Guilty pleas at internal disciplinary enquiries – some words to the wise

What happens when an employee (or a student) ‘pleads guilty’ when faced with misconduct allegations at an internal disciplinary enquiry?

A lot will depend on the contents of the applicable Disciplinary Code and Procedure, but in the absence of specific prescriptions (or when developing such a Code) there are a few things that employers or educational institutions should keep in mind.

Procedural aspects

An internal disciplinary enquiry should not be approached like a court case. Whilst some structure and procedural steps are good to have, flexibility and adaptability are important aspects in enquiries of this nature. In the employment environment, there are in fact many voices going up for doing away with formalised internal disciplinary processes entirely, in favour of just taking a decision after a basic investigation – however, I do believe that formal disciplinary enquiries still do have a place, especially where there are serious disputes of fact. It is also an undeniable reality that managers would generally prefer to test the substance of a disciplinary case internally first, rather than finding out about potential flaws at an external forum.

So, formal disciplinary enquiries will happen, and how the chairperson proceeds upon receiving a response of ‘guilty’ to the allegations of misconduct, should be determined with reference to the specific organisational environment, and not just be seen as a procedural step.

Substantive fairness

It is important to acknowledge that the decision maker / chairperson of an internal disciplinary enquiry has a duty to ascertain, on a balance of probabilities, whether the employee / student has indeed committed the alleged misconduct. This is difficult to do after a superficial investigation only; or upon a mere admission of guilt by the perpetrator.

In the workplace, the substantive fairness requirements in Schedule 8 to the Labour Relations Act relating to misconduct, requires the employer to be able to demonstrate the following:

· the existence of a valid and legitimate rule / standard relevant to the workplace;

· which was wrongfully breached by the employee (without a justifiable explanation);

· whilst having been aware (or could reasonable have been expected to be aware) of this rule / standard; and

· that this rule/standard has been consistently applied.

Only when these points above can be ticked off satisfactorily, does the issue of a suitable and appropriate sanction / penalty arise. The chairperson of the disciplinary enquiry must then also be able to justify and motivate on what basis the particular penalty decision is appropriate – which would require a proper consideration of the facts and circumstances surrounding the misconduct. This should include a balancing of various factors, such as the severity of the misconduct, the impact of the misconduct on the organisation, as well as the circumstances of the employee – e.g. previous infractions, remorse / lack of acknowledgement, etc.

How is fairness assured when the alleged perpetrator admits guilt at the start of the enquiry?

The argument might be made that the chairperson could simply ask a few questions to the accused employee / student to verify what exactly they admit to, and if this satisfies the substantive fairness criteria, find them guilty of committing the misconduct. Then the chairperson can ask for mitigating and aggravating factors from the parties to assist with the penalty decision.

There is nothing wrong with this approach in principle, and in straightforward cases (such as procedures not having been followed, or absenteeism), this may well be sufficient if you have a skilled chairperson asking the right questions. However – sometimes more is required, not so much for the sake of procedure, but with a view to relationship management.

The problem is that people (including children) will often use an admission of guilt as a strategic tool. They plead guilty to misconduct as described in the disciplinary notification – the wording of which may often be vague, generic or unspecified – and try to play down the severity of the infraction by doing so. For example, “fighting on the premises” can mean anything from an altercation involving a few pushes, to a serious fight involving weapons and causing injuries. Equally, complaints relating to ‘harassment’, ‘bullying’ or ‘insubordination’ are open to this kind of tactic in an attempt by the perpetrator to get a lesser penalty.

I have found that there is a lot of value in proceeding with the disciplinary enquiry in the normal way, and present evidence, even when the accused employee/student admits guilt.

• Firstly, all of the relevant circumstances surrounding the infraction can then properly be considered for an appropriate penalty and that the chairperson has the full picture – which is not necessarily the case when simply perusing submissions on aggravation or mitigation. If the perpetrator truly admits to everything, the enquiry would be short and uncomplicated with no rebuttal evidence to contest the evidence presented by the initiator. If there are areas of contention, such as the severity / impact of the infraction, then this can be addressed directly by way of witnesses and questioning during the evidence.
• The second reason is related to the broader organisational environment and the relevant relationships which may have been damaged by the misconduct. Especially when there is a victim (or victims) at the receiving end of the misconduct. Complainants (or in the case of children, their parents) generally want to be heard. They want an opportunity to tell their side of the story and explain their experience to someone who has the power to do something about it – even face the perpetrator across the table. If management simply investigates the complaint and then ‘take the appropriate disciplinary steps’ without further involving the complainant in the disciplinary process (as a witness), the chances of getting blow-back in respect of the organisation’s employment- and/or public relations, are much greater.

An aggrieved complainant may well feel short-changed by simply being informed by management that the perpetrator had pleaded guilty and had received a penalty which, in their mind, amounts to slap on the wrist. This could lead to all sorts of allegations starting to surface, such as management bias, racism, etc. to explain the perceived unfair outcome of the matter. The media might get involved, the union might organise protests, employees/students/parents might rally…..

Of course these things could happen even if the organisation had followed a perfectly sound and fair disciplinary process, and had heard and considered all of the evidence, but the outcome is unpopular. However, the probabilities of such a fall-out when the complainant’s testimony and all of the evidence had been properly heard, and the severity of the infraction was not watered down by a tactical guilty plea, are much less. Also, management will have much more confidence in defending their ultimate decision (to stakeholders, to a court, to the media), if this was based on a thorough investigation and disciplinary process.

Conclusion

The management of internal disciplinary processes require much more than a procedural list of steps to follow, or a checklist of sorts. It is part and parcel of the organisation’s relationship management – whether it concerns employees, students, or other stakeholders. Whilst the disciplinary process itself must determine each case on its own merits - which decisions might still be subject to legal scrutiny later on - the procedural approaches in reaching those decisions involve forethought and a good dose of strategic consideration.

? Judith Griessel