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What happens when an employee resigns?

 

What is resignation?

 

Resignation is when the employee decides to end the employment relationship. It should be noted that the employer does not need to accept the resignation for it to be valid, as a resignation is a unilateral act giving rise to the end of the employment relationship.

 

Resignation and notice period

 

An employee is required to give an employer notice that s/he intends to resign. The purpose of giving notice is to advise the employer in advance of the date on which the employee will officially cease to work.

 

Resignations should ideally be in writing. However, a verbal resignation still has the effect of ending the employment relationship. Section 37(1) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) requires an employee to serve the following notice periods:

• One (1) weeks’ notice, if the employee has been employed for six (6) months or less.
• Two (2) weeks’ notice, if the employee has been employed for more than six (6) months, but not more than one year.
• Four (4) weeks’ notice, if an employee has been employed for one (1) year or more or is a domestic worker or a farm worker who has been employed for more than six (6) months.

 

The employee and employer may agree to a notice period which is longer than the notice period prescribed in the BCEA, however the employee may not be required to give a period of notice that is longer than that required of the employer.

If an employer decides that the employee need not work all or part of the notice period the employer must pay the employee for the notice period.

At times employees resign but do not work all or some of their notice period. Employers may apply for the court to issue an urgent order of “specific performance”, in other words, order the employee to work the required notice period. The employer could sue for damages, namely the loss the employer suffered as a result of the employee not working his/ her notice period. Pursuing these options may be difficult and costly and therefore employers seldom opt for them.

 

Voluntary resignation and UIF

 

A voluntary resignation is where the employee terminates the employment relationship of his/her free will. An employee who resigns voluntarily may not claim UIF benefits.

 

Withdrawal of notice

 

Because resignation is a unilateral act, the employer does not need to ‘accept’ or agree to an employee’s resignation. Should an employee decide to resign, perhaps in a moment of anger, and subsequently wish to withdraw the resignation, the employer is not obligated to grant such a request and can enforce the original resignation.[/vc_column_text][vc_column_text]

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What happens when an employee resigns

What is an automatically unfair dismissal: S187 of the LRA

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What is an automatically unfair dismissal?

 

Automatically unfair dismissals are covered by section 187 of the Labour Relations Act 66 of 1995 as amended (“LRA”).

 

An automatically unfair dismissal is different from an “ordinary” dismissal, in other words a dismissal for reasons relating to the employee’s conduct, capacity or the employer’s operational requirements. The essence of the unfairness in these situations comes from the reason for the dismissal. The reasons are regarded by the law as being so serious that such dismissals are automatically unfair.

 

Automatically unfair dismissals are often related to the infringement of a fundamental right. Freedom of association, for instance, is a fundamental right enshrined in section 23 of the Constitution of the Republic of South Africa, 1996. Where the reason for the dismissal relates to an infringement of that fundamental right, it is an automatically unfair dismissal. So too, the right to strike is a fundamental right; accordingly, a dismissal for participation in a protected strike (a strike which complies with the LRA) will be automatically unfair.

 

If a dispute relating to an automatically unfair dismissal remains unresolved after conciliation by the CCMA or bargaining council, the dismissed employee may refer the dispute to the Labour Court for adjudication. If the dismissal is found to be unfair the Labour Court may award the employee compensation of up to 24 months’ remuneration. The CCMA does not have the power to arbitrate disputes involving alleged automatically unfair dismissals unless the employee and employer agree, in writing, to arbitration by the CCMA.

 

Dismissing an employee for any of the following reasons could be an automatically unfair dismissal:

• exercising a right granted under the LRA;
• participating in any proceedings in terms of the LRA;
• participating in, supporting, or expressing an intention to participate in or support a protected strike or any protest action that complies with the LRA;
• refusing or indicating an intention to refuse to perform any work normally done by an employee participating in a protected strike or who was locked out, unless such work is essential to prevent immediate risk to life, personal safety, or health;
• refusing to accept the employer’s demand relating to any matter of mutual interest, for example dismissing an employee for refusing to accept the employer’s demand to reduce pay;
• pregnancy, planned pregnancy or any other reason related to pregnancy;
• belonging to or participating in the lawful activities of a trade union;
• direct or indirect discrimination on grounds, including (but not limited to) race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, political opinion, culture, language, marital status, family responsibility, or on any arbitrary ground;
• a transfer, or reasons related to a transfer where a business is transferred from the old employer to a new employer as a going concern or under circumstances outlined in section 197A of the LRA which relates to insolvency;
• making a protected disclosure as defined in the Protected Disclosures Act, 2000.

 

It is not unfair to terminate the services of an employee if the employee has reached the normal or agreed retirement age. If the employee challenges the dismissal the employer will need to prove that the age is the normal or agreed retirement age.[/vc_column_text][vc_column_text]

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What is an automatically unfair dismissal

What is the meaning of dismissal: S186 of the LRA

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What is the meaning of the word “dismissal” as set out in section 186 of the Labour Relations Act 66 of 1995 (LRA)?

 

Section 186 of the LRA provides the meaning of dismissal by describing six types of circumstances which may be defined as a “dismissal”:

 

1. Where an employer terminates employment summarily, without notice or by conduct, or terminates employment by giving an employee notice. This form of dismissal covers almost all forms of termination of employment by the employer.
2. Where an employee works on a fixed-term contract and the fixed-term expires, the employment terminates automatically. This is not a dismissal unless the employee had a reasonable expectation that the employer would renew the fixed-term contract or retain him/her on an indefinite basis and can substantiate that expectation, e.g. by showing that the employer had previously renewed similar contracts or had represented to the employee that the contract would be renewed, etc. Where an employer does renew a fixed-term contract or retains an employee on an indefinite basis, but on substantially less favourable terms and conditions, this may also amount to a form of dismissal.
3. The Basic Conditions of Employment Act 75 of 1997 (BCEA) provides women employees with an entrenched right to “at least four months’ maternity leave”. Collective agreements and individual employment contracts may improve on this minimum right, but may not undermine it. An employee who takes maternity leave must be permitted to resume work at the end of her leave. An employer who does not allow an employee to return to work after this period of time is taken to have dismissed the employee.
4. Where an employer has dismissed a number of employees for the same or similar reason, such as collective misconduct, and later offers to re-employ some, but not others, the employees who are not included in the offer are taken to have been dismissed from the date they were not re-employed.
5. Where an employee terminates his/her employment by resigning, or simply walking out, because the employer made continued employment intolerable for the employee, this amounts to a dismissal and is referred to as a constructive dismissal.
6. After a business is transferred as a going concern or in circumstances of insolvency, the new employer replaces the old employer and employment of the employees continues. However, if the “transferred” employees are provided with conditions or circumstances of work that are substantially less favourable than had been provided by the old employer, an employee may resign, giving rise to a unique type of constructive dismissal.

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What is the meaning of the word “dismissal” as set out in section 186 of the Labour Relations Act 66 of 1995 (LRA)?

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How to end the employment relationship in a fair manner where employees go on an unprotected strike

 

The guidelines that must be followed before dismissing employees who take part in an unprotected strike are set out in item 6 of Schedule 8 to the Labour Relations Act 66 of 1995 as amended (“LRA”), the Code of Good Practice: Dismissal (“the Code”).

A strike is unprotected if employees embark on a strike without complying with the requirements outlined in the LRA.

 

The following procedure should be followed by the employer before dismissing or disciplining employees who take part in an unprotected strike:

• Where a registered trade union has been recognised by an employer, the employer should contact the trade union as soon as possible in order to discuss the steps it plans to take.

 

• The employer should issue a clear ultimatum to the employees on strike, specifying that they must return to work together with a deadline. The ultimatum must also outline the action the employer plans to take in case of non-compliance, namely an opportunity to heard whereafter employees may be disciplined or ultimately, dismissed.

 

• Employees should be given sufficient time to consider and respond to the ultimatum. They have the option to accept it or decline it, knowing the potential consequences.

 

• The striking employees must be given an opportunity to be heard prior to being dismissed. Such an opportunity may be a formal disciplinary hearing, a discussion between the employer and the trade union, or in the absence of a trade union, with the chosen employee representatives. It may also take the form of a letter sent to the strikers inviting them to give reasons as to why they should not be dismissed or disciplined. It is accepted that during a strike, a formal hearing may not always be possible, and thus it is likely than the employer will be able show that the procedure was fair even in the absence of a full disciplinary hearing. However, it is important to provide employees with a reasonable opportunity to respond to allegations made against them.

 

• Caution should be exercised when deciding to dismiss a group of employees as there should be sufficient proof to show that the employer has correctly identified those involved.

 

In deciding whether or not there was a fair reason for dismissing employees who took part in an unprotected strike the Labour Court will consider:

 

• The seriousness of the contravention of the LRA

Here the court will look at the extent to which the strikers did not comply with the LRA. This could include failing to give the employer any warning or notice of the strike.

 

• Whether attempts were made to comply with the LRA

Here the court will consider whether or not the employees made any attempt to comply with the LRA. For example, if employees merely filled in the referral form incorrectly, the court will not consider this to be a major defect. Consideration should also be given to the circumstances surrounding the unprotected strike such as acts of violence and intimidation.

 

• Whether or not the strike was in response to the unjustified conduct by the employer

“Unjustified conduct” refers to situations in which the employer treated its employees unfairly or engaged in unlawful behaviour. This must be taken into account as a mitigating factor in favour of the employees.

 

Employees who take part in a protected strike are protected from being dismissed on the basis that they are engaging in a strike which complies with the requirements as per the LRA.

 

If an employer dismisses an employee for participating in a protected strike, such a dismissal is automatically unfair and the employee may refer the dismissal to the CCMA or a bargaining council for conciliation, followed by a referral to the Labour Court for adjudication in the event that the dispute remains unresolved.

 

Misconduct during a strike

All the usual rules relating to misconduct apply during strike action, whether the strike is protected or not. Employees found to have committed acts of gross misconduct, for example assault, intimidation, wilful damage to company property, during a strike may be dismissed provided the dismissal is procedurally and substantively fair. In incidents of group misconduct, caution mut be exercised to ensure that there is sufficient evidence against each employee before determining an appropriate sanction.[/vc_column_text][vc_column_text]

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How to end the employment relationship in a fair manner where employees go on an unprotected strike

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How to end the employment relationship in a fair manner where the employee is unable to get on with fellow employees (incompatibility)

 

In the How to Guide on “How to manage the employment relationship in a fair manner where the employee is unable to get on with fellow employees”, the following guidelines are recommended for managing an incompatible employee:

• The employer should assess the compatibility of the employee by gathering objective supporting evidence, which establishes incompatibility.
• Advise the employee that you wish to consult with him/her.
• Clearly identify the conduct of the employee causing problems and indicate the desired behaviours or conduct required.
• Provide sensible and practical advice where possible. Probe areas where the employee may benefit from counselling or coaching from an experienced senior, if available.
• Give the employee adequate support, means and time to remedy shortcomings and to adapt behaviour.

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[/vc_column_text][vc_column_text]Should the employee not improve, and the employer is satisfied that it has done everything reasonably possible to assist the employee, a hearing may be convened to address the situation and to make a decision as to the way forward.

Prior to convening a hearing in order to decide whether or not to dismiss an employee for incompatibility, an employer should consider whether the incompatibility is ongoing, serious and potentially damaging to the business.

If this is the case, it is advisable for the employer convene a hearing.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]How to conduct a fair hearing in respect of an employee who is unable to get on with fellow employees:

1. 1. Arrange a chairperson and suitable hearing venue and notify relevant participants. The chairperson’s role is to assess the claimed incompatibility by listening to both the employee’s supervisor/manager and the employee, ultimately deciding whether the employee is indeed incompatible. In larger companies it is common to have a designated chairperson, but in smaller businesses, the owner may take on this responsibility in addition to presenting evidence relating to the employee’s incompatibility.
   2. Give the employee a notice to attend an incompatibility hearing.
   3. Advise the employee that s/he may bring a representative to the hearing. This may be a fellow employee or a trade union representative (shop steward). Assistance by a trade union representative only applies if a trade union has been granted the right to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee in his/ her capacity as a fellow employee.
   4. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the hearing to assist as an interpreter.
   5. Ensure that the employee is aware of and understands the purpose of the incompatibility hearing and explain how the hearing will be conducted.
   6. The employee’s supervisor/manager should outline the expected behaviours, previous consultations, commitments, and efforts made to improve the employee’s behaviour.
   7. The employee’s supervisor/manager should provide details regarding the reports, incidents, and issues that necessitated the hearing, along with the impact of these occurrences and the behaviour on colleagues and the employer. Evidence to support the incompatibility could include complaints, grievances, and specific instances. Avoid vague generalizations.
   8. The employee’s supervisor/manager should describe how the employee’s behaviour, conduct, or management style has caused unrest, disruption, disharmony, confusion, and unhappiness, leading toa hostile or discordant work environment that hasn’t improved despite prior interventions. The employee’s supervisor/manager should also explain any ongoing negative impact on productivity and other aspects in the workplace.
   9. The employee’s supervisor/manager may call witnesses.
   10. Give the employee and his/her representative the opportunity to respond and to call witnesses if required.
   11. If witnesses are called, give the supervisor/manager and the employee and his/her representative the opportunity to question the witness.
   12. Adjourn the hearing to make a finding. Consider the following checklist which is based on the requirements for a fair dismissal for incompatibility.

CHECKLIST: DISMISSAL  BASED  ON  INCAPACITY – INCOMPATIBILITY
1.	Was the employee made aware of the expected behaviour/conduct?
2.	Was the employee given feedback regarding his/ her deviations from the expected behaviour/ conduct and advised of the consequences of not improving?
3.	Is the behaviour/conduct complained of significant (sufficiently serious to warrant attention) and having a negative impact on the operations of the employer?
4.	Is the behaviour/conduct predominantly attributable to the employee?
5.	Is there independent and corroborated evidence of the incompatibility?
6.	Was the employee unable to provide a reasonable defence?
7.	Has the employee been given adequate support, means and time to remedy shortcomings and to adapt behaviour?
8.	Are there no alternatives to dismissal (e.g. demotion, transfer)?
9.	Is the impact on the relationships irredeemable and irreparable?

13. If the answer to each of the above is “yes”, the employee may be dismissed if no other alternatives are reasonably available and viable under the circumstances.

14. Once a decision is made, reconvene the hearing and advise the employee of the decision.

15. If the decision is to dismiss the employee explain why this decision was reached and advise the employee of his/her right to refer an unfair dismissal dispute to the CCMA or a bargaining council within30 days if he / she believes the dismissal is unfair.

16. Provide the employee with the decision in writing.

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How to end the employment relationship in a fair manner where the employee is unable to get on with fellow employees (incompatibility)

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How to end the employment relationship in a fair manner where the employee is unable to work due to illness or injury

 

Where an employee is unable to work due to ill health or injury an employer is required to meet and consult with the employee in order to investigate and discuss the employee’s sickness or injury to determine the nature and extent of it and consider alternatives to accommodate the employee.

For guidelines on how to manage this process, see the guide on “how to manage the employment relationship in a fair manner where the employee is unable to work due to sickness or injury.”[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]Should the employee not manage with the measures that the employer has implemented to accommodate the employee, and the employer is satisfied that it has done everything reasonably possible to assist the employee, the employer may convene a final hearing to address the situation and to make a final decision as to the way forward.

Prior to convening a final hearing to consider whether or not to terminate an employee’s services for incapacity related to illness or injury, an employer should consider the following factors:

• Has the employer considered and implemented all reasonable alternatives in order to accommodate the employee’s inability to perform due to illness or injury?
• Have the measures that have been implemented to accommodate the employee not worked well enough for the employee or caused unreasonable hardship to the employer?

If the answer to these questions is ‘yes’, an employer should convene a final hearing.

 

How to conduct a fair hearing in respect of an employee who is unable to work due to sickness or injury:

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1. Arrange a chairperson and suitable hearing venue and notify relevant participants. The chairperson’s duty is to evaluate the alleged incapacity by listening to the employee’s supervisor/manager and the employee, then determine if the employee can’t work due to ill health or injury. Large companies often have designated chairpersons, while smaller businesses may have the owner assume this role in addition to providing evidence regarding the employee’s incapacity.
2. Give the employee a notice to attend an incapacity hearing.
3. Advise the employee that s/he may bring a fellow employee as a representative to the hearing.  Assistance by a trade union representative (shop steward) only applies if a registered trade union has been granted the right to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist the employee in his/her capacity as a fellow employee.
4. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the hearing to assist.
5. At the start of the hearing ensure that the employee is aware of and understands the purpose of the incapacity hearing.
6. Explain how the hearing will be conducted.
7. The supervisor/manager should present details, together with evidence, relating to the extent to which the employee can’t perform the work, previous consultation(s) with the employee, adaptations and commitments made as well as steps taken to assist the employee. The supervisor/manager should
   explain how the employee’s inability to perform normal duties affects the business and the impact on the workplace, other employees and related entities or parties, for example customers, clients, or suppliers. The supervisor/manager may call witnesses.
8. The chairperson should consider submissions concerning the potential for reasonable accommodation of the impact that the ill-health or injury has had on the employee’s capacity to perform his/her job.
9. The employee and his/her representative must be given the opportunity to respond and, if required, call witnesses.
10. If witnesses are called, allow the supervisor/manager and the employee and his/her representative the opportunity to question the witness.
11. Adjourn the hearing to consider the information and evidence presented during the hearing and make a decision.
12. Once a decision is made, reconvene the hearing and advise the employee of the decision.
13. If the decision is to dismiss the employee explain why this decision was reached and advise the employee of his/her right to refer an unfair dismissal dispute to the CCMA or a bargaining council within 30 days if he/she believes the dismissal is unfair.
14. Provide the employee with the decision in writing.

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How to end the employment relationship in a fair manner where the employee is unable to work due to illness or injury

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How to end the employment relationship in a fair manner where the employee is unable to perform work to the required standard (poor performance)

 

As per this this guide on “How to manage the employment relationship in a fair manner where an employee is not performing to the required standard” if an employee is not performing well, an employer should assess the employee’s performance, give the employee feedback regarding his/her performance, provide the employee with appropriate training, guidance, or counselling, and give the employee a fair opportunity to improve.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]Should the employee not improve, and the employer is satisfied that it has done what is reasonably possible to assist the employee, the employer may convene a hearing to address the situation and to make a final decision as to the way forward.[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]How to conduct a fair incapacity enquiry for poor work performance

1. Arrange a chairperson and appropriate venue for the hearing. Inform the relevant persons of the need to attend the hearing. The chairperson’s role is to evaluate the alleged poor performance by listening to the employee’s supervisor/manager and the employee, then determine if underperformance exists.
   Large companies often rely on a designated chairperson, while smaller businesses may have the owner assume this role in addition to providing evidence regarding the employee’s performance.
2. Give the employee a notice to attend a poor performance hearing.
3. Advise the employee that he/she may bring a fellow employee as a representative to the hearing. Assistance by a trade union representative (shop steward) only applies if a registered trade union has been granted the right to have elected shop stewards for this purpose. A trade union representative
   who does not satisfy this criterion may only assist the employee in his/ her capacity as a fellow employee.
4. Should the employee require the assistance of an interpreter, advise the employee that he/she may bring a fellow employee to the hearing to assist as an interpreter.
5. At the start of the hearing ensure that the employee understands the purpose of the performance hearing.
6. Explain how the hearing will be conducted.
7. Allow the supervisor/manager to present the performance standards required, details of previous consultation(s), commitments made, and steps taken to improve performance as well as comment on the degree to which the employee’s performance meets the required standards. The supervisor/ manager is required to provide evidence to back up the allegation of poor performance and explain how the employee’s poor performance negatively affects the business. The supervisor/manager may call witnesses to the hearing.
8. Give the employee and his/her representative the opportunity to respond and, if required, call witnesses.
9. If witnesses are called, give the supervisor/manager and the employee and his/her representative the opportunity to question the witness.
10. Adjourn the hearing to consider an appropriate finding. The checklist below, based on the requirements for a fair dismissal, will assist in making a finding:

CHECKLIST:  DISMISSAL BASED ON POOR PERFORMANCE
a)	Did the employee fail to meet a performance standard?
b)	If yes, in what way did the employee fail to meet the standard/s?
c)	Are the standard/s reasonable and achievable?
d)	Was the employee aware of the standard/s or could reasonably be expected to be aware of the standard/s?
e)	If yes, how was the employee made aware of the standard/s or on what basis could the employee reasonably be expected to be aware of same?
f)	Was the employee given a fair opportunity to meet the standard/s? For example was the employee given training, evaluation (performance assessment and feedback) and counselling?
g)	Did the employee receive adequate support and assistance to meet the standard/s?
h)	Did the employee have enough time to meet the standard/s?
i)	Was the employee informed of the possible consequence (dismissal) if performance did not improve to the required standards?
j)	Would it be appropriate for the employer to consider dismissing the employee under the circumstances?

11. If the answer to each question above is “yes, consider whether it is possible to take any action short of dismissal, including providing another opportunity for the performance to improve, alternatively demoting the employee, or giving the employee a different role (by agreement and where reasonable).

12. If there are no other reasonable alternatives available, dismissal may be the only option.

13. Reconvene the hearing and advise the employee of the outcome.

14. If the decision is to dismiss the employee advise the employee in writing of this decision and briefly explain why the decision was reached (use the checklist above as a guide).

15. Advise the employee of his/her right to refer an unfair dismissal dispute to the CCMA or a bargaining council within 30 days if he/she feels that the dismissal is unfair.

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How to end employment fairly due to poor work performance

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Chairperson’s Checklist for a Formal Disciplinary Hearing

 1. Before the hearing

1.1 Check: are you sufficiently objective to chair the hearing?

1.2 Has the employee been given sufficient notice of the hearing?

1.3 Does the notice clearly describe the alleged misconduct?

1.4 Is the proposed date, time and venue suitable for all parties, including witnesses?

1.5 Is an interpreter / fellow employee conversant in the languages available, if required?

1.6 Is the employee a shop steward, and if so, has the trade union been consulted?

 

2. During the hearing

2.1 Open the hearing and introduce yourself (if necessary).

2.2 Check that the employee is present.

2.3 Request parties to sign an attendance register. Introduce the parties if necessary.

2.4 Advise parties if you are recording proceedings. (If employee requests permission to also record proceedings, this would normally be granted.)

2.5 If employee is not present, determine why and whether a postponement is required or whether the hearing will proceed in the employee’s absence.

2.6 If employee is present:

2.6.1 Check if employee has or requires a representative.

2.6.2 Check whether the employee requires an interpreter / fellow employee conversant in the required languages.

2.6.3 Check that the employee received the notice of the hearing.

2.6.4 Check that the employee understands the allegations.

2.6.5 Check that the employee had sufficient time to prepare.

2.7 Briefly outline the procedure to be followed in the first stage of the hearing, as follows:

2.7.1 Read the allegations and ask the employee to state separately whether or not s/he has committed the misconduct as alleged.

2.7.2 If the employee acknowledges having committed the misconduct, ask for background from both parties and then move to point 2.11.

2.7.3 If the employee denies having committed the misconduct, ask for opening statements from both parties.

2.7.4 Company leads evidence of its witnesses.

2.7.5 Cross-examination of each witness by the employee / representative.

2.7.6 Re-examination of the witness by the company.

2.7.7 Employee leads evidence.

2.7.8 Cross-examination by employer representative of employee’s witnesses (if any).

2.7.9 Re-examination of employer’s witnesses by employer’s representative.

2.7.10 Delivery of closing argument.

2.8 Follow procedure as outlined, then adjourn in order to consider the evidence and make a finding. Determine how long the adjournment should be, based on complexity of issues, and advise parties.

2.9 Make a finding whether or not to uphold one or more of the allegations (separate finding on each separate allegation). Parties to be advised of finding on resumption of proceedings.

2.10 If none of the allegations have been proved by the employer, the hearing ends.

2.11 If one or more allegations have been proved,  set out the procedure to be followed in the second stage of the hearing:

2.11.1 Evidence in mitigation (lessen) of sanction (e.g. personal circumstances, clean disciplinary record, long service, provocation, etc.).

2.11.2 Evidence in aggravation of sanction (e.g. cost to company, loss of trust (especially in cases involving dishonesty), previous warnings, etc.).

2.12 Adjourn to consider the sanction. Determine how long the adjournment should be, based on complexity, and advise parties.

2.13 Decide on the sanction / recommendation of sanction (depending on your mandate from the employer).

2.14 If the sanction is dismissal, determine whether summary dismissal or on notice.

2.15 If a recommendation is required, advise the employer of the recommendation and allow the employer to take a final decision on this.

2.16 Where the employer wishes to impose a more serious sanction than that recommended by the chairperson of the enquiry, the employer should notify the employee of this.

2.17 Advise the employee in writing of the outcome of the hearing. Note: the law does not require that an appeal process should follow, but if the employer provides for a right of appeal in the employer’s disciplinary policy / procedure, then this should be communicated to the employee.

2.18 If the employee is dismissed, ensure that s/he is advised in writing of his/her right to refer an unfair dismissal dispute to the CCMA / bargaining council within thirty (30) days of the date of dismissal (or 30 days of the date of outcome of an appeal, if any).

 

3. After the hearing

3.1 It is advisable to ensure preparation of minutes of the hearing as soon as possible (preferably typed, not handwritten). Minutes should be a summary of the evidence and argument, findings, mitigation and aggravation, and sanction. They do not need to be recorded word for word.

3.2 Check minutes for accuracy.

3.3 Where minutes are available ensure that a copy of the minutes is given to the employee. The employee should be asked to sign a copy of the minutes to confirm receipt and accuracy (but, cannot be forced to do so). Where s/he refuses to sign for receipt of the minutes, a witness may sign to confirm that the minutes were given to the employee.

3.4 Ensure that all documentation relating to the enquiry is kept safely, in the event of the outcome of the enquiry being challenged. (This would include the notice of the enquiry, documentary evidence, chairperson’s notes, minutes of the enquiry, outcome of the enquiry, and appeal documentation if any).

 

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Chairperson’s Checklist for a Formal Disciplinary Hearing