Labour Relations Act, 1995 (Act No. 66 of 1995)Codes of Good PracticeDismissal based on Operational RequirementsSchedule 8Part D - Misconduct11. Fair procedure |
| (1) | The purpose of a fair procedure is to ensure a genuine dialogue and an opportunity for reflection before any decision is taken. |
| (2) | A fair procedure is one in which an employee has been given an adequate and reasonable opportunity to respond to the allegation of misconduct. |
| (3) | An investigation or inquiry does not have to be formal. Its nature should be appropriate to the circumstances, including the type of allegation and the nature and size of the employer. |
| (4) | Usually, before a decision is taken to dismiss, the employee should be— |
| (a) | notified of the allegations of misconduct, preferably in writing; |
| (b) | given an opportunity within a reasonable period of time to prepare and make representations on both the misconduct allegations and the appropriate sanction; |
| (c) | allowed the assistance of a fellow employee or trade union representative; |
| (d) | where reasonably possible, provided with the opportunity to converse in a language that the employee is comfortable with. |
| (5) | Allegations of misconduct should be made available or explained in sufficient detail to allow the employee to understand them. |
| (6) | In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with some or all of them. It should, however, be recognised that the employer may be obliged to justify non-compliance if the employee refers a dispute about the procedural unfairness of the dismissal. |
| (7) | Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. |