Disciplinary Hearings by MRT LAW's Labour Law Expert, Zikhona Ndlebe.

In the employment world, there are usually situations that cannot be resolved without a disciplinary hearing being undertaken. Disciplinary hearings should not be taken lightly because the outcome of a disciplinary hearing has a far-reaching effect on both the employer and the employee. Therefore, disciplinary hearings must conducted correctly. This article considers the important aspects of disciplinary hearings and aims to provide clarity into how disciplinary hearings should be conducted.

WHAT IS A DISCIPLINARY HEARING?

A disciplinary hearing is an internal process followed by an employer who is dissatisfied with an employee. The dissatisfaction usually stems from the conduct or capacity of an employee. The purpose of a disciplinary hearing is to ventilate into the reasons for the employer’s dissatisfaction with the employee. The disciplinary is also aimed at providing an employee with the opportunity to state their defence in respect of the employee’s dissatisfaction.

HOW IS A DISCIPLINARY HEARING COMMENCED?

A disciplinary hearing is commenced by an employer by providing an employee with a notice to attend a disciplinary hearing (“the notice”). First and foremost, the notice must state the date, time and place where the disciplinary hearing will be conducted. The notice must stipulate exactly what the allegations are, made by the employer against the employee. Such allegations may vary from misconduct, gross misconduct, negligence, gross negligence, insubordination, gross insubordination, insolence and unauthorised absenteeism (this is not a closed list). It is not enough for an employer to merely state one or more of the examples provided herein. It is necessary that the employer provides a clear narrative of the allegations made against an employee. This will enable an employee to adequately prepare for the disciplinary hearing.

The notice must inform the employee of their right to have an interpreter, should this be necessary. The notice must further outline the process that will be followed during the disciplinary hearing and the rights of the employee during the disciplinary hearing. The notice usually states that evidence will be led by the employer to prove the allegations made against the employee. The notice must state that the employee has the right to be represented by a fellow employee or a trade union representative (if the employee is a member of a trade union). The notice must also inform the employee of their right to cross-examine any witness who may present evidence against them. The notice must also inform the employee that they are entitled to state their case, furnish evidence, and present argument in respect of the allegations made by the employer. The notice must further inform the employee of their right to call witnesses to give evidence on their behalf. It is also particularly important that the employee is informed that should they not attend the disciplinary hearing the disciplinary hearing may continue in their absence and findings and a sanction may be made in the employee’s absence. Such sanction will remain in the file of the employee even if the employee did not attend the disciplinary hearing.

THE ROLE PLAYERS IN A DISCIPLINARY HEARING?

The disciplinary hearing must be chaired by an independent and impartial chairperson. The chairperson is appointed by the employer. The function of the chairperson is to ensure that the disciplinary hearing is fair and is conducted in an orderly manner. The chairperson must provide both parties to the disciplinary hearing with the fair opportunity to state their cases. The chairperson must listen to all the evidence provided by the parties to the disciplinary hearing. At the end of the disciplinary hearing, the chairperson must adjourn to type up the minutes of the disciplinary hearing and to consider the evidence led during the disciplinary by both parties. The chairperson must thereafter make findings and propose a sanction based on the evidence before him or her. The chairperson must reconvene the disciplinary hearing to communicate his or her findings and proposed sanction to the employer and the employee. The employer has the discretion whether to adopt the proposed sanction of the chairperson.

The representative of the employer in a disciplinary hearing is called the initiator. The purpose of the initiator is to present the employer’s case and lead evidence on behalf of the employer. The initiator may adduce documentary evidence on behalf of the employer or call witnesses to testify on behalf of the employer.

The employee may represent themselves or be represented by a fellow employee or by a trade union representative (should the employee be a member of a trade union). The employee may also adduce documentary evidence in support of their case and/or call witnesses to testify on their behalf.

IS LEGAL REPRESENTATION ALLOWED IN A DISCIPLINARY HEARING? 

 The Labour Relations Act, Act 66 of 1995 (“the LRA”) does not expressly deal with the above question. Item 4(1) of the Code of Good Practice that is encompassed in Schedule 8 of the LRA, states that when an employee is charged for misconduct, the employee is allowed and should be given reasonable time to prepare the response and to the assistance by trade union or a fellow employee. The code does not make any mention of legal representation. However, notwithstanding the abovementioned point, should an employee require the assistance of a lawyer, a formal application must be made to the chairperson of the disciplinary hearing. The chairperson has the discretion whether to allow external third parties in the disciplinary hearing. Whether the chairperson allows a legal representative in the disciplinary hearing will depend on various factors. The factors to be considered by the chairperson are the provisions of the company policy, the serious nature and complexity of the matter (point of law or merits of the matter), the severity of the consequences of an adverse finding at the conclusion of the disciplinary hearing and the potential adverse effects on the employee and the employer should legal representation not be allowed by the chairperson. The decision by the chairperson is final. Should the chairperson decide not to allow legal representation in the disciplinary, the employee has the right to refer a dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or Bargaining Council for procedural unfairness at the conclusion of the disciplinary hearing.

Should the employee not be satisfied with the outcome of the disciplinary hearing, the employee has the right to lodge an internal appeal, alternatively refer a dispute to the CCMA or Bargaining Council.

This article should not be construed as legal advice but as general information. Should you require legal assistance in respect of a disciplinary hearing, you may contact our labour law consultant Ms Zikhona Ndlebe.