Get Legal Help with Disciplinary Hearing Procedures in South Africa
The employee may only have legal representation at a disciplinary hearing if the employer agrees to it. However, the employee may still seek legal help with disciplinary hearing proceedings. In the instance where the employee is allowed legal representation, the employer will in most instances also have legal representation.
What are the rights of the employee?
The employee should be given a reasonable time to respond to the allegations and enough time to prepare for the disciplinary hearing. This is where it becomes beneficial to have legal help, as the attorneys will assist in proper preparation for the employee’s defence.
According to Schedule 8 of the Labour Relations Act, the employer cannot just dismiss the employee for misconduct. A thorough investigation must be conducted to determine if the employee’s conduct offers enough grounds for disciplinary action and subsequent dismissal. It must be noted that the enquiry doesn’t have to be formal.
Although the employee is not necessarily entitled to legal help with disciplinary proceedings, the employee may have a trade union representative or another employee assist in preparation and defence.
Procedural fairness requirements include notification of the allegations in an understandable format, reasonable time to prepare a defence against the allegations, opportunity to state the defence during the disciplinary hearing and the right to be assisted by a fellow employee, trade union representative or where allowed, obtain legal help. The employee must be informed about the disciplinary sanction decision and be given clear reasons for the dismissal, while the employer must also ensure that full records are kept regarding the disciplinary actions taken and for what reasons, as well as details regarding the misconduct.
What Happens after the Disciplinary Hearing?
If the allegations against the employee are proven to be true and warrant dismissal, the employer must provide the reason for the dismissal and should inform the employee of his/her right to appeal to the Commission or a relevant Council or rights according to dispute resolution procedures where a relevant collective agreement is in place.
The Nature of the Disciplinary Hearing
Note that the employer only has to provide the employee with a fair chance to state his/her defence against the allegations. As such, the hearing does not have to take on a court character. Informal disciplinary hearings are far more common in the workplace. Where the employer has their disciplinary procedures then such can be followed. However, where an employer does not have their own procedures in place, the employer must follow the rules set out in the LRA and should apply such consistently to all employees regarding any form of misconduct.
The LRA allows for three reasons to dismiss an employee:
- Incapacity of the employee.
- Misconduct by the employee.
- Operational needs of the employer.
Even if the dismissal is done for one of the above reasons, the employer must still follow the correct procedure. It is essential for the disciplinary hearing Chairperson to determine whether or not the employer has followed fair procedure regarding the disciplinary hearing and the dismissal.
How the Chairperson Determines Fairness in Procedure
The Chairperson should review the evidence submitted to determine whether the accused employee is indeed guilty or whether the person is innocent regarding the allegations brought against him/her. Should the Chairperson find that the employee is guilty, it is the Chairperson’s responsibility to decide on a sanction only after having considered all factors.
It is imperative that the Chairperson first review the process followed from the initial allegations to the closure of the hearing to determine whether the employer has followed fair procedure. Part of this process entails reviewing whether the employee has been given enough opportunity to examine documents, prepare for the hearing, had been given fair chance to state his/her defence and whether the employee understood the allegations. In addition, the Chairperson should review the notification of the allegations. Only after the Chairperson reviewed the above, can he/she consider the evidence presented in support of the allegations and in defence against such allegations.
Once the Chairperson has done the above, then only can the Chairperson decide on a relevant sanction if the employee is found guilty. As part of this process, the Chairperson must consider factors such as the disciplinary record of the employee, the period of employment, consistency of the sanction in relation to similar conduct, the employee’s personal circumstances, and also the circumstances surrounding the misconduct or incapacity of the employee.
Contact Allardyce & Partners at reception@www.allardyce.co.za or on 011 234 2125 for legal help with disciplinary hearing representation or Chairing.
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.
