5 success factors with a disciplinary hearing
The success of a healthy employer/employee relationship is based on mutual benefits, respect and trust. However, the employer has the right to exercise control in the workplace by implementing rules, applying progressive discipline, and holding disciplinary hearings when offences are serious. An employer cannot dismiss an employee under any circumstances without first holding a disciplinary hearing. This ensures that the procedure followed is fair, and that there is substantive evidence that may justify the employee’s dismissal. There are five factors, highlighted in this article, which influence the outcome of a disciplinary hearing.
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Success factor #1: Timely scheduling and completion
Disciplinary hearings should be held within a reasonable period from the date of the alleged misconduct or when it first came to the employer’s attention. Any unnecessary delay in scheduling and concluding a disciplinary hearing can be detrimental to the employee, and lead to the assumption that the employer has waived his/her right to take disciplinary action.
Success factor #2: Proper examination of facts
Preparing for a disciplinary hearing is crucial. Employers must ensure that allegations are not malicious and that there is sufficient evidence to substantiate each allegation. Circumstances surrounding the allegations must also be investigated. Should there be the possibility of the presence of the accused affecting the preliminary investigation, or if the nature of the offence so requires, the employee may be suspended (with payment) pending the hearing.
Success factor #3: Weigh the seriousness of the offense
Misconduct in the workplace ranges from minor to very serious. The seriousness of the violation is influenced by the employee’s type of work and responsibility, the (possible) consequences of the violation, and its impact on the employee/employer trust relationship. Where the offence is serious and the possibility of dismissal exists, the employer must conduct a disciplinary hearing to ensure that the procedure followed is fair, and that there is substantive evidence that may lead to the employee’s dismissal.
Success factor #4: Impartial assessment
The chairperson has to be an impartial third party and must make a decision based on the facts and evidence presented during the disciplinary hearing. However, when the employer acts as both complainant and chairperson, he/she can be considered to be biased and the process may be declared unfair. Instead, appoint an external expert to act as the chairperson.
Success factor #5: Follow fair procedure
The majority of cases referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) are due to ‘unfair dismissal’. Generally, arbitration awards granted in favour of the employee are linked directly to an employer who did not follow the correct procedure.
Labour legislation stipulates that a strict procedure must be followed when conducting disciplinary hearings. The employer must be able to prove:
- That a disciplinary hearing was held.
- That the employee was notified in writing at least 48 hours (excluding weekends and public holidays) before the hearing in order to prepare.
- That the documentation contained all the necessary information as required by law (notice to attend the hearing and a procedural application form).
- That the chairperson was knowledgeable and impartial.
- That the employee was given every opportunity to prepare for the hearing and defend his/her case.
- That both aggravating and mitigating circumstances were considered.
- That the outcome is based on the facts as presented during the hearing.
- That the sanction was appropriate in accordance with the offense.
- That the chairperson compiled a written report of the hearing and its outcome.
- That the employee received the outcome in writing.
South Africa’s labour environment is highly regulated, making it vital and challenging for employers to comply with labour legislation on an ongoing basis. Non-compliance poses serious business risks for employers and may have a huge financial impact.
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