From time to time, every employer finds themselves in a position where they need to conduct a disciplinary hearing against a staff member. This can prove to be a difficult task for even larger employers, many of whom don’t manage to get all of the basics correct. Even though there may be a wealth of evidence against an employee, the employer must ensure that an ostentatiously fair process is followed, or else they could face an unfair dismissal claim amounting to the equivalent of 12 months of that employee’s salary.
The Labour Relations Act (LRA) sets out certain guidelines to ensure a fair procedure is followed. Listed below are some useful tips to ensure that you don’t end up in trouble:
Stage 1: Before the disciplinary hearing
- The employee must be formally summoned to the disciplinary hearing, through a written notice.
- The legal charges and a summary of the case against the employee must be set out on the written notice for the hearing.
- At least 48 hours’ notice must be given to the employee, to allow them to properly consider the allegations and evidence against them and to prepare their defence.
The notice for the hearing must also set out all of the rights that will be afforded to the employee during the inquiry, including to be represented by a fellow staff member, to have an interpreter present (if required) and the right to call witnesses to testify during the disciplinary inquiry.
Stage 2: During the disciplinary hearing
- The disciplinary hearing should be held at the company’s premises, during working hours.
- At a minimum, the following parties should be present: The Chairman, complainant, accused employee, the employee’s representative and interpreter (if required).
- The hearing may be chaired by a manager who is more senior than the complainant but should preferably be chaired by an external legal professional who has no direct relationship with either the complainant or the accused employee.
- The Chairperson must record the proceedings in sufficient detail to reflect how the submissions and evidence have been dealt with.
- At the start of the disciplinary hearing, the Chairperson must explain the allegations against the employee, the purpose of the hearing and manner in which it will be conducted.
- The employee must be asked to plead to the charges and then be presented with the company’s full case against them.
- The employee must be granted an opportunity to cross-examine the Company’s witnesses and test their evidence.
- The employee is entitled to an opportunity thereafter, to present their defence.
- The disciplinary hearing may be adjourned so that a decision can be made with respect to the guilt of the employee on the charges.
- Once the decision has been reached, the disciplinary hearing should be reconvened to announce the decision.
- The employee should be allowed to make their submissions with respect to mitigation and possible deviation from the Company’s recommended sanction for the offence/s.
Stage 3: After the disciplinary hearing
- The Chairperson will need to compile a reasoned recommendation and file this with the employer.
- The employee must be advised of their right to appeal or refer a dispute to the CCMA.
- If an appeal is submitted, then this must be dealt with by a Chairperson who has not been involved in the investigation or disciplinary hearing.
By using The Labour Counsel to assist with and chair your disciplinary inquiries, you will be assured that the right processes have been followed. Moreover, that the person who chairs the hearing has the appropriate legal qualification to deal with any technical queries that may arise during the proceedings. It pays to do it correctly the first time!