The new approach renders, amongst other things, the following features of a disciplinary
process inappropriate:
- A so-called summons to appear
- Notification of pre-enquiry rights
- The request to plead either guilty or not guilty
- Evidence-in-chief, cross-examination and re-examination
- Credibility and reliability findings
So what replaces the above features? During the workshop, we will identify and demonstrate the decriminalised new approach, based on an adequate and reasonable opportunity to respond, a genuine dialogue and an opportunity for reflection before a decision is taken. However, the new approach to misconduct goes much further than the above and requires all role players in the misconduct procedure to, furthermore, create a workplace where the following, amongst others, are of importance:
- The establishment of operational workplace rules, the compliance of which contributes to efficiency and productivity
- Ensuring that workplace rules are both valid and reasonable – during the workshop, we will specifically deal with the requirements to be met in this regard
- Determining the actual/potential harm/damage caused by a contravention of a workplace rule or standard
- The respective new roles and obligations during misconduct processes of employees, their representatives and representatives of the employer
Whichever way the recent statutory and case law developments are considered, it is apparent that, when determining whether or not dismissal is an appropriate sanction, of paramount importance is the nature and seriousness of the misconduct and the effect on the business – during the workshop, we will provide you with insight into, firstly, the onus and test that employers will be required to comply with to justify their viewpoint that the continued relationship is intolerable and, secondly, the elements of the test to determine the effect on the business of the employer, namely, whether or not the dismissal was a sensible operational response to risk management.
Employer-employee-specific workplace material to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
Sample employment contracts covering various categories of employees, such as permanent fulltime employees and scheduled employees, appropriate policies, practices and procedures, forms currently used and appropriate collective agreements.
Approach to be adopted during the workshop
The workshop will commence with an analysis of the current approach adopted at your workplace, followed by an audit to determine the level of your non-compliance with the new requirements. Thereafter, a joint action plan will be developed to give effect to the issues identified in the audit – lastly, and most importantly, at the end of the workshop you must be in a position to initiate what is required of you to implement the action plan to ensure the required compliance levels.
