Disciplinary hearings: thorough investigation and expeditious process

When an employee’s alleged misconduct in the workplace comes to the employer’s attention, it is necessary to investigate.  This ensures that the employer makes an informed decision based on the facts.  The purpose of the investigation is to establish if there is enough evidence to prove the alleged misconduct, and if there are sufficient grounds for a dismissal.  However, employees are entitled to an expeditious finalisation of disciplinary proceedings.

Disciplinary hearings:  balance is key

Balance is key between conducting a thorough investigation in pursuit of relevant facts, and finalising the disciplinary process in a timely manner and avoiding unreasonable delays.  Failure to do so may result in both substantive and procedural unfairness towards an employee.  Preferably, an investigation must be without any delay and not unnecessarily dragged out. An investigation depends on the nature and complexity of the case, the amount of evidence, and the availability of witnesses and other evidence.

Don’t rush disciplinary hearings

Employers should be careful of rushing the proceedings to schedule and conduct a disciplinary hearing, as it can lead to:

• Incorrectly or poorly drafted charges – the charge sheet is very important, and all charges listed must be factually correct. Once all the information is obtained and the employer is satisfied that there is sufficient evidence to charge the employee with, it is time to formulate the charges.  Ensure that each charged misconduct contains enough detail of the actual offence, including the time, place and a brief description. An employee must be able to prepare for the disciplinary hearing based on these charges.
• Witnesses required to prove the misconduct being unavailable or insufficiently prepared to give evidence.

• Insufficient evidence presented at the hearing – take note that the chairperson can only make a finding based on the facts and evidence presented during the disciplinary hearing and cannot rely on speculation or make inferences in the absence of sufficient facts and evidence relating to the misconduct.

Avoid unreasonable delays

Unreasonable delays in the process should be avoided and whilst investigations into misconduct must be thorough, the employee’s right to have the matter finalised in a timely manner, must be borne in mind.  The Labour Court considers the following factors (to be applied holistically) in determining whether a delay in disciplinary hearings renders the process unfair:

• The delay in finalising the proceedings must be unreasonable. The longer a delay, the more likely it is to be found to be unreasonable;
• The employer must provide a reasonable explanation for the delay. An inexcusable delay will lead to a finding that the process was unfair;
• Any steps taken by an employee, or the failure to take steps during the disciplinary process, to assert the right of the employee to a fair and speedy process;
• Whether or not the delay caused material prejudice to the employee by considering the impact of the delay on the employee’s ability to present a proper case;
• The nature of the offence.

Suspension

If the employee’s conduct is of a very serious nature, the employer is entitled to suspend an employee on a precautionary basis pending an investigation, especially if there is a possibility that the employee can interfere with the investigation in any way, disrupt the employer’s operations, or intimidate possible witnesses.  Take note that precautionary suspension is with full pay and benefits and that the employee is not being punished.

Take note

Discipline is a vital aspect to ensure a workplace functions effectively.  An employer cannot dismiss an employee under any circumstances, even with valid reason, without first holding a disciplinary hearing. This will ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.

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