employee rights and responsibilities

Employee Rights and Responsibilities During the Dismissal Process in South Africa

The opinions and sentiments expressed in this blog about employee rights are the opinions and sentiments of this firm. They will not necessarily be supported or find favour with employers or, for that matter, representatives of employers – such as employer organisations.

While it is commonly acknowledged that employees should be treated fairly and given a fair hearing during disciplinary proceedings, we believe that employee rights are often overlooked in the disciplinary process.

The following are a few concerns to be raised when the issue of a fair disciplinary hearing is at stake:

The Disciplinary Code

The Labour Relations Act does not explicitly mandate employers to establish a Disciplinary Code in the workplace, although it is advisable to have one. If no written Disciplinary Code is in place, disciplinary hearings should be conducted according to Schedule 8 of the Labour Relations Act. This schedule does not have specific provisions but requires employers to conduct the hearing fairly, both in terms of procedural and substantive aspects. Even if an employer has established a Disciplinary Code, it cannot disregard the rules of natural justice when it comes to ensuring fairness.

Perhaps the biggest concern with written Disciplinary Codes is that employers (more often than not) do not discuss or negotiate the terms and conditions of Disciplinary Codes with employees or employee representatives and, if so, also more often than not tend to disregard proposals advanced by employee representatives – on the employer’s claim that the Disciplinary Code is, in any event, standard and fair. 

The Chairperson of a Disciplinary Hearing

Disciplinary hearings require a chairperson who is perceived as skilled, objective, and non-biased. The employer, whether an internal or external person, often appoints the chairperson. However, being an external person does not guarantee that the appointed chairperson is skilled or objective.

Unfortunately, no statistics are available with regard to findings of guilty vis-à-vis findings of not guilty on the basis of national statistics being kept of disciplinary hearings being held in the workplace. Even more so, no statistics are available on how many findings of guilt in the workplace are reversed in the CCMA or Bargaining Councils, adjudicating referrals based on unfair dismissals.

It is our experience that findings of guilt far outweigh findings of not guilty in the workplace – often by chairpersons being either unskilled or biased in favour of the employer and disregarding the evidence of the employee.

Pre-deceived Disciplinary Hearings

It is, unfortunately, true that in some cases, employers may consult with chairpersons before a disciplinary hearing and influence them to pursue the dismissal of an employee, even if it is not warranted. This renders the hearing a mere façade and a cover-up. 

Although not always the case, some employers may attempt to terminate the employment of an employee who has fallen out of favour with their superiors at all costs in an effort to save on future salary and legal fees that may arise if the matter is taken to the CCMA or a Bargaining Council.

The unfair dismissal of an employee can really never count the cost and injury caused to an employee who has fallen victim to a pre-deceived disciplinary hearing.

Unfortunately, labour law principles have not developed to the stage where an employee has a direct contribution to be made in who should be the chairperson of a disciplinary hearing. In the public sector, there has been limited move in this direction, but at this stage, it is negligible. The private sector remains unfriendly to any employee who may fall victim to an unskilled or biased chairperson. 

The Unlevel Playgrounds Between Employer and Employee

The unlevel playgrounds between employers and employees in disciplinary hearings is a further matter of concern.

Employees are generally afforded the right to be represented during a disciplinary hearing. But what does this entail? This, more often than not, includes the right to be represented by a co-employee or a union representative.

If this right is carefully dissected, the following appears:

The Legal Team

Medium to large employers often hire legally trained individuals to work in their legal or human resources departments. These employees may hold diplomas, law degrees, or even be admitted attorneys or advocates who choose not to practice independently. They prefer to work in the formal sector as legal or labour advisors.

As a result, employers often have a team of legally skilled professionals, while employees may not. Although internal representatives may represent employers in disciplinary hearings, the employer’s team often has an advantage due to their legal expertise.

Internal Representation  

With regard to the internal representation of an employee by a co-employee, such a right is not worth the paper it is written on. In this regard, co-employees are simply not prepared to “stick out their necks” to represent another employee who is unfortunate enough to be the subject of a disciplinary hearing at the behest of the bosses.

Even if a co-employee may be prepared to assist a co-employee, such a representative typically lacks the necessary skills to represent an employee with regard to the ability to interpret the charge sheet, raising special pleas, leading of evidence, the art of cross-examination and – most importantly – the ability to prepare and argue argument on what should be found on the merits – and what not.

Union Representation

Although union representation offers a degree of protection to an employee from being the subject of a disciplinary hearing, it must be remembered that not all employees are members of a union – and, if not, do not have the ability to appoint a union representative to represent the employee.

Although it cannot be generalised, experience has further shown that some union representatives do not really match the skills of the employer brought to the disciplinary hearing, rendering this right often ineffective.

So, what are the employee rights during disciplinary hearings, and how should these be enforced?

In essence, employee rights with regard to disciplinary hearings are generally the rights to a fair procedure and for fairness to prevail on the merits whenever a decision is to be made on the outcome of a disciplinary hearing. 

Employees are advised to not only accept that the chairperson appointed will, out of necessity, be a skilled or non-biased person and should not hesitate to if there is any reason to believe that an employee will not receive a fair hearing as a result of lack of skills or the biases of the chairperson, raise, question and clarify such before causing the disciplinary hearing to commence.

In combination with the above, although legal representation is not per se allowed in disciplinary hearings, nothing prevents an employee from consulting with a skilled attorney in labour law to assist the employee directly or indirectly with regard to the preparatory matters relevant to a fair disciplinary hearing. 

Why consult with a skilled attorney before a disciplinary hearing?

Employees may have a better chance of success in disciplinary hearings if they seek advice from a labour law attorney beforehand, even if they are not allowed legal representation during the hearing. Employers often recognise the benefit of having a skilled legal professional on the employee’s side, which can result in a less severe outcome for the employee.

This could mean negotiating a plea bargain that does not lead to termination or agreeing to a voluntary separation agreement. The latter typically involves the payment of a separation amount to the employee in combination with no finding against the employee, which, as a result, allows the employee to seek alternative employment on a pre-planned basis and without the “taint” of a disciplinary finding against the employee.

Consulting a skilled attorney in labour law beforehand has an added advantage. Even if the parties do not agree to alternatives, the employer will be less likely to terminate an employee. This reduces the chances of the employee lodging a successful unfair dismissal dispute with the CCMA or relevant Bargaining Council.

SB Lawyers: Labour Law and Employee Rights Experts

In conclusion, the importance of consulting a skilled labour law attorney before a disciplinary hearing cannot be overstated. Their expertise can significantly enhance an employee’s chances of a favourable outcome, whether through negotiation, alternative agreements, or simply by reducing the likelihood of termination. Don’t face a disciplinary hearing alone; seek the guidance of legal professionals who understand your rights and can advocate for your best interests.

Take control of your future today. Contact SB Lawyers, the experts in labour law and employee rights, to ensure your voice is heard and your rights are protected. Schedule your consultation now and secure the representation you deserve.

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