We have recently been successful on behalf of a client in the CCMA Johannesburg where an employee has lodged a matter against our client due to dismissal for misconduct.
During arbitration proceedings in the CCMA, it was proven that there was a blatant breach of the code of conduct of our client and the CCMA found in our client’s favour that the dismissal was substantively and procedurally fair.
Having a sound code of conduct and a disciplinary code in place as an employer protects both the employer and the employee. Our labour law provides that a dismissal for misconduct must be substantively and procedurally fair.
What does this mean?
Substantive fairness will look at the rule itself – inter alia, its existence, fairness, its application and the possible sanction in respect of a breach of the rule.
Procedural fairness will look at whether the procedure for the pre-disciplinary hearing, the disciplinary hearing itself and the outcome has been fairly dealt with.
Thus, it is recommended that an employer has a code of conduct and discipline in place that clearly states what the rules of conduct are (so that there is no argument whether the rule exists) and the possible sanctions if such rules are breached – for example, a written warning or dismissal.
Your attorney can assist you in drafting the code of conduct and discipline for your business, as well as provide the employer or employee with guidance on the substantive and procedural fairness elements whether there is a code of conduct and discipline in place or not.