Hennie van Graan, Senior Partner at WHM Labour Law Advisors

//Hennie van Graan, Senior Partner at WHM Labour Law Advisors

Hennie van Graan, Senior Partner at WHM Labour Law Advisors

2019-04-02T09:07:12+00:00
  1. A medical certificate stating “medical condition” you do not need to pay out.
  2. A medical certificate stating “according to my opinion” you do not need to pay out.
  3. You can investigate any suspicious medical certificate.
  4. If you doubt the authenticity of the medical certificate you may ask for a full sworn affidavit from the doctor stating the exact capacity problem of the employee.
  5. Any person absent for three or more days without proof should be disciplined.
  6. Any pattern forming absenteeism can, with progressive discipline, lead to the employee’s dismissal.
  7. Never accept a typed resignation letter. It should always be handwritten by the employee him-/herself.
  8. Never write an affidavit, statement or any report on behalf of the employee. It should always be handwritten by the employee him-/herself.
  9. If you do offer a probationary contract, ensure that your performance management systems are in place. This can otherwise be seen as an unfair dismissal.
  10. Do not offer fix term contracts more than twice. You are creating a reasonable expectation of permanent employment.
  11. REMEMBER: The burden of proof is always that of the employer. The employee does not need to prove anything.
  12. REMEMBER: The employee can never dismiss him-/herself. You must always follow due process or have a hearing.
  13. REMEMBER: You should always have a disciplinary hearing even though you caught the employee stealing from you.
  14. REMEMBER: Always formulate your charges on your notification/charge sheet for the employee – in minute detail – to avoid any further litigation.
  15. Never serve a notification for a disciplinary hearing and not follow it up to ensure that an enquiry is conducted.
  16. Never apply different sanctions to different people for the same transgression.
  17. Never start with disciplinary action and stop in the middle of it – with no conclusivepaper work or reasons.
  18. Never transfer your ownership of maintaining discipline in your area of responsibility to the Human Resource department.
  19. Never allow the employee, who is served with a notification for a disciplinary action, not to understand the contents thereof.
  20. Never charge an individual with an offence and lead evidence that is not exactly connected to the charge.
  21. A probation clause in your employment contract without a performance management and performance appraisal system is worthless.
  22. An employment contract is for the protection of the employer.
  23. An employee working eight hours a week with an employer is permanent.
  24. If the employee’s work is subject to the control or direction of another person an employee is permanent.
  25. If the employee’s hours of work are subject to the control or direction of another person an employee is permanent.
  26. If the employee has worked for the employer an average of at least 40 hours per month over the last three months the employee is permanent.
  27. If the employee is economically dependent on the other person for whom that person works or renders services the employee is permanent.
  28. If the employee is provided with tools of trade or work equipment by the other person the employee is permanent.
  29. An employee is absconding from work if he/she is absent for three or more days. The AWOL procedure must be followed.
  30. The big five dismissible offences areassault; any act of dishonesty; gross negligence; gross insubordination and absconding.
  31. Ensure that your charges are always correctly formulated by using the principle of What, When, Where, Why/How and Who (if needed). EXAMPLE: WHAT: sleeping on duty; WHEN: on the 15th of January 2015, at 12h45; WHERE: in the store room ofxyz hotel; WHY/HOW: by making a bed under the desk or lying in a relaxed body posture and closed eyes on the sofa; WHO: will be applicable only if there is more than one alleged offender.
  32. It is also of great importance to ensure that when involved in disciplinary hearing you have sufficient evidence to prove your case.
  33. NEVER USE HEARSAY EVIDENCE IN ANY DISCIPLINARY ACTION. Hearsay evidence is evidence which is tendered by a person who recounts what was not observed or perceived through one of the persons’ own sense, but what was heard from someone else (the originator).
  34. The manager must always explain to the employee for what and why he/she is charged for.
  35. Discipline also has the largest influence when it is given immediately after the offence. If a worker arrives late for work on a Monday it is senseless to warn him about it onthe Wednesday.
  36. Discipline is always impersonal: discipline the behaviour, not the person.
  37. The fact that a prior warning has lapsed does not mean that prior misconduct cannot be taken into account in assessing appropriate penalty for later misconduct. Therefore, the retention of warnings – even after expiry – is important; it all forms part of the employee’s previous disciplinary record.
  38. Disciplinary action should always be substantively and procedurally fair. The disciplinary procedure must always be followed rigidly (Procedural Fairness). The sanction applied to the offence must also be suitable and correct in the light of the nature and circumstances of the specific offence (Substantive Fairness).
  39. Any evidence in disciplinary action must be relevant. The basic rule is that, in order to be admissible, evidence must be relevant.
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