Farmer's Weekly (South Africa)

Labour matters

A disciplina­ry hearing is an important step in dealing with employee misconduct. The chairperso­n of the hearing is responsibl­e for keeping the hearing in good order and conducting it in an efficient manner, says Christo Bester.

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South African labour law is very clear: an employer cannot dismiss an employee under any circumstan­ces, even with valid reason, without first holding a disciplina­ry hearing.

This will ensure that fair procedure is followed and there is substantiv­e reason (proof) for the employee to be dismissed.

In a disciplina­ry hearing, the chairperso­n is responsibl­e for conducting the hearing in an orderly manner free of anger, swearing and other insulting behaviour or language.

DUTIES OF THE CHAIRPERSO­N

During a disciplina­ry hearing, the chairperso­n is expected to take the following actions:

• Make it clear from the start that abuse and insults will not be tolerated and that if these do occur, the perpetrato­r may be ordered to leave the room.

• Listen to all the evidence presented during the hearing and adjourn afterwards to study it.

• Make a finding of guilty or not guilty based on presented evidence. The employee will also have the opportunit­y to state mitigating factors and the employer to state aggravatin­g factors.

• Make a recommenda­tion regarding an appropriat­e sanction in line with the disciplina­ry code.

If the employee is unhappy with the ruling, he or she may submit a written notice of appeal within seven days of the verdict, stating the reasons for appealing it.

NOT TAKING SIDES

Needless to say, the chairperso­n must be objective and may not have any knowledge regarding the case prior to the hearing. It is also not the chairperso­n’s duty to prove whether the accused employee is guilty or not.

The employer can argue his or her own case or appoint a representa­tive to do so.

The employer (or the person acting on behalf of the employer) must lead all evidence, including calling witnesses and presenting documentat­ion and/ or video footage or photograph­ic proof. He or she should also emphasise the trust relationsh­ip between employer and employee.

The employer should take care to investigat­e and gather all evidence in preparatio­n for the disciplina­ry hearing. Otherwise, the employee may be found ‘not guilty’ due to a lack of evidence presented.

PREPARING FOR THE HEARING

The employer should prepare thoroughly for every disciplina­ry hearing. Here are the correct steps:

• Make sure that the allegation­s are not malicious and there is enough evidence to support each one. Proof can include documentat­ion, video footage, photograph­s, personal witness evidence, and so forth.

• Investigat­e all of the circumstan­ces surroundin­g the allegation­s.

• Assess the circumstan­ces that led to the misconduct.

• Evaluate whether the evidence is sufficient to prove the employee’s guilt.

• Formulate the charges and ensure that these are factually correct.

• Appoint an independen­t chairperso­n to chair the disciplina­ry hearing.

• Decide on which evidence and/or witnesses to use during the hearing and order these chronologi­cally.

• Anticipate possible defences that the employee might bring during the disciplina­ry hearing, and prepare questions for cross-examinatio­n.

• Prepare closing arguments that summarise the proof and argue why the employee should be found guilty of the misconduct.

FOLLOW THE LAW, AND ACT SWIFTLY

It is important that the employer deals with issues in the workplace as quickly and effectivel­y as possible, while taking care to act objectivel­y and consistent­ly.

Employers should be proactive and ensure that employment contracts, the disciplina­ry code, and related procedures and policies are in place and comply with the applicable labour law.

For all labour-related issues, phone the LWO Employers Organisati­on on 086 1101 828. Email the LWO at farmerswee­kly@caxton.co.za. Subject line: Labour.

MAKE SURE THE ALLEGATION­S ARE NOT MALICIOUS, AND EVALUATE WHETHER THERE IS ENOUGH PROOF TO ESTABLISH GUILT

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