Employers need to ensure that they follow a procedurally and substantively fair process when conducting a Disciplinary Hearing. Employees also need to be aware of their rights to ensure that they are well equipped for the process. This article endeavours to outline and provide clarity in respect of the steps necessary for a Disciplinary Hearing to be regarded as fair.
Before an Employer makes a punitive or non-punitive decision based on the conduct of an Employee, a Disciplinary Hearing must be held to accurately determine the facts and merits of the charges levelled against and Employee and to allow the Employee to make representations by way of leading evidence, utilizing witnesses in their defense and cross examining the Employer's witnesses, if any. This process is governed by Schedule 8 of the Labour Relations Act 66 of 1995 titled the Code of Good Practice: Dismissal (herein after referred to as "the Code").
Reasons for a Disciplinary Hearing
Employers have workplace rules and regulations that all Employees must abide by. In a situation where an Employee allegedly does not adhere to such workplace rules and regulations the Employer may take steps to decide on their guilt and where necessary, the form of discipline. Where an alleged breach of the rules cannot be condoned the Employer can issue the Employee with a Notice to attend a Disciplinary Hearing to make the Employee aware of the process being initiated.
What to Include in the Notice to the Attend the Disciplinary Hearing
The notice needs to include the following information:
- The date, time and venue of the hearing;
- The details of the alleged breach by or charge levelled against the Employee;
- Inform the Employee that they are allowed representation either by a co-worker, shop steward or union representative;
- The right of the Employee to have an interpreter present if needed; and
- The right of the Employee to call witnesses.
The actual hearing should commence with the Employer detailing the alleged breach or charge and provide sufficient and appropriate evidence to support the allegation. The Employee would then follow and be allowed to present their version of events. Both parties may call witnesses and the Chairperson (an impartial third party) may question these witnesses for clarity if necessary.
The Chairperson should impartially weigh the evidence presented and ensure that during the hearing both parties are given an equal opportunity to present their version of events. The evidence is to be adjudicated on a balance of probabilities, meaning that the decision needs to be in favour of the side with the more probable version of events. In the case of the Employee being found guilty, both sides are then provided with the opportunity to make representations regarding what they feel a reasonable penalty for the transgression should be. If the Chairperson makes a ruling that the Employee feels is incorrect or in some way flawed, the Employee may then refer a dispute to the CCMA or relevant Bargaining Council. If the Chairperson rules that the Employee is not guilty, the Employer has the discretion (unless its workplace policy or the contract of employment states otherwise) to overrule the Chairperson's recommendation. However, the Employer will need to substantiate in great detail the reason for overruling the Chairperson's recommendation if the Employee refers a dispute to the CCMA or relevant Bargaining Council.
Forms of Penalties Should the Employee be Found Guilty
If the Employee is found guilty, the Chairperson may make one of the following recommendations, which is not an exhaustive list, but rather some of the most common penalties for transgressions, which can then be implemented by the Employer:
- A written or verbal warning
- Suspension without pay
- A demotion or dismissal
Disciplinary Hearings serve as way in which an Employee's alleged behavior can be addressed without the need to involve too many external structures. This allows for a proper and formal way for a decision to be made appropriately linked to the severity of the alleged breach. It is always recommended that a clause be inserted in employment contracts stipulating that parties shall first fully exhaust the internal structures before referring the matter as this will allow for a proper investigation with the Employer then able to correct inconsistencies whilst saving resources.
The above only serves as a basic guideline for how the process is to be conducted by Employers. It is further recommended that upon receiving a Notice of a Disciplinary Hearing, Employees familiarize themselves with the relevant do's and don'ts and where possible, consult with a legal professional to seek guidance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.