Disciplinary Hearings

Misconduct in the workplace can necessitate a disciplinary hearing. This hearing can in short be described as a meeting between two or more people, usually the employer and employee.

The purpose of a disciplinary hearing is to establish whether there is sufficient and substantive evidence for dismissal of an employee. As a dismissal will have serious and far-reaching consequences for the employee, it is important to ensure that due process is followed.

The utmost care must be taken to ensure that the hearing is conducted in a fair manner. A hearing may be deemed unfair in the following circumstances:

When the employee has not been properly informed of the charges – The employee must understand the charges in order to answer thereto.
When the employee has not been granted adequate time to prepare his case.
When the employee is not given the opportunity to present his case.
When the employee is not being fairly judged – the chairperson should be impartial and must make a decision based on evidence presented.
Use of improper tactics – such as falsifying documents, influencing witnesses, etc.

The disciplinary hearing process is initiated by a notice to attend a disciplinary hearing. The employee may be required to sign a receipt. It is advisable to have a witness present when delivering the notice. In the event that the employee refuses to sign the receipt, the witness will be able to confirm that the notice has been delivered.

The notice must include a detailed description of the charges levelled against the employee with a summary of the evidence. The notice must include the date, place and time of the hearing and must notify the employee of his rights, such as the right to be represented by another employee or trade union, and the right to call his own witnesses.

The hearing will be chaired by the chairperson, who is appointed by the employer. It is the function of the chairperson to keep the hearing in good order, to consider all evidence and then finally to make a ruling.
The hearing may start with both sides presenting their opening statements. It is not compulsory to give an opening statement, but it may help the chairperson to identity relevant evidence as the hearing progresses. An opening statement will include a brief summary of the case, reference to issues in dispute and those that are not, what the chairperson must decide, how the case will be presented through evidence and mention of the preferred result.

Following the opening statements, the chairperson will ask the employee whether he understands the charges against him and will ask the employee to plead guilty or not guilty. Should the employee plead guilty, it is still advisable to continue with the hearing and to hear evidence from both sides to ensure that the employee has not been unduly influenced or coerced.

The chairperson will also enquire from the employee whether he has received notice to attend the hearing and whether he was given adequate time to prepare. The employer must give the employee at least two days notice to attend. A reasonable notice period will be determined with due reference to the complexity of the matter and the nature of the charge.

The employer will then present the employee’s misconduct by stating facts and merits, whereafter the employee may answer by leading evidence, calling witnesses and cross-examination. The chairperson may also direct questions to any witness if clarity on certain statements are needed.

The employee may present mitigating evidence and the employer may present aggravating evidence. The chairperson will then make a ruling, usings findings and facts gathered from evidence to explain to the employee how he reached his decision.

If the employee is not satisfied with the ruling made, he may appeal, giving reasons on which the appeal is based. The appeal will then be heard by a different chairperson.

During the hearing, no party is allowed legal representation, however, the employee may have legal representation present only if the employer agrees.

Should the employee fail to be present for the hearing, the chairperson may determine that the hearing will proceed in his absence if no acceptable excuse is tendered.

Proper minutes must be taken of the hearing. The audio of the hearing may also be recorded.