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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14557
Experience:  L.LB (UOVS)
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If an employee, after months of verbal abuse, tells an employer

Resolved Question:

If an employee, after months of verbal abuse, tells an employer to do the job himself, is this classified as gross insubordination? Can he be dismissed immediately? Can he then be called in for a hearing, without any warning letters, or notice in writing of the hearing?
Submitted: 8 months ago.
Category: South Africa Law
Expert:  WCLawyer replied 8 months ago.
Good day.

1. In my opinion, that could constitute insubordination, but I doubt whether this will qualify for gross insubordination. I am also of opinion that this is probably not a dismissable offence.

2. There is no situation whereby an employer can conduct a disciplinary hearing without proper written notice. The procedure that an employer would have to adhere to in order for a dismissal to be procedurally fair is as follows: (you can test the conduct of your employer against this)

The South Africa Labour Legislation require that, before you can dismiss an employee, it must be for a fair reason, following a fair procedure. The Department of Labour has issued a Code of Good Practice which stipulate the minimum requirements for fair procedure and a list of fair reasons. This can be accessed at http://www.workinsolutions.co.za/downloads/Code%20of%20Good%20Practice%20-%20Dismissal.pdf

Basically, with regard to fair procedure, it normally entails a disciplinary hearing. In order to conduct a disciplinary hearing, you would have to give the employee notice of such a hearing. The notice must contain the following information:

1. The date, place and time of the hearing.
2. The charge against the employee
3. The employees rights, which would include:
• The right to present evidence.
• The right to present witnesses
• The right to cross examine the witnesses of the employer and the evidence of the employer
• The right to be represented by a co-worker or a union representative

At the hearing itself, the best practice would be to get an expert in to assist you, preferably someone impartial, however, if the cost of this is an issue to you, then you can ask someone to chair your disciplinary hearing, however, it is imperative that such a person exercises his judgment impartially.

A hearing will normally follow the same procedure as a trial at court, just a lot more formal. The employer will be given an opportunity to prove the charge and the employee will be given an opportunity to state his/her side of the story. Both employer and employee are allowed to cross-examine each other's versions as well as the versions of each of the witnesses.

Once the presiding officer has come to a decision, the employer and employee has to be informed of the decision in writing.

It is imperative that the employer as well as the chairperson take detailed notes of the proceedings and to store this for at least a year.

Note that this is not the only procedure, but this is the most appropriate procedure in most instances. The Act does allow for an even more informal procedure, where the employer both chair the hearing and act as prosecutor, however, this should only be employed where the issues are not complex.

3. If your employer did not adhere to the above and you have been dismissed, you can proceed to the CCMA or your bargaining council to declare a dispute based on the unfairness of your dismissal. You can be reinstated, or receive an award, which is typically between 4 - 6 months' remuneration.

I hope this answers your question, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14557
Experience: L.LB (UOVS)
WCLawyer and 2 other South Africa Law Specialists are ready to help you

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