It is quite scary to notice that some Employers do not investigate grievances or incidents, that could possibly lead to disciplinary steps to be taken. Is it a case of an Employer who makes up his mind beforehand or can the Employer just not be bothered to go through an investigation before instituting disciplinary steps? This is by the way also necessary in cases where Employees may be dismissed for incapacity, or poor work performance.
It is an absolute necessity for the Employer before any process is started, to investigate the circumstances and facts of the incident, person, misconduct, whatever it might be.
Before anything else is done, one has to identify which Employee(s), and any witnesses are involved.
In case of misconduct, the Employer must always ask himself if there is a valid rule or standard which the Employee has broken. Here the Basic Conditions of Employment Act, as well as the Employee’s contract of employment, and the Employer’s reasonable instructions, are important.
At this point, the Employer must start a formal investigation. This can be done by the Employer himself or the Employer can appoint an objective person, or legal firm, to investigate the misconduct, possible incapacity, or poor work performance.
Should the Employer choose to do the investigation himself, keep the following in mind:
MISCONDUCT
1. Are there any witnesses who saw the misconduct happening?
2. Are there any documents that prove the misconduct?
3. Remember that it is not a good idea to take disciplinary steps against anyone if it is your word against his.
INCAPACITY
4. If medical, the period the Employee has not been and will not be at work, as well as if there is another position where the Employer can accommodate the Employee.
5. In case of poor work performance, the proof that the Employee had the necessary training and assistance in the workplace, as well as the (fair) evaluations of the work done by the employee.
After the Employer is satisfied as to who is involved and that the necessary proof exists, the Employer can continue with the specific process, like taking disciplinary steps and drafting a charge sheet. The charge must be of such a nature that the employee can easily identify the incident(s) and circumstances.
Should the Employer wish to ensure that an investigation of this sort is truly objective, I would really suggest the Employer appoints a Law Firm to do same.
Elzahn Bloem
09 April 2019