Successful disciplinary hearings

Conducting successful disciplinary hearings requires meticulous adherence to procedural fairness. Employers cannot dismiss an employee without first holding a hearing, as this ensures compliance with legislation and limits risks when dealing with disputes at bodies like the Commission for Conciliation, Mediation and Arbitration (CCMA).

Six factors that influence the outcome of a disciplinary hearing include:

1. Follow the workplace disciplinary code

A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow.  When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.  The employer should always first establish if there is enough evidence to prove a case prior to making the decision to proceed with a disciplinary hearing.

2. Timely scheduling and completion

Schedule and conclude hearings within a reasonable timeframe after discovering misconduct. Undue delays can imply or give the impression that the employer waivers disciplinary actions and can in many instances be prejudicial to the employee. Aim to notify the employee in writing at least 48 hours in advance, excluding weekends and public holidays, detailing allegations sufficiently and allowing enough time and information for preparation. This timeline supports gathering robust evidence promptly, preventing degradation of witness recollections or document availability.

3. Thorough examination of facts and evidence

Preparation is essential. Investigate allegations to confirm they are not malicious and are supported by sufficient evidence. Suspend the employee with pay if necessary to protect the investigation. Understand evidence as facts or information proving a proposition’s validity. Types include verbal testimonies from witnesses with firsthand knowledge, documentary items like attendance registers, concrete objects such as stolen goods, and visual records like video footage or photographs.

Adhere strictly to evidence rules. For example, with documents, submit the original documents where possible and if authenticity is disputed, explain absences of originals and have witnesses authenticate the documents. Sworn statements require the maker’s presence for cross-examination. The reason for this is that parties have a right to cross examine witnesses based on the content of their statements. Avoid hearsay, which is second-hand information and inadmissible unless corroborated by direct witnesses. Present only admissible, trustworthy evidence, as the chairperson decides solely on what is tabled. A strong disciplinary code outlining rules and sanctions aids in establishing misconduct thresholds.

4. Assessing the seriousness of the offence

Evaluate misconduct’s gravity based on the employee’s role, potential consequences and impact on the employee/employer trust relationship. Where the offence is very serious and the possibility of dismissal exists (e.g. theft), the employer must investigate and then 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. Consider aggravating and mitigating factors, ensuring evidence substantiates the offence’s severity for a fair outcome.

The use of supporting concrete or visual evidence to investigate, as well as at the hearing, often is of great help as it carries more persuasiveness than verbal evidence alone.

• Concrete evidence: the actual recovered company property that the employee was caught stealing.
• Visual evidence: picture footage, such as video footage from a security camera showing the theft at work.

5. Ensuring impartial assessment

Appoint an impartial chairperson, ideally an external expert, to avoid bias perceptions, such as in cases where the employer acts as complainant as well. The chairperson must base decisions on facts and evidence presented at the hearing, weighing up both sides. This impartiality upholds procedural fairness, reducing unfair dismissal claims.

6. Adhering to fair procedure

Follow statutory procedures rigorously, as many CCMA referrals stem from procedural flaws. Prove the hearing occurred, notification was proper, the employee had defence opportunities to provide his/her version of events in response to the charges, that circumstances were considered, the sanction not only fit the offence but have been applied consistently in the workplace and that the outcomes were documented and given to the employee in writing.

By focusing on these factors in 2026, employers can mitigate risks, foster workplace discipline and comply with evolving labour regulations. Consult the LWO for tailored advice to navigate the complexities of labour legislation.

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