Employees' rights in a hearing and explanation

1.???????Right to prepare.

Once an individual is advised of a pending disciplinary case, he must be given time to prepare for the hearing.?

2.???????Audi alteram partem- The right to be heard

Audi alteram partem (or audiatur et Altera pars) is a Latin word meaning "listen to the other side", or "let the other side be heard as well" or "right to be heard". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.https://www.dhirubhai.net/pulse/audi-alteram-partem-right-heard-takudzwa-kufa

The right to be heard does not necessarily mean one has to attend in person, but must be given the opportunity to be heard.?He can submit report or relevant information to allow a decision to be made.?Where one abdicates his right to be heard, the hearing proceeds without him

3.???????Right of employee to call all evidence to the case.

The employee must be allowed to bring or get all evidence to the case; this includes reasonable access to all evidence, documents or exhibits to be used in the case.?Where the employee has not seen all the evidence at the time of the hearing, it is within his right to request for time to study the evidence and prepare his defence or give instruction to his representative.?The employer also has a right to access the documents, exhibits and the other materials to be used by the workers in advance to allow for preparation of his case.

Withholding information until the time of a hearing has the following problems:

• ?Hearing gets delayed with one part requesting time to study evidence and put together a defence.
• It raises tempers during a hearing as it breeds a feeling of mistrust.
• One part can object to new evidence being introduced at a hearing, particularly at appeal level, resulting in an unfair conclusion of a case.
• The focus of the hearing is compromised as parties battle over the accommodation of new evidence.

4.???????Right of employee to cross examine or question all witnesses.

For the witness’s evidence to be acceptable at a hearing, both parties must have had an opportunity to cross examine him.?Evidence of people who only write reports and refuse to submit themselves to cross examination must not be relied upon as its validity has not been tested.?While at times, it can be useful it must be treated with caution.

5.???????Right of employee to be represented and assisted by person of his choice at his cost.?

?The parties to a hearing have a right to be represented.?Not only does the worker have a right to be represented, but the employer can also elect to be represented.?Presently, most Code of Conduct allow anybody knowledgeable in labour matters such as a co-worker, trade unionist, workers committee representatives, or lawyer to represent a party at a labour hearing.

?The chairperson must be careful to avoid complicating a case once outsiders are involved they can make a simple matter very technical and legalistic.

6.???????Right of employee to use a language of his choice.

?The right must be exercised within the confines of the constitution except in exceptional circumstances. For example, English, Ndebele and Shona are the main languages, but as an exception where there is evidence that the individual does not know any of these languages, provision for use of the language he understands must be given

7.???????Right of employee to full reasons in writing of whatever action is taken.

?Once a determination is made, it must be communicated in writing with full reasons for arriving at such a decision.

?Problems when reasons for the decision are not given in writing:

• Making an appeal is not possible.
• Suspicion rises as verbal reasons are open to changes.
• Absence of reason raises allegations of victimisation.

8.???????Right to be informed of right to appeal.

Not only do regulations demand that the parties to a disciplinary hearing be told of their right to appeal, but it is part of the process of natural justice.

While it can be argued that the right to appeal is covered in the Code of Conduct, it is better to have the right documented as part of the record at the end of the written determination. This helps eliminate any dispute related to notification of the right to appeal.

9.???????Right to be given time to respond to allegations.

There must be adequate time to consult, seek advice and instruct a representative on the matter at least three working days are reasonable time.

10.????Right to access members of the union or other representatives of his choice.

Where a worker is suspended employer must ensure reasonable access to repetitive at work without unnecessarily disrupting work.

11.????Right to have an impartial hearing.

When a hearing is conducted it must observe set procedures, at the same time there must be no bas towards any one side.

?Bias is a common problem where the hearing official or committee sides with one side or one side is allowed certain submissions and the other side is denied the right to do the same.?For example, the complainant is allowed to cross-examine all the defendant’s witnesses, but the defendant is denied a similar opportunity with the complainant’s witness.?At times the hearing officials express an opinion prior to a hearing, making their impartiality suspect.