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.

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