Disciplinary hearing: employers must follow these steps

Every business has rules for the workplace. When these rules are broken and the misconduct is serious, the employer can proceed with a disciplinary hearing – but how, and what are the correct steps to follow? South Africa’s labour market is highly regulated, which makes it crucial (and challenging) for employers to comply with labour law. Non-compliance holds a serious business risk for every employer. This risk is often underestimated and left unaddressed, which can have a huge financial impact that could have been avoided.

Employers have many rights in the workplace, including the right to:

Why must the employer hold a disciplinary hearing?

Steps to follow during a disciplinary hearing:

• Issue the employee with a notice to attend a disciplinary hearing:

  On the notice the employer must state the date, time and place where the hearing will take place.  The notice must also contain a detailed description of the charges brought against the employee, including the date, time and description of the incident(s).  We advise employers to give the employee 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow the employee to prepare for the hearing.

• Have the hearing on the proposed date and time:
  Even if the employee doesn’t show up for the hearing, the hearing must still take place (in absentia) and the employer can proceed to present evidence to the chairperson.  The chairperson will determine if the employee had sufficient notice of the hearing and whether the employee is absent with a valid reason or not.  If the employee does have a valid reason for being absent, the chairperson may postpone the matter.

• During the hearing the chairperson will ask the employee to plead guilty or not guilty to the charges brought against him:
  The employer presents his case by presenting evidence and calling witnesses.  The employee is then allowed to present his case and cross examine the evidence presented by the employer.  Thereafter the employer may cross examine the employee’s evidence and witnesses.  At the end of the disciplinary hearing, both parties will make closing arguments.

• The chairperson must make a finding of guilty or not guilty:
  After making closing arguments, the employer will be asked to present aggravating factors and the employee mitigating factors.  The chairperson will then determine the appropriate sanction.  If the sanction is dismissal, the employee can be dismissed with immediate effect.

Disciplinary process: formal or informal?

A disciplinary hearing can be formal or informal, but it is essential that the employer can prove that the hearing was held.  Therefore, we advise employers to have a formal hearing as the employer can then ensure that all the paperwork is in order if the matter proceeds to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The chairperson of the hearing should be an objective and impartial third party to the matter, preferably with knowledge of labour law. Employers should take note that the chairperson is not responsible to prove the employer’s case and cannot assist to prove the employee’s guilt (what is the chairperson’s role?).  It is important to be able to prove at the CCMA that the chairperson wasn’t bias.