In most cases employees receive a notice of a
disciplinary hearing involving them. Such notice does not include full
information pertaining to the charge or charges. One can make an educated guess
about what the charge is related to, but nothing can be said with absolute
certainty. In some cases, the employee has no idea whatsoever what the charge is
If you find anything uncertain or vague in the charge
sheet, ask questions and find out. Don’t guess because if your guess is wrong
you will be unprepared in the hearing. An employer is obliged to give the
employee all the relevant information to enable him or her to properly prepare
for the hearing.
One of the elements of a fair dismissal is that the
process followed must have been procedurally fair. This means that a proper
process must have been followed and the employee must have been given a proper
opportunity to prepare him or herself for the hearing. This was confirmed in
the case of Samtor Tankers (Pty) Ltd v
Kule (1993) 14 ILJ 1038 (LAC).
However, this does not mean that the charge sheet must
meet the same strict requirements a criminal charge sheet has to comply with. It
must just contain sufficient information so that an employee knows or can
reasonably know what the charges against him or her involve. This principle was
confirmed in the case of Nitrophoska
(Pty) Ltd v CCMA & Others (2011) 32 ILJ 1981 (LC).
Moreover, if you need any documents, policies or
similar documentary evidence to enable you to state your case, such information
can be requested from the employer beforehand. If the employer declines the
request the information must again be requested during the hearing. If the
chairperson still refuses a reasonable request one could make a case for
procedural unfairness at the CCMA.
Should you have any further enquiries in this regard, or
should you have enquiries about any other labour law matter, please feel free
to contact us on 0861 25 24 23 or send an e-mail to firstname.lastname@example.org.
Author: Leandri Engelbrecht