DISCIPLINARY HEARINGS

Disciplinary hearings take place in cases of serious misconduct when the workplace’s rules are violated. Labour disputes are very disruptive in terms of workload and general harmony between employees and/or management.

Disciplinary hearings can be formal or informal, but it is essential that the employer can prove that a 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).

Enforcing discipline in the workplace can be tough, due to the nature of the relationship and emotions involved. The LWO offers a hands-on approach with expert guidance every step of the way to ensure the process is fair, whilst protecting the employer’s rights. Handle every labour dispute confidently without putting your business at risk.

LEGISLATIVE REQUIREMENTS

Take note: An employer can never dismiss an employee under any circumstances, even with valid reason, without first holding a disciplinary hearing to ensure procedural fairness (that a fair procedure is followed) and substantive fairness (a valid and fair reason for the sanction imposed).

Procedural fairness

The employer must be able to prove the following:

A disciplinary hearing was held;
The employee was notified in writing at least 48 hours (excluding weekends and public holidays) prior to the hearing to prepare for the hearing;
All documentation (notice to attend the hearing and a procedural application form) contained all the necessary information required by legislation;
The chairperson was informed and unbiased;
The accused employee was given every chance to prepare for and defend his/her case;
The accused employee was given the opportunity to state his/her case;
The accused employee was allowed to call witnesses during the disciplinary hearing to prove his/her case;
The accused employee was allowed to cross-examine witnesses;
Aggravating and mitigating circumstances were taken into account;
The outcome of the dismissal was based on the facts presented during the hearing;
The sanction was appropriate according to the offence;
The hearing and outcome was recorded in writing by the chairperson;
The employee received the outcome in writing.

Substantive fairness

The employer must be able to prove the following on a balance of probability:

Was there a rule in the workplace?
Was the rule reasonable?
Was the employee aware of the rule?
Did the employee break the rule?
Did the employer apply progressive discipline (consultation and warnings, according to the offence)?
Did the employer apply discipline consistently?
Did the misconduct justify the sanction applied?

WHAT IS THE RISK?

Most cases referred to the CCMA pertain to unfair dismissal. In general arbitration awards in favour of the employee are due to incorrect procedures on the employer’s behalf. These awards can have serious consequences with a huge financial impact.

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STEPS TO FOLLOW WITH DISCIPLINARY HEARINGS

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, as well as 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 and should the employer present evidence to the chairperson. The chairperson must determine if the employee had sufficient notice of the hearing and if the employee is absent with a valid reason or not. At the end of the hearing the chairperson will make a recommendation to the employer to either dismiss the employee or not.

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 – The chairperson of the hearing should be an objective and impartial third party to the matter, preferably with knowledge of labour law. 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 investigations

The investigation is a vital part in the disciplinary process. Employers often do not get the desired outcome at the end of a disciplinary hearing due to insufficient evidence being submitted. A chairperson cannot rely on speculation; the evidence must prove that the employee is directly involved or can be directly linked to the misconduct. The chairperson must consider all the facts and evidence presented during the disciplinary hearing and can only make a finding based on that.

5 COMMON MISTAKES WITH DISCIPLINARY HEARINGS

Employers do not thoroughly investigate the misconduct before holding disciplinary hearings – Preparation is key. Employers must ensure allegations are not malicious and that there is sufficient evidence to substantiate each allegation. Surrounding circumstances should also be investigated. Allegations must be formulated correctly according to the facts and the employer should decide on the evidence and/or witnesses to use during the disciplinary hearing and organise this chronologically. Closing arguments must be prepared summarising the evidence, as well as arguments as to why the employee is guilty of the allegations.

The seriousness of the misconduct does not justify holding a disciplinary hearing – The seriousness of misconduct is influenced by the employee’s type of work and responsibility, the (possible) consequences of the misconduct, as well as the impact thereof on the employer-employee trust relationship. When the misconduct is of a serious nature and the possibility of dismissal exists as a sanction, the employer must hold a disciplinary hearing.

Employers themselves act as both prosecutor and chairperson – The chairperson must be an impartial third party and make a decision based on the facts and evidence presented during the disciplinary hearing. However, when the employer acts as both prosecutor and chairperson, the chairperson can be considered to be biased and the process declared unfair by the commissioner at the CCMA. Rather appoint an expert, external person to act as chairperson.

Insufficient or inadmissible evidence and proof – Evidence during a disciplinary hearing can include the following: documentation, photographs, footage, personal testimony, etc. Employers must remember that hearsay evidence has no value and a witness can only testify about own experiences and personal knowledge.

Disciplinary hearings are procedurally unfair – Labour law stipulates a strict procedure to follow when holding a disciplinary hearing and the employer must be able to prove that this procedure was followed and that there was sufficient proof to dismiss the employee.

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DIFFERENT ROLES OF THE EMPLOYER AND CHAIRPERSON

It is vital to understand the role of the employer versus the role of the chairperson with regards to disciplinary hearings. See below lists of what each role includes.

Role of the employer during a disciplinary hearing includes to:

make sure allegations are not malicious and there is sufficient evidence to support every alleged offence;
investigate all surrounding circumstances to the allegations;
assess the circumstances that led to the misconduct;
evaluate if the proof is sufficient to prove the employee’s guilt;
formulate the charges and ensure it is factually correct;
appoint a competent representative (LWO) to argue the case on behalf of the employer (take note this is not the chairperson);
appoint an independent chairperson to chair the disciplinary hearing;
decide on which evidence and/or witnesses to use during the hearing and order it chronologically – proof can include documentation, photos, footage, personal witness evidence, etc.;
anticipate possible defences that the employee can bring during the disciplinary hearing and prepare questions to cross examine the employee;
prepare closing arguments that summarise proof and argue why the employee should be found guilty of the misconduct.

Role of the chairperson during a disciplinary hearing includes to:

keep the disciplinary hearing in good order;
ensure that the disciplinary hearing is conducted procedurally fair;
hear and consider witnesses;
make a finding of guilty or not guilty based only on proof and witnesses presented during the disciplinary hearing;
make a recommendation of an appropriate sanction in accordance with the employer’s disciplinary code.

The chairperson must be objective and may not have any knowledge of the matter before the disciplinary hearing. It is not the chairperson’s duty to prove the employer’s case. The chairperson can only make a recommendation based on the evidence and witnesses presented during the disciplinary hearing by the employer and cannot make assumptions.

WHAT ABOUT SUSPENSION?

An 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. Take note that precautionary suspension is with full pay and benefits and that the employee is not being punished.

WHEN CAN DISCIPLINARY HEARINGS BE POSTPONED

It is not always possible to proceed with a disciplinary hearing on the day of the hearing due to a variety of factors. It is in the chairperson’s discretion to decide if there are grounds for postponing the disciplinary hearing after considering the request for postponement objectively. Role players at a disciplinary hearing can include the chairperson, employer, employer’s representative, employee, employee’s representative, witnesses and a translator.

The number of times a disciplinary hearing can be postponed is at the discretion of the chairperson after considering the reason for postponement. Once a hearing is postponed, it is good practice unless agreed otherwise, to issue the employee with a new notice at least 48 hours before the hearing is rescheduled.

Valid reasons to postpone a disciplinary hearing:

Unavailability of one of the role players due to a valid reason – A valid reason may include sickness, transport, a family emergency, etc. The chairperson should request sufficient proof before considering any request for postponement, e.g. a medical certificate, death certificate, etc.

Insufficient notice periods – An employee must receive notice in writing to attend a disciplinary hearing at least 48 hours before the hearing is scheduled to prepare, otherwise the hearing must be postponed.

It is in the best interest of all role players involved – If one of the role players show up under the influence of drugs or alcohol, need an interpreter, or if new information has been brought to light, it will be in the best interest of all role players involved to postpone the disciplinary hearing.

An objection made against the chairperson – An objection can be made against the chairperson if any role player is of opinion that the chairperson is biased, or if the chairperson has any prior knowledge of the facts of the case. It is in the chairperson’s discretion to decide if there are grounds for the objection and excuse him- or herself, after which the hearing will be postponed.

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