Dissiplinêre verhoor: werkgewers moet hierdie stappe volg
Every business has rules for the workplace. hen 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:
- establish a fixed standard in terms of quality and quantity
- implement rules in the workplace
- apply discipline when these rules are broken
A disciplinary code is vital to ensure that there are clear rules and procedures in the workplace for employees to follow. When these rules are not followed, the employer can apply progressive discipline (in the form of warnings). In cases of severe misconduct, the employer can proceed directly to a disciplinary hearing.
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). Werkgewers word aangeraai om die werknemer ten minste 48 uur kennis (uitgesluit naweke en openbare vakansiedae) van die verhoor te gee ten einde die werknemer genoegsame tyd te gee om vir die verhoor voor te berei.
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. Die werknemer het daarna die geleentheid om die werkgewer se getuies onder kruisverhoor te plaas, waarna die werknemer die geleentheid het om sy saak te stel en getuies te roep. Daarna het die werkgewer weer geleentheid om die werknemer se bewyse en getuies te kruisondervra. Aan die einde van die verhoor kan beide partye slotargumente lewer.
- 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. Dissiplinêre ondersoek Indien die voorsittende beampte bepaal dat ontslag die geskikte sanksie is, word die werknemer met onmiddellike effek afgedank.
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.
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