Disciplinary Hearings: Employer Rights and Obligations

Disciplinary Hearings: Employer Rights and Obligations

This is the third blog in the 'Disciplinary hearings' series. The first blog entitled 'Disciplinary hearings: The process' covered the process a disciplinary hearing needs to follow in order to be a fair hearing. This, the second part of the series, focused on the rights of the employees during a disciplinary hearing. This, the third blog in the series, will explore the obligations of the employer during a disciplinary hearing and provide a checklist for the process.

If an employer decides to pursue disciplinary action against one of their employees, a disciplinary hearing should be arranged. To conduct this process fairly, the employer has certain obligations they must adhere to as well as steps they should take before the hearing takes place.

Rights of the employer

To take disciplinary action

It is the right of every employer to protect their business from harm; therefore, when an employee is suspected of committing misconduct, the employer has a right to take disciplinary action. This is because misconducts can lead to damaging of reputation, financial losses, among other things.

To keep a record of what is said during the hearing

During the hearing, the employer has the right to send in a representative in that will not take part in the hearing but instead take down notes. This also forms part of the employer obligations as records should be made of all disciplinary hearings. These notes are imperative in case the decision of the hearing is appealed, or the employer is taken to the CCMA for wrongful dismissal, for example.

To be represented by HR during hearings

In big companies, the employer may not always be able to attend disciplinary hearings. In this case, the employer can be represented by a manager or an HR representative.

Obligations

Alert employee of the disciplinary hearing and allegations

The employer is obligated, under no exceptions, to alert the employee of the allegations brought against them as well as what type of disciplinary action will be taken. In the case of a disciplinary hearing, the employee must be informed of the date, time and place it will be held.

Provide accused with documentation

When the employee is alerted to the fact that there will be a disciplinary hearing, the employer has to provide them with detailed documentation of the allegations as well as the evidence they have against the employee. This, therefore, allows the employee to put a defence together. 

Ensure they have sufficient evidence

A disciplinary can be an extremely stressful time for the accused employee and brings their character into question. Therefore these matters need to be done only when there is sufficient evidence to justify the disciplinary action. If the employer does not have sufficient evidence, they could lose the battle and find themselves at the end of a sticky lawsuit for defamation.

 Ensure a fair hearing

Every employer has an obligation to ensure that every disciplinary hearing is fair. In order to do this, employers need to get an impartial and independent person to chair the hearing as well as follow the CCMA's disciplinary hearing protocol. If the employer conducts an unfair hearing, the employee has the right to take them to the CCMA, which can result in the employee being awarded financial damages.

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