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Disciplinary hearings can be daunting, whether you need to attend one, or start the proceedings. Here are some tips to ensure everything goes by the book.

What is a “Fair Dismissal”?

Section 188 of the Labour Relations Act[i] (“LRA”) provides that, in order for a dismissal to be fair, it needs to not be automatically unfair, and moreover the employer must be able to prove that a dismissal was procedurally and substantively fair – a disciplinary hearing forms part and parcel of a fair procedure.

The Codes of Good Practice: Dismissal (the “Codes”), as per Schedule 8 of the LRA, do not necessarily prescribe how a disciplinary hearing should be conducted[ii], however, and as seen in case law, if the true ambits of the Code are realised and the function is adhered to, then the process in essence will be fair.

Essentially this means that in order to be fair, all that is required is that an employee party to a disciplinary hearing, especially one facing dismissal, was provided the opportunity to state his/her case before the sanction was issued[iii].

Disciplinary hearings can be informal or formal, or even be conducted via written representation[iv], but by no means should be a “mini court case”[v], the only prerequisite is that it is fair. To help govern disciplinary hearings even further, as well as regulate rules and the application of progressive and consistent discipline, employers should establish a disciplinary code/procedure/policy in line with the Codes, its size and the industry in which it operations.

 

 

Standard Disciplinary Procedures

Before an employer notifies an employee of a disciplinary hearing, the employer should first conduct an investigation to determine whether grounds for dismissal exist and should reasonable grounds exists, here’s what you need to know about formal disciplinary hearings, from both an employer and employee’s perspective:

 

  1. The employer should issue the employee with written notice of the disciplinary hearing containing the date of the notice, the date, time and place of the hearing, as well as the charge/s against the employee.

 

  1. The notice should record a detailed description of the charges brought against the employee in plain and simple language, including the date, time and description of the incident[i]. It is best for charges to be clear and formulated precisely.

 

  1. Sufficient notice must be provided to the employee in order to allow the employee reasonable time to prepare his/her case against the allegations. Generally speaking two working days should suffice[ii], or the notice period as prescribed in the company’s disciplinary code/procedure/policy should be adhered to, however, depending on the complexity of the charges, more notice and a reasonable time may be required.

 

  1. Over and above a reasonable notice period, the employee is entitled to be provided with sufficient information and documents as requested in order to understand and fully prepare for the charges against him/her.

 

  1. As per the purpose of a hearing, the employee has a right to state his/her case and to present a defence by leading evidence in the “rebuttal of the charge”[iii] and “to challenge the assertions”[iv] of the employer.

 

  1. The employee is entitled to the representation of a fellow employee from his/her workplace or a trade union representative. It is important to note that such representation should be made known to the employer prior to the disciplinary hearing. The employee is also entitled to the use of an interpreter should one be required.

 

  1. As the employee has a right to be fairly judged, disciplinary hearings should be heard before an objective and impartial chairperson who preferably has knowledge of labour law. It is the chairperson who needs to “weigh the evidence for and against the employee and to make an informed and considered decision”[v] in favour of the party whose version is the most probable.

 

  1. After the conclusion of the disciplinary hearing, the employer should communicate the decision taken to the employee and preferably furnish him/her with written notification of that decision[vi]. Should the employee be dismissed, the employee should be provided with the reason for the dismissal, as well as reminded of his/her right to refer the matter to the CCMA or council with jurisdiction within 30 days[vii].

 

  1. Should the employee fail to attend the hearing: –
  • The chairperson will determine whether sufficient notice was provided to the employee and whether valid reason exists for the employee’s absence
  • Should the chairperson find that reasonable notice was provided and that valid reason for the employees absence does not exist, the hearing will continue in the employees absence and the chairperson will make his/her verdict based on the employer’s case only

In conclusion, it is prudent that the employer be able to prove that a disciplinary hearing, especially when there has been a dismissal, was conducted before the sanction was imposed, as well as that the disciplinary hearing held was fair and that the rights of the employee as per the LRA were realised.

For more information with regards to disciplinary procedures see: http://www.ccma.org.za/Services/Individual-Employee-Employer/Disciplinary-procedures

 

 Please note that this article has been provided purely for informational purposes and in no way should be substituted for legal advice.

 

References:

 

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