Disciplinary Hearing

How to Ensure a Fair Disciplinary Hearing

As an employer, it is essential to comply with the labour laws of the country to prevent having to pay penalties or damages and having to reinstate an employee, even if dismissing the employee was necessary because of their actions. The reason for dismissal must be fair and the procedures followed must also be fair. Even if you only plan to take disciplinary steps, it is very important to follow correct procedures in conducting a disciplinary hearing. The disciplinary hearing is one of the procedures to follow in disciplining or dismissing the employee. As such, a checklist is provided below to help you make sure that it is done correctly to ensure procedural fairness:

  • Make sure you have a written document stating the original complaint against the employee.
  • Investigate the complaint properly and document it in writing.
  • Gather written witness statements.
  • Notify the employee in writing of the hearing date, the complaint against them, and its details.
  • Make sure the employee is notified, preferably in writing, of their rights.
  • Provide copies of all the written complaints and statements against them.
  • Appoint a person in the role of chairperson for the disciplinary hearing.
  • Conduct the disciplinary hearing.
  • Provide the employee opportunity to plead guilty or not guilty on the charges.
  • Let the employee state their case first.
  • Let the employee call their witnesses.
  • State your case.
  • Call your witnesses.
  • Ensure that the employee has time to cross-examine your witnesses.
  • The disciplinary hearing is adjourned.
  • The chairperson reviews all the evidence given.
  • Minutes of the hearing is transcribed.
  • A copy of the minutes must be given to the accused employee.
  • The chairperson reviews evidence given and decides on the issue.
  • The disciplinary hearing is reconvened and the verdict given.
  • The verdict must be confirmed in writing.
  • The accused employee is given the opportunity to make a statement.
  • The chairperson considers the statement of the employee.
  • The sanction is given.
  • The meeting is adjourned.
  • The chairperson advises the employee of their right to appeal or refer the issue to the CCMA.

The Employee’s Rights

The employee has specific rights that must be respected. This includes the right to have a full explanation of charges and the right to have time to prepare for the disciplinary hearing, as they have the right to defend themselves against the allegations brought. The Labour Relations Act states the right to fair treatment, including the right not to be dismissed without proper procedure and fair reason. Though the law does not stipulate the exact time that you should give the employee for preparation, a fair time is at least 24 hours. However, if the charges brought against the employee are complex and serious, they should be given more time.

The employee must also understand the charges brought against them. You must thus ensure that the charges are described properly. To simply state “fraud” or “theft” is not sufficient. The details of the charge must be sufficient to allow the employee opportunity to understand and prepare their defence. The employee furthermore has the right to access documents that you intend to use in the disciplinary hearing. If you, for instance, called for a disciplinary hearing to investigate the employee’s gross insubordination and plan to submit written proof, you should allow the employee the right to review the document you want to use as evidence in the disciplinary hearing.

If the employee requests further clarity on the charges against them, you should respond to the request with further details. If the request for postponement of the hearing is reasonable it is also better to give more time as the chairperson, CCMA, Labour Court, or High Court may rule against you as employer if you fail to respect the employee’s rights. Keep in mind that, if you allow the employee the right to an attorney, you must ensure that the chairperson and your representative have the legal expertise to ensure fairness in the hearing. It is essential to have a written policy on dismissals and disciplinary hearings and sanctions. Give your employees access to it to ensure they understand their rights. Get legal assistance in drafting the policy and get guidance on how to conduct a disciplinary hearing to ensure fairness in procedure.

Contact us at reception@www.allardyce.co.za or on (011) 234 2125 for professional legal guidance and representation.


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.

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