When an employer dismisses an employee, they must prove the dismissal was fair. This means that the employer must have followed a fair procedure, and the employee was guilty of misconduct. Conducting a proper pre-hearing investigation is one of the most important steps in ensuring a fair disciplinary procedure. The investigation should be done to establish if there is an actual case against the employee.
A pre-hearing investigation is, therefore, simply the process whereby the employer gathers all the facts and details about an incident before deciding how to respond.
The importance of a pre-hearing investigation
A proper pre-hearing investigation is essential for ensuring that a dismissal is fair. If an employer does not conduct a formal investigation, they may dismiss an employee who is innocent of misconduct. This could lead to CCMA referrals and financial losses for the employer.
The case of Assmang Limited-Blackrock Mine is an excellent example of what can happen if an employer does not conduct a proper investigation. In this case, the employer dismissed an employee for dishonesty and misrepresenting facts. However, the employee had not done anything wrong. The employer had simply relied on a mistake made by the employee’s attorney.
The Labour Court found the dismissal unfair because the employer had not investigated the alleged misconduct properly. The Court said that it was “startling” that the employer had dismissed the employee based on a mistake made by the attorney.
How to conduct a proper pre-hearing investigation
Employers should follow these key steps when conducting pre-hearing investigations. They are:
- Start the investigation without delay. The investigation should be started as soon as possible after the misconduct allegations are made. This will help to ensure that the evidence is fresh and that witnesses cannot forget what they saw or heard.
- Interview all the relevant parties. This includes the employee accused of misconduct and any witnesses who may have seen or heard something relevant to the allegations.
- Gather all the relevant evidence. This includes witness statements, documents, and other information pertinent to the investigation.
- Deciding whether enough evidence links the employee with the misconduct. If there is insufficient evidence to link the employee with the misconduct on a balance of probabilities, the employer should not proceed with disciplinary action.
- Be fully prepared before the hearing.
Be fully prepared before the hearing.
In addition to conducting a proper investigation, employers should be fully prepared before the disciplinary hearing. This includes having all the relevant evidence to prove the case against the employee and being able to answer any questions the employee may raise.
The following must also be addressed at the hearing:
- Proof of the offence. The employer must be able to prove that the employee committed the misconduct that they are accused of.
- Existence of the rule. The employer must show that the employee was aware of the rule they are alleged to have broken.
- Reasonableness of the rule. The employer must be able to show that the rule was reasonable and that it was applied fairly.
- How similar misconduct was dealt with in the past. The employer should consider how similar past misconduct has been dealt with when deciding on the appropriate disciplinary action.
We understand employers may be pressured to dismiss an employee quickly, but taking the time to do things right is essential. A proper investigation will help to ensure that your dismissals are fair and that you avoid the risk of an adverse award.