Wears Prada, it can probably happen to me, too…?
The good news: South African Labour Law favours reasonableness and (more often than not) the employee. A fair dismissal / being fired means two things. Not only must a dismissal be substantively fair (in other words for a good reason), but it must also be procedurally fair. This is where most employers falter: the dismissal was for a good reason but was done in an incorrect/ unfair manner! This could lead to the CCMA or Labour
Court ordering your reinstatement, compensation paid to you or even both!
Procedurally speaking, the process is normally as follows: verbal warning, written warning, final written warning and then … dismissal. Only in extreme cases (assault or gross negligence, for example) may an employer skip a few steps and opt to fire you. Between each of the aforementioned steps, however, another important protector-of-the-employee lies: the disciplinary hearing. Remember that the outcome of a disciplinary hearing can be a verbal warning, written warning, final written warning or being fired in serious cases.
5 Tips when faced with that ‘Notice to attend a Disciplinary Hearing’ document:
1. Request the formal written complaint that led to the disciplinary enquiry in the first place. This will help you prepare a proper defence. The formal written complaint will go into a lot more detail than the few sentences you’ll find in the ‘Notice to attend a Disciplinary Hearing’ document, which typically merely lists the charge(s) against you in a sentence or two. Note that you have a right to the formal written complaint, however, employers often fail to attach it to the ‘Notice to attend a Disciplinary Hearing’ document.
2. Ask whether you may bring in a legal representative. Most employers will, however, decline as they also have the freedom to do so. Your next best bet is a union representative or a colleague. You do have the right to be represented by a fellow worker. At the very least, use any colleague to sit in and take notes and write EVERYTHING down. This will serve you well should you take the matter to the CCMA at a later stage.
3. Make sure that the Chairperson is someone outside the organisation and does not work for/ follow demands of the complainant (person whose formal complaint led to the disciplinary enquiry against you).
4. Use the formal written complaint to prepare your questions to the complainant and his/her witnesses in advance. The complainant and his/ her witnesses should state their case first, providing you the opportunity to cross examine the complainant’s witnesses.
5. Make a special note of the time it takes for the Chairperson to come to a conclusion. Did the Chairperson take enough time (preferably a few days) to consider all the evidence or did the Chairperson perhaps have a preconceived outcome in mind? Remember that the Chairperson must use the evidence presented by the two parties (you and the complainant) to determine your guilt on a balance of probabilities. Your previous work record/ written warnings/ compliments/ mitigating factors are excluded from this decision and only come into play after the Chairperson is convinced of your guilt and before the Chairperson decides on a proper sanction (written warning, final written warning, dismissal/ being fired).
One last thing, remember your rights when it comes to a disciplinary hearing. Note that these rights must be provided to you in writing prior to the hearing. Make a large note of it if this is not the case!
You have the right to:
a. Be present at the hearing. If you fail to attend the hearing, the matter needs to be postponed to a new date. If you are then, however, absent once more, the enquiry may proceed in your absence;
b. Have enough time to prepare your defense against the charges;
c. Be represented by a colleague of your choice or by a shop steward/ union official;
d. Ask as many questions as you wish, cross examine the witnesses called by the complainant and also to have witnesses of your own present and ready to be asked questions;
e. An interpreter if necessary;
f. Appeal the decision of the Chairperson internally before proceeding to the CCMA.
* Attention all Legal Hero Policyholders: please contact us the moment your receive a notice to attend a disciplinary hearing or fear that you might be fired. Dial 0861 22 99 22 and select voice prompt 4.