Changing the Course of Pre-dismissal Procedures in South Africa

Pilots are acutely aware of the immense dangers of plan continuation bias (ie, the unconscious cognitive bias to continue with an original plan in spite of changing conditions), where – once committed to an agreed course of action – role-players find it difficult to respond to stimuli or environmental conditions that require a change to the plan. A study of 37 air travel incidents investigated by the National Air Transportation Safety Board revealed that almost 75% of tactical decision errors related to choosing to continue a planned course of action despite strong clues suggesting a change. In the workplace, plan continuation bias in the context of pre-dismissal processes may have less directly measurable impacts, but the effect of persisting with bad practices can cause turbulence.

Like many countries, South Africa’s employment law regime requires employers to provide a valid reason for dismissing an employee and a fair preceding procedure. Compliance with this procedural element absorbs considerable management time when dismissing an employee but attracts little attention during analysis of workplace practices. Employers follow existing disciplinary processes because these are prescribed by company policies or because lawyers advised them to do so. The time and friction costs inherent in pre-dismissal processes warrant a greater commitment to best practices.

There are few compulsory workplace policies prescribed by law in South Africa and no general legal obligation compelling all businesses to implement disciplinary policies. Policies provide clarity on employer expectations across workplaces, teams or countries, but those that unnecessarily restrict employer flexibility or impose obligations greater than required by law are counter-productive. Organisations that understand the difference between minimum immunity legal requirements and the value proposition offered via the exercise of sound managerial discretion have an advantage over businesses that adhere to outdated and impractical workplace processes.

Employers should critically consider whether their businesses truly benefit from a disciplinary policy. Where the policy is due to collective bargaining, employers should consider the desirability of terminating it when engaging in matters of mutual interest. Various employers can attest to the benefits of regaining greater control over amending disciplinary processes without the horse-trading inherent in typical management/trade union negotiations.

Employers who have implemented disciplinary procedures via a workplace policy should determine whether it is still fit for purpose. Very few are. Policies should be amended where there is an objective need for such a policy or terminated where the workplace can function better without one.

Advising businesses to operate without disciplinary policies might sound like heresy to human capital practitioners and managers fearful of the consequences. Will they be inundated with requests to explain basic processes to team leaders while trying to secure a level of consistency across the business? Will the business inadvertently fly through a storm at the employment tribunal when existing disciplinary policies are cancelled?

But doing away with such policies will not see the supervisor in one office forgiving staff for all work trespasses while their counterpart in another dismisses employees who fail to sing the corporate song. There remain many better ways to align diverse and decentralised leadership teams responsible for managing dismissal processes.

Employers could consider the benefit of using vehicles other than disciplinary policies to communicate sound practices. Management training is an obvious way to instruct leaders on the desired approach, with online training programmes standardised and implemented across locations.

Policies should be used where they serve a purpose and discarded where they do not. Companies easily introduce a new policy on whistle-blowing or data privacy but are protective about ditching old disciplinary policies. Employers happily change a work-from-home policy but would not dare touch their disciplinary policy.

Policies are useful to communicate standards, but that message can be conveyed in many less restrictive ways. A documented workplace policy, on pre-dismissal procedures or otherwise, is not the gold standard of communication and is more cumbersome to change or terminate.

The basic tenets of a fair pre-dismissal procedure are advising the employee of their employer’s dissatisfaction, affording the employee an opportunity to prepare and provide a response to the allegations, permitting the employee representation by a colleague or trade union representative (where applicable), considering the employee’s submissions before making a final decision on the matter, and then providing the employee with reasons for the outcome where the employee is dismissed. Layering further employee rights into these foundational steps is neither required for procedural fairness nor conducive to sound employee relations.

An obsession with arbitration-like hearings pits employees against one another, ruins relations and reputations that could have endured, creates an adversarial environment, and takes companies further away from ensuring mutually beneficial outcomes. The alternative is not that employers jettison all unilateral termination processes and negotiate exit packages with those employees who have caused the business serious harm; rather, there is magic in the latitude to consider appropriate options to terminate employment relationships based on the unique facts of each matter without the limitations of draconian pre-dismissal processes.

There are countless indicators that a new pre-dismissal plan is required. South Africa’s labour court has handed down judgments critical of the cottage industry created to manage pre-dismissal processes. Throughout the years, judges have provided reminders that legal requirements for procedural fairness do not include the accoutrements of a criminal trial.

Charge sheets, requests for further particulars, cross-examination of witnesses, discovery of documents, and similar elements are not necessary in the quest for a fair pre-termination process. Yet still lawyers try to interdict disciplinary hearings, employers run hearings for weeks, and employees play truant to postpone a hearing.

Like pilots suffering from “get there-itis”, companies are too committed to the pre-dismissal process to which they have become accustomed to be able to respond to environmental conditions at odds with their fixed reality. Any employer who is the custodian of pre-termination policies should critically consider the flight path determined by such policies and decide whether it will get the business and those onboard to the desired destination.