Employees may find themselves required to appear in a disciplinary hearing for alleged misconduct. An employee may be suspended on full pay pending a hearing especially when the employee’s presence at the workplace may jeopardize any investigation.
The employer initiates a disciplinary hearing with the preparing of a Notice to Attend Disciplinary Hearing, which is than delivered to the employee. It is critical that the charges are correctly formulated in such Notice as the employee can only be expected to prepare and answer the charges set out therein. The employer should give the employee not less than three (3) days notice of the enquiry and the Notice should contain, inter alia, the time, date and venue of the hearing, details of the charges and that the employee is entitled to:
- Be represented by a Union Official (if applicable) or a co-worker of his/her choice;
- An interpreter;
- Call witnesses to give relevant evidence;
- Give evidence;
- Cross-question any witnesses called by the employer.
Conducting a Disciplinary Hearing:
Most disciplinary hearings are conducted in a formal yet fair manner and strict court rules are not applied. The employer should lead evidence at the hearing. Evidence is submitted to prove or disprove the events surrounding the misconduct. The employee is than given the opportunity to respond. The chairperson may ask the parties or any witnesses questions for clarification.
The chairperson must ask both parties to make submissions on the appropriate disciplinary sanctions should the employee be found guilty.
Any person who is required to determine whether a dismissal for misconduct is fair should consider:
- whether the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
- if a rule or standard was contravened, whether or not,
- the rule was a valid or reasonable rule or standard,
- the employee was aware, or could reasonably have been expected to be aware, of the rule or standard;
- the rule or standard has been consistently applied by the employer;
- dismissal was an appropriate sanction for the contravention of the rule or standard.
Disciplinary hearing proceedings
Discipline is a confidential matter, therefor
- Hearings are held in camera, and
- Only those persons permitted in terms of the disciplinary procedure may be present
Laying the charge
During the hearing, the employee is confronted with the relevant facts by the
- Laying of the charge(s)
- Calling of witnesses and
- Submission of any relevant documents
The employee and his representative is given the opportunity to study any documents and cross-examine witnesses
Presenting the defence
The employee and his representative must be given the opportunity to
· Submit evidence
· Submit relevant documentation, and
· Call witnesses
Returning a verdict of guilty
If the employee is found guilty as charged, the chairperson of the hearing must
- Advance reasons for finding the employee guilty as charged;
- Give the employee of his or her representative an opportunity to present mitigating circumstances;
- Decide on applicable disciplinary action to be taken against the employee;
- Furnish reasons for deciding on the disciplinary action; and
- Give the employee/representative an opportunity to address him on the applicable disciplinary action
Validity of a Work Rule/ Legality of Sanction:
The validity of a work rule and legality of sanction for infringement thereof should be considered against the following:
- Did the employee have the authority to make the rule in terms of the employment contract?
- Does the rule comply with the applicable statutes or regulations?
- Is the rule reasonably required for the efficient, orderly and safe conduct of the employer’s business?
- Has the rule been consistently applied in similar cases in the past?