Grievances

Grievance procedures are an opportunity to prevent disciplinary action but cannot be used to stay, influence, or substitute the disciplinary procedure. The two are separate and must be instituted and completed, each on its own.

The grievance procedure is where it all starts.

1. When there is a conflict, the employee may bring it to your attention and raise a grievance.
2. For an employee who is the subject of unfair or discriminatory treatment, including harassment and victimisation, the first port of call is the grievance procedure.
3. If the employer causes the grievance procedure to be dysfunctional, the employee is entitled to go to the CCMA, for help.
4. The longer the delay in bringing the grievance the less weight it carries.
5. A grievance based on false allegations constitutes Misconduct.
6. Incompatibility and eccentricity are not misconduct. A grievance related to this justifies an investigation into the capacity of both the grievant and the target.
7. Senior employees should know better than juniors and setting a poor example warrants a harsher sanction.
8. The employee has the right to be heard. Any dismissal without having a fair opportunity for him/her to say their say, and be seriously heard, is unfair.
9. Victimizing or harassing an employee for exercising a right are unfair labour practices and amounts to unfair discrimination.
10. Refusing to break the law is not misconduct, it is a duty.

Click through to the Grievance templates

Warnings

Verbal and Written Warnings may be issued by the employee’s direct superior.

1. Usually, warnings are issued for the same, or similar, transgressions being repeated.
2. Serious misconduct, such as any form of abuse, could lead to a Hearing and summary dismissal (and abuse may get the employee some jail time).
3. “Poor Performance” requires the full warning procedure and you can’t just go straight to a final warning, no matter how frustrated you’re feeling.
4. Keep all records of conversations with employees regarding their performance.
5. Be sure to keep the fuss and gossip around the matter to a minimum.
6. “Breach of trust” is not a valid misconduct so you cannot use it as the charge.  Breach of trust is the result of the misconduct. Employers cannot claim breach without leading evidence.
7. Ill-health and mental incapacity are not considered reasons to implement the warning procedures.
8. There are two categories of transgressions, i.e. minor offences and serious offences. Your response should mirror:
   1. The nature or severity of the offence;
   2. The number of times it happened;
   3. The sanction that your Code of Conduct prescribes for that offence.

Click through to the Warning templates

Disciplinary Process

The Disciplinary Process is used when the Grievance procedure has been unsuccessful.

1. Never institute proceedings in anger.
2. If misconduct is the reason for discipline never substitute it with either of the other two valid reasons for dismissal:
   1. Retrenchment, or
   2. Poor performance (ill health or sub-standard work).
3. Use suspension sparingly and only to prevent interference with evidence or witnesses.
4. Suspension without pay is a sanction, not a disciplinary step.
5. Give the employee at least 24-hours notice of a hearing, with written charges sp that they can plead and prepare a defence.
6. Conduct that brings your ECD business into disrepute after hours while off-premises is cause for disciplinary measures.
7. A hearing does not need to be too formal as long as the principle of audi alteram partem (hear the other side) is adhered to.
8. The person selected to ‘hear the other side’, or chairperson, may not have prior knowledge of the facts of the matter nor have an interest in the outcome of the matter.
9. Breach of trust is not a charge; it is a consequence or result of misconduct.
10. Be consistent in applying procedure and sanction. Use your Code of Conduct to establish the sanction.

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Appeals

If the Chair of the Disciplinary Hearing rules that the employee may appeal, then he/she may do son in writing and must state the grounds for the appeal.

1. Limited Appeal – Factor (A) or a written submission, is usually based on procedural mistakes by the Chair such as:
   1. Applying too harsh a sanction.
   2. Not hearing mitigating circumstances.
   3. Ignoring or misinterpreting evidence and bias.
2. Full Appeal – Factor (B): New evidence that justifies a Full Appeal.

If both factors (A) and (B) are present, a new hearing may be justified under a different Chairman.

1. A Full Appeal Hearing shall be chaired by:
   1. Your Labour Consultant (recommended).
   2. Any other person from Management, other than the person who acted as Chairman at the previous Disciplinary Hearing.
   3. At the Full Appeal Hearing the Employee has the same rights as at the Disciplinary Hearing.
2. A Limited Appeal (in writing only) may be considered by the Employer who can submit it to the Chair of the Disciplinary Hearing for his/her comment

Click through to get the  templates