It might be your business, but you still need to follow clear and specific rules, writes Hendri Pelser

Many business owners believe they have the right to hire and fire at will. This is not the case and South Africa has specific laws governing the rights of workers and the processes that must be followed, especially when getting rid of someone.

For this reason, Caron Hall, from the SME human resource consultancy Thehrhub, advises business owners to take care when making an appointment.

Caron says business owners should take their time when filling an existing position. "When someone resigns there is often a knee-jerk reaction to replace that person.

"Rather, you first need to rethink the position and the role this person fills."

Caron says evaluating a position will help the decision- maker to define the job specifications more clearly. By clearly defining elements such as reporting lines, outputs, inherent requirements such as skills, experience, qualifications and competencies, the chances of recruiting the right person the first time increases exponentially, she adds.

"Don't rush the process because you will, in all likelihood, land up with the wrong person."

New Blood

There are no specific rules to follow when placing an employee internally. When a business looks for an employee outside the organisation, though, there are some guidelines that need to be adhered to.

Business owners can either place an advert, use word of mouth or employ a recruitment agency.

"If you go through an agency, you will pay a fee, but the agency should be doing a lot of work for you such as initial screening, background and reference checks and initial interviews," says Caron.

Once the CVs start rolling in, a short list of candidates is selected, followed by interviews.

The interview process

Caron points out that the outcome of an unstructured interview is usually unclear and that gut feel will override a candidate's true competencies.

It also becomes extremely difficult to compare candidates, and business owners might find that they hired the nicest person and not necessarily the best.

"Some people are very good at selling themselves but not at doing their jobs," says Caron.

Rather, she says, specific questions should be posed to all candidates in a set structure to create an even playing field. The interview should also be used to clarify anything arising from the candidate's CV, such as employment time lines or qualifications.

But, you cannot ask anything that might be considered discriminatory, such as whether a person is married.

"Being married has nothing to do with the job unless you unpack it further such as the requirement to work long hours and making this an inherent requirement of the job ... Use specific questions to get to specific information."

Caron explains that a candidate has the right to question why they did not get the job and can take you to the CCMA (Commission for Conciliation, Mediation and Arbitration) if they believe they have been discriminated against.

"The onus is on the business owner to prove that the process was objective, fair and non-discriminatory," she says.

The last step

Caron advises businesses to short list no more than three candidates for a position and encourages a second interview process: "It gives you a second chance to form an opinion and to clarify issues that may have arisen in the first interview."

She also says employers should not be shy to conduct background screening, check the applicant's salary slips and conduct psychometric testing when necessary. The psychometric testing needs to be relevant to the position and scientifically valid though.

In addition, once an offer is made, it needs to be in writing and must include all the relevant information that the position requires such as duties, reporting lines and remuneration. This letter needs to comply with guidelines set out in the Basic Conditions of Employment Act. Visit the Department of Labour's website - www.labour.gov.za - for more information.

Probation

Many business owners believe a probation period is a "get out jail free card". But Caron says you cannot simply get rid of a new employee during this period.

The probation period can last between three and six months and needs to be a structured process. This includes meeting with the employee every month to determine how they are doing and what the response from the company as a whole has been.

In addition, the employer must be willing to provide the training, mentoring or coaching the individual might need do to his or her job.

This does not mean your hands are tied: you can still get rid of someone if they do not have the core competencies as defined by the job specifications.

"If, for example, I hire a secretary and she can't type, but she told me during the interview that she could, I can fire the person because it was an inherent requirement of the job," says Caron.

"Even if the person is doing a great job, these monthly meetings give you a good opportunity to touch base with the employee and see whether they are happy."

What's a legal contract?

This is the Basic Conditions of Employment Act check list for employment contracts:

• Full name and address of employer;
• Name and occupation of employee;
• Various places of work;
• Date of employment;
• Ordinary hours and days of work;
• Rate for overtime;
• Any other cash payments;
• Any payment in kind and value thereof;
• Frequency of remuneration;
• Any deductions;
• Leave entitlement;
• Notice period; and
• Recognition of previous service.

The laws that apply

In South Africa, the employee/employer relationship is governed by the following legislations:

Basic Conditions of Employment Act

Labour Relations Act

Occupational Health and Safety Act

Skills Development Act

Employment Equity Act

Visit the Department of Labour's website at www.labour.gov.za to learn more about the different acts.

It is much easier to hire someone than to fire them. This reality stems from South Africa's past, and the law now protects workers' rights.

Caron Hall from the SME human resource consultancy, Thehrhub, says there are three reasons why you might be able to fire someone: operational requirements, incapacity and misconduct.

But you must follow the guidelines set out in the employment laws.

Operational Requirements

This is a ''no-fault" dismissal due to retrenchments and redundancies.

"In other words, the company has an operational requirement to have fewer people," says Caron.

Incapacity

Incapacity can be broken down into two - poor performance or ill health.

"This is when the person is incapable of doing the job because they don't have the skills or because they are too ill to work."

But, adds Caron, the employer needs to counsel the employee first and try to fix the problem before they can move on to dismissal.

If a person is sick, you need to search for alternatives before you can dismiss them.

If they are incapable of doing their job because they do not have the skills, business owners should seek professional help. "This is a legal process you are entering into, so get advice from people who understand the process. If you want to protect yourself, get an expert."

Misconduct

When a person has either broken a rule or a law the business has set out, it is misconduct.

Caron says a company has the right to determine its own rules, as long as they are fair and reasonable. This is because businesses need systems and processes to protect themselves.

But, in order to dismiss someone for misconduct, the business needs to be sure that charges are procedural and fair.

In addition, Caron says, the rules and punishment need to be implemented consistently.

Disciplinary Procedures

But, despite what an employee does, you cannot just fire them. Follow disciplinary procedures.

There are four methods of disciplinary action that may be taken against an employee: verbal warning, written warning, final written warning and a disciplinary inquiry.

When an employee does something minor, you can give them a verbal warning. But, a formal written record must be signed by the employee and placed in their file. The warning expires after six months.

If the verbal warning did not have an effect on the employee's behaviour or if the misconduct was serious, you can issue a written warning. This warning needs to be discussed with the person and their representative or witness. It also needs to be signed and kept on record for six months.

A final written warning can be issued if the employee does not change his or her behaviour or if they have committed an extremely serious transgression.

Once again, you have to follow the procedure set out above and if another offence is committed within a year, you can hold a disciplinary hearing.

A final warning can also be issued if the transgression was extremely serious and no other warning was issued previously.

Disciplinary Hearings

"You can never dismiss someone without a disciplinary hearing and you need to give the employee a chance to state their case," says Caron.

Labour laws clearly define the procedures that need to be adhered to when firing someone and this includes holding disciplinary hearings. Even if your reason for firing someone was valid, you might find yourself on the wrong side of the law if you did not follow procedures.

This includes using a neutral and objective person to chair the hearing. Caron says many businesses make the mistake of appointing an employee as a chairman.

In addition, both the employee and the business have the right to call witnesses and the employee needs time to prepare for the hearing. The employee also has the right to use a translator if needed.

Caron adds that the employer cannot intimidate or discriminate against an employee during the process either.

In essence, a disciplinary hearing is a legal process and Caron advises SMEs to make use of experts in the human resource field.

What is a dismissal?

An employee is regarded as dismissed when:

• The employer ends a contract of employment, with or without notice;
• An employee has a reasonable expectation of their contract being renewed on the same terms, and the employer fails to renew or does so on lesser terms;
• An employer refuses to allow an employee to return after maternity leave;
• An employer selectively re-employs some employees after dismissal for the same or similar reasons, but not others;
• An employer makes the working environment intolerable for the employee, forcing them to leave (constructive dismissal);
• There is a transfer of a business as a going concern; the new employer provides employees with substantially less favourable terms and conditions of employment, and as a result the employee resigns.

When not to fire someone

The Labour Relations Act defines certain dismissals as automatically unfair:

• For taking part in the activities of a union or workplace forum;
• For taking part in a protected strike or protest action;
• For refusing to accept an employer's offer on a matter of mutual interest such as a wage increase;
• For refusing to do the work of someone who is on a protected strike or lockout;
• For an employee's pregnancy or any reason related to pregnancy;
• For exercising any right or by participating in any proceedings contained in the act;
• For a reason related to a transfer of the employer's business;
• For whistle-blowing;
• For any arbitrary reason related to race, age, religion, sex, sexual orientation and so on.
• There are two exceptions to the automatically unfair dismissals:
• The employer may retire someone who has reached the normal or agreed retirement age.

If the reason for dismissal is based on the inherent requirements of the job.