Disciplinary Hearing Advice for Employers in South Africa
Allardyce & Partners offers you as employer or employee our legal expertise, disciplinary hearing advice, representation of the employee where permitted and prosecution on behalf of the employer where required. Apart from disciplinary hearing advice, we also assist with internal grievance or disciplinary and incapacity enquiries.
It is essential to conduct a disciplinary hearing in accordance with the regulations of the Labour Relations Act regarding fair procedures. According to the act, the employer must investigate any misconduct by the employee first to determine whether there are sufficient and valid reasons for taking specific disciplinary steps. The employer must notify the said employee of any specific allegations and provide the employee with a fair amount of time, which entails at least 24 hours to develop a response and prepare for a hearing. The employee does have the right to have a fellow employee or someone from the relevant trade union represent him or her against the allegations. The employee can only have a lawyer as representative at the disciplinary hearing if so allowed by the employer.
The employee has the right to clear communication from the employer regarding the disciplinary action or the decision that the employer has taken. The employer does not have to communicate the decision in writing, though it is recommended. The employee has the right to know why he/she is dismissed and the employer should remind the employee of their right to refer the issue to the relevant council or commission, or to resolve the dispute according to the rules of the industry’s collective agreement.
The disciplinary hearing does not have to be formal. The employer must, however, give the employee proper audience with regards to the employee’s defence against the allegation. If the employer adheres to the above rules, the action is considered fair. If the employer follows a disciplinary code of conduct drawn up by the employer, then such code must be in line with the LRA provisions and the employer must adhere to the rules of the internal code of conduct. It should be noted that the employer must have sufficient proof of the probability of misconduct and doesn’t have to prove the probabilities beyond any reasonable doubt.
Disciplinary hearings form an integral part of labour relations in South Africa and though often perceived as pure prosecution by the employer, when conducted fairly, such hearings should provide the employee with sufficient opportunity to defend against allegations of misconduct. The employee, however, should have enough time to prepare for the defence and therefore a minimum of one day is regarded as sufficient, though depending on the severity and complexity of the allegations, the employee should have more days for preparation where relevant.
As part of the right to prepare, the employee should have access to any documentation relevant to the allegations, including documents that the employer plans to use in support of the allegations at the disciplinary hearing. Furthermore, the employee has the right to understand the allegations or charges brought, as vague allegations, such as theft, will be insufficient, therefore the exact details regarding such must be explained. An employer may not withhold relevant documents and does not have the right to decide which documents the employee may need.
Where an employer allows for legal representation of the employee at the disciplinary hearing, the employer should see to it that the person chairing the hearing and the employer representation have the legal expertise to oppose or hear the employee’s lawyer.
Allardyce & Partners assist in chairing of disciplinary hearings, provides disciplinary hearing advice, and offers representation services. Benefit from our expertise whether you are an employer, employee, trade union or employer organisation.
Contact us at firstname.lastname@example.org or on 011 234 2125 for assistance regarding any aspects of disciplinary hearings in South Africa.
NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.