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Dismissal isn't the default outcome of disciplinary action, a lawyer advises

Disciplinary action shouldn't automatically result in dismissal, says specialist labour lawyer Craig Berkowitz.

The state of the trust relationship between the employee and employer is the main factor when deciding if dismissal is appropriate, according to Berkowitz.

Read: The difference between insubordination and insolence (and which gets you fired)

He says the intention of disciplinary action is to determine the facts, establish a timeline and to consider other factors for appropriate sanctions, such as length of service.

Berkowitz adds that employers must always allow employees the opportunity to respond to allegations leveled against them.

Read also: What is constructive dismissal? (and how to prove it)

Many companies favour progressive discipline, a process which opts for corrective responses for employees instead of dismissal, he says.

Berkowitz explains that CCMA arbitration and a review application at the Labour Court are final options for dismissed employees.

Read more: Stories about horrible bosses (and how to handle workplace bullying)

It's incorrect to preconceive an outcome of a disciplinary hearing.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

To say that an offence is a dismissible offence is prejudging the outcome.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

It may be that the same sanction warrants a dismissal in certain circumstances, but warrants something lesser than a dismissal in others.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

The ultimate determinant, in deciding whether dismissal is the appropriate sanction or not, is whether the trust relationship has been irreparably broken down.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

You cannot possibly determine a matter before you've heard both sides of the argument.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

Progressive discipline is when you correct behaviour rather than punish behaviour.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

Dismissal doesn't have to be the default position.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

Length of service and an impeccable service record are some of the factors that employers have to consider.

Craig Berkowitz, Specialist Labour Lawyer at Berkowitz Attorneys

The specialist labour lawyer shared his insights and helped callers who phoned in with their personal cases.

Listen to the expert advice during the World of Work feature:


This article first appeared on CapeTalk : Dismissal isn't the default outcome of disciplinary action, a lawyer advises


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