We recently published an article about what employees and employers should know about disciplinary hearings. In this article, we will focus on the general structure of formal disciplinary hearings – what to expect and how to prepare.
Parties to be Present at a Formal Disciplinary Hearing
- The chairperson, who should be unbiased, partial and objective
- The complainant, the employer instituting the disciplinary charges against the accused employee
- The respondent, the accused employee
- The respondent’s representative, if elected
- An interpreter, if required
Should the respondent elect to have a representative, this will either be a fellow employee from the workplace or a trade union representative. Legal representation may be allowed in rare circumstances, if it is agreed to, following the fair evaluation of the request by the respondent based on, amongst others, the complexity of the matter and the comparative abilities of the parties. In the event that legal representation is opted for and agreed to, bear in mind that this will be for the cost of the respondent and could frustratingly prolong the conclusion of the case.
Should an interpreter be required, it is critical to remember that the role of the interpreter is to interpret only and s/he may not take part in the matter in any other way. In the event that either party intends to call the interpreter as his/her witness, the interpreter will need to be excused and another one appointed.
The role of the chairperson is to facilitate the hearing in an orderly manner and ensure that a fair process is followed. As and when the chairperson introduces him/herself, s/he should affirm to those present that s/he has no prior knowledge of the matter that is to be heard.
Following the chairperson’s introduction to the parties, as well as the introduction of each party to each other, the proceedings can begin and each party will have an opportunity to deliver an opening statement.
Although opening statements are not necessarily required, and a hearing can proceed without them, an opening statement is generally recommended as provides a brief overview of the matter to the chairperson, setting a good backbone for the matter that is to be heard.
Presenting of Charge
Once the chairperson has clarity on what the purpose of the hearing is, as well as what needs to be investigated and against who, the chairperson will verify the respondent’s understanding of the charges against him/her and then ask the respondent how s/he pleas – guilty or not guilty. Should more than one charge exists, understanding of each charge and the respondent’s plea to the charge will need to be done for each charge. In the event that the respondent pleads guilty to any charge, it is nonetheless recommended that the hearing continues and that the evidence from both parties is heard as the respondent may not fully understand the charge/s against him/her or, even if he/she does truly grasp the understanding of the charge/es, the respondent may be pleading guilty out of fear.
The chairperson is required to ascertain that the fair procedural points in notifying the respondent of the disciplinary hearing have been satisfied, such as providing sufficient notice and time to prepare. Generally, two working days will be regarded as sufficient time to prepare, but dependent on the seriousness of the matter, more time may be required. Should the chairperson be of the opinion that the respondent was not provided enough time to prepare or a request for more time be reasonable, the chairperson may postpone the hearing to a later date and time.
Presenting of Evidence
Once the above has been established, the chairperson will proceed with the hearing and the complaint will lead its evidence in chief. The respondent will be allowed the opportunity to cross-examine the complaint’s evidence/witnesses before presenting and leading his/her own evidence in chief. The complaint will be afforded the same opportunity to cross-examine the respondent’s evidence/witnesses.
The chairperson is required to listen to each party’s evidence fairly and will likely adjourn the hearing in order to weigh up the evidence presented, compile the minutes and consider the outcome of the hearing.
In applying his/her mind to the matter, the chairperson will also consider mitigating and aggravating circumstances, and once the hearing is reconvened, the chairperson will deliver his/her verdict alongside the recommended sanction.
Opportunity for Appeal
Before the hearing is officially concluded, the respondent should be made aware of the avenues available to appeal the outcome or to refer a dispute.
Please note that this article has been provided purely for informational purposes and in no way should be substituted for legal advice.
- The South African Labour Guide, The Disciplinary Hearing – https://www.labourguide.co.za/discipline-dismissal/641-the-disciplinary-hearing
- The South African Labour Guide, the Right to Representation – https://www.labourguide.co.za/discipline-dismissal/673-the-right-to-representation
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