Down the Rabbit Hole with Caron: Defending in a Disciplinary Hearing

Welcome to Down the Rabbit Hole with Caron... today I will dig a little deeper and explore how a person may defend themselves if they have been summoned to a disciplinary hearing.

It's common to feel overwhelmed and not know where to start building your defence, so hopefully this blog will help. This is also a useful read for anyone initiating a disciplinary hearing, for union shop stewards, and for anyone asked to act as an employee representative.

It is very important to decide whether you'll be representing yourself, or whether you'll make use of a fellow employee to act as your representative, or, if you are a shop steward, a union representative.

The first step will be to carefully read all the charges, and ensure that you know all you can about them. You should know when, where and how the behaviour allegedly contravened a workplace rule, so that you have the best chance of creating a solid defence.

If you feel that you have in fact broken the rules and that you're guilty on any of the charges, then you should carefully consider the company's schedule of offences to see what the company should be asking for in terms of sanction. If you have an existing disciplinary record, you'll need to be aware of how that will affect progressive disciplinary sanctions. If you already have a valid final written warning on your file for absence without leave, and you have committed the offence again, then you can reasonably expect that dismissal may be the logical sanction.

However, even if you are guilty, a show of genuine remorse and desire to improve can go a long way in saving you from dismissal! Presenting the right mitigation (i.e. reasons which can make the chairperson more lenient) is also important. Good mitigation could be, for example, that if you are dismissed, it will bring terrible hardship on your family as you're the sole breadwinner and support x number of people and your wife is disabled etc. Try to present yourself as a human being with all the human aspects, to elicit a sympathetic response from the chairperson.

If you feel that you are innocent of the charges, then you'll need to make sure you have the right sort of evidence to back you up.

Now, in disciplinary hearings as well as in the legal arena, the general rule of law is that he who alleges, must prove. What that means is that whoever makes an accusation has to prove the accusation is true. Proving that an accusation or charge is true requires evidence to be presented to the chairperson.

Evidence can take different forms, and not all supposed evidence is admissible in a hearing (but I'll go through that a bit later on).

Types of evidence that can be presented:

1. Oral evidence, which is given by an eye-witness or expert witness during the hearing.

2. Documentary evidence, which is any document given during the hearing, such as minutes of meetings, printed emails, polygraph reports etc.

3. Real evidence, which is the actual object which is presented, such as a forged doctor's note, or an item which was found in the accused's possession when accused of theft, for example.

4. Video evidence, which will be recorded evidence of the incident from a security camera, for example.

Inadmissible evidence, or evidence that you can ask to be excluded / object to, includes:

1. Privileged information, or any information which is obtained through breaching constitutional rights : for example a voice recording taken without permission or in secret is not admissible, nor is any private doctor's report that the employee has not given consent to being shared.

2. Hearsay evidence is not admissible. Hearsay is essentially when a witness gives second-hand testimony, for example “I think Bob is guilty because I heard Janet saying she had seen the incident”. So, if the person presenting a certain piece of evidence did not directly observe the incident, they cannot present testimony about it. A witness can only give testimony if they were directly involved.

3. Opinion is not acceptable as evidence unless the person giving the opinion is an expert witness. An expert witness could be, for example, a polygraph tester, or a handwriting expert.

4. Any evidence that is presented that isn't directly related to the case is not admissible, this can include “Character” references or previous incidents / occurences. The only time previous incidents can be raised is in aggravation of sentence.

When evidence is produced against you, you have the right to call its admissibility and authenticity into question. I'll give several examples:

1. If a witness says that they heard another employee complaining about an incident, this is hearsay. They didn't witness the incident themselves, so cannot be an eye-witness.

2. If a charge says that a signature is forged, then the person making the accusation has to prove it was forged, and that it was specifically forged by the person accused of forging it. You can also question a person's assertion that the signature is forged, even if they say that they didn't sign it – after all, does everyone remember everything they sign? In this instance, a person should always be aware that sometimes evidence is fabricated. If an accused person did not forge a signature, they have every right to ask their accuser for expert proof that the said signature was a forgery (and not just a forgotten document amongst hundreds of other documents), and that the person who forged it was the accused.

3. If a witness says that they smelt alcohol on a person, but there is no breathalyzer / urine test result and no observation report, this can be challenged because there is no collaborative evidence for the opinion.

4. If an accuser presents as evidence social media posts that the accused made in a private group, this can absolutely be challenged as a violation of the accused's right to privacy in their personal life, especially if the posts have no way of being connected to the company or the company's reputation.

5. If a private doctor's report is given in as evidence, but the accused did not consent to it being given in, then this isn't allowable since it violates the confidentiality between the doctor and the accused.

The point with the examples above is simply that just because evidence is presented, doesn't mean that firstly it is admissible, and secondly that you cannot challenge it.

When it comes to witnesses being called in a hearing, the procedure is that whoever calls them can ask questions first, and then the other party may ask the witness questions (cross-examination) to try to trip them up or clarify or elaborate on the situation. Finally, the person who first called the witness is allowed to ask a final set of questions (re-examination) if any new facts come up during cross-examination.

Tips for handling questioning:

1. Don't coach your witnesses on what to say beforehand, but do tell them what your questions will be about. Always tell them to be truthful.

2. When the company calls their own witnesses, always take notes if you pick up that the witness may be hiding something or may be remembering wrong, or even may be lying.

3. When it is your turn to cross-examine, ask questions which could highlight any inconsistencies or contradictions. For example, Sipho says that he saw you taking a long break, but you know Sipho was away on a delivery at the time that the incident was supposed to have happened. You could then ask him if he remembers what time he got back from his delivery, and similar types of questions.

4. Avoid asking leading questions, and challenge it if your accuser asks leading questions. These are questions which are phrased in such a way as to encourage a certain answer, and is often based on an assumption. Straight-forward, open-ended questions are best. It is however okay to ask leading questions when you are cross-examining a witness.

5. Ask your questions calmly, and never raise your voice or get angry. Keep your temper under control, no matter how upset you may get.

6. A witness is there to answer questions, not to ask them.

7. When you are asked a question, address your answer to the chairperson, not to the person asking. Remember to take your time to consider and phrase your answer correctly.

Be sure to have all the evidence you need at hand, and if there is evidence you need that you can't access, then ask the employer for it. For example, if you are accused of stealing someone's lunch, but your clocking records show that you had left work early on that specific day, then you can ask the employer for copies of this. Any reasonable employee will allow such a request. Have extra copies of any documentary evidence available in case the chairperson needs to keep a copy.

Once you have finished presenting your evidence and questioning all witnesses, you'll need to give a closing statement. This closing statement can be powerful, because it summarises the strengths of your case, the weaknesses in the company's case, and highlights any contradictions or inconsistencies which have been shown during the hearing. If anything has been presented makes you feel remorseful, you can express this too.

Once the chairperson has asked for mitigation and aggravation (covered in my second article), then they will adjourn to decide on their findings. At this point, you can't add any new evidence. You've had your chance to present your case.

There are a few things though, that the average person may not know, which could affect the outcome. These are definitely things that an accused person should be aware of!

Firstly, the chairperson should be impartial / unbiased, and should not have prior knowledge of the incident. This means that a chairperson can't have anything to do with the substance of the hearing before the actual hearing! That means they can't help design the charges or guide the investigation. This is definitely something to be aware of as an accused employee. Some companies make use of outsourced companies to chair their hearings – this can sometimes also create bias, since the outsourced company is paid by the employer. If an accused employee is certain that the chairperson is biased, they can object and request a different chairperson, or even a CCMA appointed chairperson.

Secondly, any warnings presented as aggravation need to be valid, and relevant. A warning has a limited duration and expires after a certain time. Therefore, an expired final written warning can't be presented as the employee being on the top of the progressive discipline ladder(however it can be presented as evidence to show a history of similar issues). Similarly, an unrelated warning can't be used for progressive discipline: so a final written warning for absence without leave can't be the final rung on the ladder if the offence is for swearing at a colleague.

Thirdly, the company has to prove the following in order for their prosecution to be valid:

1. That the accused employee broke a workplace rule / standard.

2. That the rule / standard was fair and reasonable.

3. That the employee was aware of the rule, or could have reasonably been expected to be aware of the rule.

4. That the rule has been applied consistently in similar cases. That is, there is one rule for all, and everyone is treated the same if they break the rule.

So, with these above 4 points in mind, if a company hasn't got a code of conduct and schedule of offences, their case is weakened. Also, if they let another employee get away with the behaviour but persecute you, that is unfair and can derail their entire case.

Of course, sometimes there will be a dismissal, which is why employees who are fired have the right to refer a dispute to the CCMA (or relevant bargaining council) within a specific time-frame. I'll be doing a follow up article about how to refer a dispute to the relevant dispute resolution body.

Thank you for reading!