HR 101 - WHAT TO DO WHEN . . . . Out with the Old, In with the New – Part 3

ARTICLE 44

WHAT TO DO WHEN . . . . Out with the Old, In with the New – Part 3

By Nikki Viljoen of Viljoen Consulting CC October 2009

So following on from last time – let’s have a look at some of the other changes that were made to the Act that received a typical ‘knee jerk’ reaction.  They are (but not limited to).

“Employees are entitled to a disciplinary hearing even where they are accused of being on an unprotected (illegal) strike.”

For me this is just logical – I mean how can you discipline anyone for anything without a proper disciplinary hearing.  The whole deal about this however is that as the employer, you have to prove that the strike was unprotected (which usually is not very difficult at all) and then you have to ensure that the staff member was actually on strike and not on ‘sick’ leave or even ‘annual’ leave.

During the apartheid era, this was often used as an excuse to ‘get rid’ of staff that you no longer wanted around.  Nowadays the rule of “innocent until proven guilty” applies.

In fact whilst I am on the subject of disciplinary hearings – remember this.  If your employee is caught say, stealing and you have them arrested, or they are arrested and end up going to jail.  That’s not the end of the story – you still have to go through the motions of having a disciplinary (in abstentia), where they need to be found ‘guilty’ and then dismissed.  This would also apply to someone who has gone AWOL (absent without leave) and who never ever comes back to work.

The reason for this is, if you don’t hold a disciplinary, find them guilty, and summarily dismiss them, the reality of the situation is that you could be forced to re-employ (and pay all the back pay) when they are released from jail and want to come back to work or they suddenly remember that they have to come back to work after being AWOL. 

So, go through the motions, I know it is a pain in the rear end, but it certainly is less than the pain that you will feel if you don’t follow the correct procedures and then they come back and demand their jobs back.

Next time we will have a look at some of the other changes that were made to the law.

 Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za