Five things every small business should do before dismissing an employee

The new Code of Good Practice: Dismissal recognises that small businesses may not have the time and resources to conduct elaborate, formal disciplinary hearings when an employee is accused of misconduct. An employee’s right to a fair process does not disappear however, so it’s important to follow the right procedure.

1. Establish the facts before making the decision

Do not dismiss first and investigate afterwards. You do not necessarily need a lengthy investigation, but you should have a reasonable understanding of what happened.

2. Tell the employee what the problem is

The employee must understand what conduct is being questioned. Avoid vague allegations, be specific. The more serious the allegation, the more important it is that the employee understands what they are required to answer to.

3. Give the employee a genuine opportunity to explain

This is probably the most important part of the process. Do not simply inform the employee of the allegations and announce that they are dismissed. Ask for their explanation and, importantly, listen to it.

There may be mitigating circumstances you were unaware of. There may also be a completely different version of events. Fairness requires the employer to consider what the employee says before making the decision.

4. Consider the appropriate sanction

Even if misconduct is established, dismissal is not automatically the correct outcome.

Consider:

• the seriousness of the misconduct
• the employee’s disciplinary history
• previous warnings
• length of service
• the circumstances surrounding the misconduct
• whether the employee showed remorse
• whether there are mitigating circumstances, and
• whether the employment relationship has been irreparably damaged.

The question should not simply be whether you can dismiss, it should be whether dismissal is a fair and proportionate response in the circumstances.  

5. Keep a record

This does not mean creating an enormous disciplinary bundle. But keep a written record of:

• the allegation
• the relevant facts
• the employee’s explanation
• any mitigating circumstances
• your findings
• the reason for the sanction imposed.

If the matter subsequently ends up before the CCMA or a bargaining council, the employer will need to explain how and why the decision was made.

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