Disciplinary probes must follow form

SINCE the inception of The Labour Relations Act No 66 of 1995, it has become both law and common practice to enforce proper procedural structures so as to allow accused staff members an opportunity to defend themselves and to challenge allegations made by their employers.

The labour courts, the Commission for Conciliation Mediation and Arbitration (CCMA) and the bargaining councils have been strict in ensuring that employers would be found wanting if they did not allow the accused staff member an opportunity to raise a proper defence should he or she wish to.

Only in certain, very rare, circumstances may a disciplinary enquiry be completely dispensed with.

All decision-makers would enquire as to whether there has been a proper process followed.

It is often said that even if the staff member is guilty of wrongdoing, that person would be able to raise a defence and, if necessary, thereafter raise mitigating factors showing why there should be no dismissal.

A golden thread of our law entitles every single employee to defend him or herself and, furthermore, is actually entitled to be heard at every level.

Should an employee be dissatisfied with the process of any disciplinary enquiry, that employee may challenge the process by referring the dispute to the CCMA or to arbitration at a bargaining council. Ideally, this referral must be done within 30 days unless there is exceptionally good reason it hasn’t been done.

The adjudication body set up by the Department of Labour is efficient in what it does and will assist anyone who approaches it to enable that person to complete the documentation with the minimum of problems. (The structure of these referrals and adjudication bodies will be discussed in a later column).

The disciplinary enquiries held internally by the employer should normally be structured as outlined in the disciplinary code of the employer. If there is no disciplinary code then the process defaults to that in Schedule 8 of The Labour Relations Act. Schedule 8 outlines a fair process that must be undertaken by an employer before a recommendation of dismissal can be made by a disciplinary chairperson.

Each disciplinary hearing differs from the next. An employee faced with a disciplinary hearing should receive a written notification to appear at that hearing. The notification should clearly outline the allegations made against the employee. These allegations should be properly outlined so as to enable the employee to fully understand the nature of the alleged wrongdoing.

If this outline is not sufficient the employee has a right for further and better particulars.

Furthermore, the employee also has a right to know who the chairperson will be and the time, date and place of the hearing.

Normally the employees are given at least 48 hours notice of such a hearing and normally they would be entitled to receive a list of documents which will be used at the hearing.

It is incumbent upon the staff member to properly prepare themselves before the disciplinary enquiry and to ensure that if they are going to bring any witnesses that those witnesses are properly briefed and notified before the hearing so as to ensure that they are present when needed at the hearing.

It doesn’t help to say that I do have evidence either on paper or via a witness but I haven’t prepared them for the hearing.

The rules of natural justice do apply to disciplinary enquiries and if there is any proof that the chairperson is biased or is aware of the background to the dispute then the employee or the employee’s representative can call for the chairperson to be recused.

It must be remembered that the chairperson of a disciplinary enquiry merely makes a recommendation to the employer as to what the outcome of the disciplinary hearing should be.

If the employee is a member of a trade union that employee is entitled to be represented by the shop steward or another representative of that trade union.

Furthermore, if the employee is a shop steward him or herself, then they are entitled to be represented by their union officials. If a shop steward is to appear at a disciplinary enquiry it is incumbent upon the management to inform the trade union timeously of the time, date and place of the actual disciplinary hearing.

It is important for all the parties to the hearing to keep their own minutes of the hearing and preferably to record what takes place. These notes and recordings could be used at a later stage if the outcome of the hearing is being challenged in another adjudication process.

Many employers have an internal appeal process as part of their disciplinary code but it is recommended that if the outcome of the disciplinary enquiry is to be challenged that this outcome be challenged immediately at either a bargaining council or at the CCMA.

Some employers have a private arbitration clause in the employment agreement and if this is the case then that challenge would be referred to private arbitration.