Tag: disciplinary hearing

In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment after he professed his love for a receptionist.

A recent judgement by the Labour Court addresses the role that incapacity can play when an employee is charged with misconduct, and whether an employer is required to exclude the possibility of incapacity in these circumstances.

The cost to the employer can include hearings at CCMA, Labour Court and Labour Appeal Court as well as back pay.

Employers are not entitled to dismiss the employee without a hearing.

Labour relations and the fairness standards for dismissal of an employee in South Africa have long been centred around the formality of disciplinary or incapacity enquiry processes, and the tradition of the usage of these processes has built up an expectation that they are mandatory.  

A common occurrence in the employment relationship is for an employee to resign in the face of disciplinary action by an employer, and South African courts have previously accepted that as long as an employee resigns with immediate effect, the employer has no power to compel the former employer to go through any disciplinary process.  

Regardless of whether one is faced with a court hearing, a disciplinary hearing or an arbitration hearing it is always very difficult, and often impossible to win without witnesses.

The Labour Court in a recent judgment, Mthobisi Mthimkhulu v Standard Bank of South Africa (J928/20) (18 September 2020) considered whether an employee who has been found guilty of serious misconduct can avoid the ultimate sanction of dismissal by resigning before the employer imposes the sanction.

There are a number of important issues relating to disciplinary investigations.

Consistently poor conduct normally reflects a management that is either unskilled or unwilling to manage employee conduct.