Employee engagement has been recognized by the world’s top performing organisations as a force that drives business. Engaged employees are more productive, customer driven, profitable and loyal. All of these factors play a significant role in financial success, as they directly impact on customer satisfaction.
In dismissal cases, the onus to prove dismissal lies with the employee. The employee has to show that the employer made his or her continued employment intolerable and that there was no other option but to resign.
This is known as a constructive dismissal and as many employees have found out, it is not so easy to prove. Most organisations today have a grievance procedure and the employee will have to explain why he or she did not make use of this procedure or approach a senior manager or director to explain their situation.
Once a dismissal has been proved then the onus falls on the employer to prove the fairness of the dismissal. There are two aspects to this fairness: procedural fairness and substantive fairness.
The employer must show that a fair procedure was followed and depending on the nature of the misconduct, the employee was counselled, coached and given an opportunity to correct his or her behaviour. In cases of serious misconduct the employer must also show that the employer was given a fair hearing and that the employee was indeed guilty of the misconduct for which he was charged.
Substantive fairness can be illustrated in the question “Does the punishment fit the crime?” The chairperson of the disciplinary hearing must make his or her decision regarding guilt or innocence, based on the facts presented in the enquiry.
Failure to prove
Here lies the problem. If the employee’s manager (initiator, sometimes known as the complainant) fails to investigate, prepare or present his or her case properly, the facts will not emerge. The chairperson must then give the benefit of the doubt to the employee.
Unfortunately this can have far reaching consequences, especially where the employee is guilty of wrong doing and is able to get away with it. This sends the wrong signal to other employees and can lead to erosion of discipline within the workplace.
No matter what the size, businesses need managers who can investigate an incident, who know how to prepare for an enquiry or hearing, who know how to lead evidence and who can cross-examine witnesses competently.
Once guilt is proved, then the chairperson needs to consider a range of factors before deciding on a substantively fair sanction.
For the process to work well and to be seen to be fair all the role players need to be properly trained – the initiator, the chairperson, the employee representative (shop steward) and last but not least, the representative from the HR department.
Instead of running the risk of having cases overturned and then spending money on legal fees, employers should rather invest in disciplinary training for their key personnel. That way everybody knows where they stand and misconduct will not be tolerated.
For further information on disciplinary training courses available from B&A click here.