By Emsie Martin
In every business there are rules. When these rules are transgressed and the misconduct is serious, the employer can proceed with a disciplinary hearing – but how, and what are the correct steps?
You have just been informed that a disciplinary hearing against you will take place. The manager explains that you are on paid leave until the disciplinary hearing has been concluded and a ruling is made, but you do have the opportunity to explain why you shouldn’t be suspended. Ouch – you know nothing about legal matters – how can you know what to do and how to defend yourself against unfair accusations?
Few people understand how a disciplinary hearing must proceed, what the employer’s rights are in such a hearing and what the rights are of the accused employee. As an employee it is your opportunity to reply to the charge against you. If you don’t do it correctly, the consequences are serious – depending on what you are being charged with, you could possibly lose your job and even end up with a blot on your name.
Steps to be followed during a disciplinary hearing:
- A notice is issued to the employee to attend a disciplinary hearing. The notice must indicate the date, time and venue where the hearing will take place.
- The notice must also contain a detailed description of the charge(s) against the employee, including the date, time and description of the incident(s).
- Employees must give the employee at least 48 hours’ notice of the hearing, weekends and public holidays excluded, to allow the employee to prepare for the hearing.
- The hearing must be held on the proposed date and time.
If the employee does not turn up for the hearing, it must still proceed (in absentia), and the employer can continue by submitting proof to the presiding officer. The presiding officer will determine whether the employee received adequate notice of the hearing and whether or not the employee is absent with a valid reason.
- During the hearing the presiding officer will ask the employee to plead guilty or not guilty to the charges brought against him or her.
The employer puts his case by submitting proof and calling witnesses.
- The employee is then allowed to put his or her case and cross-question the proof submitted by the employer.
- The employer may cross-question the employee’s proof and witnesses. After conclusion of the disciplinary hearing both parties will present closing arguments.
- The presiding officer must make a ruling of guilty or not guilty.
After conclusion of the closing arguments, the employer will be asked to submit aggravating circumstances.
- The employee will be asked to submit extenuating circumstances. The presiding officer will then determine the appropriate sanction. If the sanction is dismissal, the employee can be dismissed with immediate effect.
- A disciplinary hearing can be formal or informal, but it is very important that the employer must be able to prove that the hearing did indeed take place. This is why it is recommended that employers hold a formal hearing so that they can ensure that all the paper work is in order should the case be referred to the Council for Conciliation, Mediation and Arbitration (CCMA).
- The presiding officer must be an objective and impartial third party in the case, preferably with a knowledge of labour law.
- Employers must take note that the presiding officer is not responsible for proving the employer’s case and cannot assist to prove the employee’s guilt.
- At the CCMA it is important to be able to prove that the presiding officer was not biased.
What course of action can a person take if he or she feels the dismissal was unfair?
If an employee wishes to refer a case to the CCMA, form LRA 7.11 must be completed. This document is available free of charge from the offices of the CCMA and can also be downloaded at www.ccma.org.za. They can also be obtained free of charge by merely sending an email to email@example.com with the words LRA 7.11 in the message bar.
The form is user-friendly and comprises only five pages. Persons who have problems completing the form can approach the CCMA and/or the department of labour for assistance.
It is important to take note that the form must be referred within 30 days from the date of dismissal. After expiry of the 30-days period applicants will have to apply for condonation and among others explain why the case was not referred within 30 days, the possibility of success etc.
After completion of form LRA 7.11 the person who referred the dispute must inform the employer of the referral. For more information contact firstname.lastname@example.org
Solidarity’s Occupational Guild for Labour Relationship Specialists is a partner in this profession and offers a network of work within the environment of labour relations. Places of work are increasingly under pressure with new issues and disputes that come up daily. Labour relations specialists must stay abreast of amendments to acts, court verdicts, the management of complex relationships between employees, trade unions with diverse approaches, the human resources function and management, and all of these under sometimes difficult and stressful circumstances.