As an employer, few things frustrate you more than getting dragged to the CCMA by a dismissed employee. You probably dismissed the employee for a good reason and now the employee either wants his job back, or wants compensation for being dismissed unfairly.
Before we tell you how to improve your chances at the CCMA against the dismissed employee, we will briefly explain possible reasons for unfair dismissals.
The dismissal of an employee is only fair if:
- There is a good reason to dismiss the employee (substantive fairness); AND
- A fair procedure was followed before the employee was dismissed (procedural fairness).
SUBSTANTIVE FAIRNESS:
Few dismissals fail this test, however, dismissal is a fair sanction only for serious misconduct, or multiple forms of misconduct (irrespective of the seriousness thereof) within a certain (fair) period.
The employee must be aware of the employer’s rules and regulations of the misconduct, especially when unique rules and regulations apply within the employer’s business. That is why it is so important to have an Employment Policy, which specifically addresses rules and regulations relating to Absenteeism, Annual Leave, Political slogans and badges, Safety, etc.
PROCEDURAL FAIRNESS:
Most dismissals that are found to be unfair, are unfair due to an improper or unfair procedure that preceded the dismissal.
Employers, in general, just want to get rid of “problem employees” as soon as possible, but the Law requires a fair procedure before an employee can be dismissed.
In short, the employee must be granted a fair opportunity to state his/her side of the alleged misconduct, before he/she is dismissed.
HOW TO WIN A CCMA CASE:
- Make sure that the misconduct is serious enough to warrant a dismissal, or that the employee committed multiple forms of misconduct within a relative short period of time (6 – 12 months);
- Give a proper notice to the employee, to inform him: (a) of the alleged misconduct; (b) of the time and date of the disciplinary hearing; (c) his rights at the disciplinary hearing; (d) that the hearing will continue in his absence if he/she doesn’t attend; (e) that the misconduct is of such a nature that could lead to his/her dismissal, if found guilty.
- The employee must have at least 72 hours to prepare for the disciplinary hearing.
- Conduct a proper disciplinary hearing:
- The chairperson must be objective and unbiased (preferably someone independent from the employer or someone with little or no knowledge of the misconduct);
- The employer must state its case against the employee, and the employee must have a chance to state his case;
- Both the employer and employee must have an opportunity to cross-examine each other and the witnesses;
- The chairperson must consider the matter, make a ruling, and if the employee is found guilty, the employer and employee should both have an opportunity to submit aggravating or mitigating factors;
- The chairperson must then, after considering the aggravating and mitigating circumstances, impose a sanction for the misconduct.
- The complete disciplinary hearing must be recorded or documented.
- The employee must be notified of the outcome of the disciplinary hearing, together with reasons for the verdict and sanction.
By following the above procedure, with the documentation to support each step, you can almost guarantee yourself a win at the CCMA.
You don’t need an attorney to dismiss employees fairly, and you don’t need an attorney to represent you at the CCMA, but if you are unfamiliar with the labour laws, we are available to guide and advise you, or if you so wish, relieve you from the frustration and handle the whole process on your behalf.