After a preliminary investigation shows there is cause to initiate a disciplinary enquiry, the next step in the process is to issue notice to the employee(s) concerned. This is often where problems start for employers.
First of all, only the charges brought against the employee may be used by the chairperson in making his finding. You cannot charge an employee with one thing and then dismiss him for something else! For example you cannot charge an employee with failing to follow procedures, and then find him guilty of dishonesty. If during the enquiry it emerges that the employee has been dishonest, then fresh charges should be issued and the enquiry re-convened at a later date.
Beyond reasonable doubt is the test used in criminal courts, whereas the balance of probabilities is used in disciplinary enquiries. Therefore, avoid using charges which have a criminal base. For example, don’t charge an employee with ‘theft’; rather charge him with ‘unauthorised possession of property’. Theft only occurs when the thief has actually left the owner’s premises.
When unsure of a charge, include an alternate. For example, ‘unauthorised possession or, alternatively, attempted removal of goods without authority’. The charge should begin with a general statement, followed by specific detail relating to the incident. This should inform the employee of the nature of the charges and give him enough information to be able to prepare a response. For example ‘Unauthorised possession of company products in that at 5 o’clock on 25 April when stopped at the security checkpoint you were found to have 2 items of product xyz in your kitbag.’
More than one charge may be brought against the employee, especially when the transgression involves several breaches of the employer’s disciplinary rules. For example, arising out of a single incident, an employee can be charged with:-
- absence without authority; and
- failure to notify the employer of the absence.
The charges must be carefully thought out and properly worded. Most importantly, if you are not sure of what the charges should be, take advice before you issue notice of an enquiry.
Last but not least, there are some traps to avoid when issuing the notice. The employee must be given a reasonable time to prepare for the hearing. Most employers allow 48 hours but more time could be necessary if it is a requirement of your disciplinary procedure. Failure to do this can render a dismissal procedurally unfair. Most employers use standardised Notice of a Disciplinary Enquiry forms, which outline the employee’s rights and provide details of the time, date and venue for the enquiry. If you do not have such a form, I suggest you acquire one before you run into problems!
When issuing the notice, have a witness present and make sure that the notice is issued to the employee in person. You cannot, for example, issue the notice to a shop steward and ask him to pass it on to the employee. An employer found out the hard way that this can render the enquiry procedurally unfair if the employee claims he never received the notice! Also make sure that the charges are explained to the employee, especially, if he is unable to read English.
If a dismissal is found to be procedurally unfair, even if it is substantively fair, the employer is going to be required to pay the employee compensation from the time of dismissal to the date of the arbitration – usually 2 to 3 months pay. Why reward undeserving people? Rather do the job properly the first time and take the necessary care when chairing disciplinary enquiries.