Labour Law Attorneys on Aspects of the Disciplinary Hearings
Allardyce & Partners are labour law attorneys representing trade unions, employer organisations, employers and employees in South Africa. We offer services such as:
- Legal advice on all labour and employment law aspects
- Legal presentation at Bargaining Councils, Labour Court and the Labour Appeal Court, High Court, Supreme Court of Appeals and the Constitutional Court.
- Retrenchments and restructuring.
- Advice and management regarding Health & Safety requirements.
- Strikes and picketing.
- In-house training regarding employment law including, for instance, Skills Development & Employment Equity and B-BBEE.
- Setting up codes, policy and procedure manuals.
- Chairing of disciplinary hearings.
- Prosecuting disciplinary hearings for employers.
- Representing the employee when permitted in disciplinary hearings, incapacity enquiries, and internal grievance proceedings.
Our labour law attorneys also provide information and guidance regarding the correct procedures to follow during disciplinary hearings, such as the brief introduction to such proceedings provided below.
Correct Procedures
Schedule 8 of the Labour Relations Act focuses specifically on the correct proceedings and various elements involved in a disciplinary hearing. Such stipulates, for instance, that whenever an employee is suspected of misconduct that the employer needs to commence a proper investigation to establish whether the misconduct justifies disciplinary action or dismissal of the employee. It doesn’t have to be a formal enquiry, but the employer must inform the employee of any allegations against him or her using terms understandable to the employee.
The employee should have at least two or more working days to prepare for the disciplinary hearing and has the right to approach a relevant trade union for representation, can ask another employee or, where permitted, can hire labour law attorneys to represent him/her during the disciplinary hearing.
The outcome of the enquiry should be communicated to the employee. Although it does not have to be in writing, it is certainly recommended. Should the employee face dismissal, he or she should be given the reasons for such and the employer has to remind the employee, if relevant, of the right to approach a Bargaining Council or the Commission for Conciliation Mediation and Arbitration.
An employee has a right to procedural fairness during a disciplinary hearing. The employer does not have to hold a formal court-like hearing. The employer, however, must give the employee the chance to state his or her case during a hearing. This type of hearing is often referred to as an informal disciplinary hearing.
Introduction to the Disciplinary Hearing
When it comes to a formal disciplinary hearing, it should be noted that all proceedings should be recorded in writing. It is essential to ensure comprehensive minute taking. Both the employer and employee must get copies of the said minutes – whether the minutes are audio-recorded or written. The minutes may only be presented in audio-recording format if none of the parties object. The accused employee has the right to legal representation by a labour law attorney if the employer agrees to it.
For any formal disciplinary hearing there should be a chairman, interpreter where needed, the complainant (employer) and the respondent (employee), as well as the representative of the respondent. The Chairman should properly introduce him/herself and should record details of the proceedings in advance where possible, including the details of the participants, venue, date, time, and the role of each party. The Chairman also introduces the parties to each other. If the interpreter present is also a witness then another interpreter must be used. The hearing starts and each party delivers and opening statement, though it is not compulsory.
If an opening statement is delivered, it should include at least a short summary of the case, facts which are not disputed and facts which are disputed, as well as what the Chairman needs to decide and how the party plans to argue the case and desired results.
It is followed by the Chairman’s statement about the purpose of the hearing and asking the respondent whether he/she understands the charges and details, such as whether notification was received regarding the charges and enough time given to prepare the defense. The complainant then calls relevant witnesses where after the Chairman calls the respondent to call witnesses. Cross questioning of witnesses forms an important part of the process.
The proceedings are adjourned and the minutes are typed. The Chairman studies the evidence and makes a decision. If the respondent is guilty the Chairman decides what sanction to impose and informs the respondent in writing about the outcome.
*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.
