must be informed through a notice as to
the charges and given a chance to submit
a defense, followed by a hearing in due
cognizance of the fair hearing principles,
as well as natural justice tenets. The best
practice is to also allow for an appeal to
the employee within the internal disputes
resolution mechanism if dissatisfied by
the decision of the disciplinary committee.
Where this procedure is followed, an
employer would have addressed the
section 41 and any challenge that an
employee may have would be with regard
to substantive issues only.
So then, what happens in the meantime
as the employee is going through the
notification and hearing process? The
employer is entitled to place the employee
on suspension when there are reasonable
grounds to suspect the employee has been
involved in misconduct, poor performance
or physical incapacity. Suspension allows
the employer the opportunity to undertake
be summoned back to work any time for
disciplinary proceedings or under other
terms of the employer.
Even in cases of serious breach of
contract or an employee being absent from
work; being intoxicated, being negligent
or abusive; failing to obey lawful orders;
criminal arrest; or being a suspect in
a criminal case, under Section 41, an
employee is entitled to a hearing.