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Labour Law & Unions opinion –
How to hold a disciplinary hearing

By: Roane Swindon | 23 Apr 2015 10:38

It is every employer’s wish that everything runs smoothly in the company but sometimes this does not happen and an employee may have to be reprimanded. Even if an employee has engaged in a serious offence, such as assaulted a fellow employee, in the interest of fairness you can usually not dismiss them without holding a disciplinary hearing.

Your company may have a Disciplinary Code that requires a warning procedure, so ensure that this was followed before heading into the disciplinary hearing. Remember that the hearing is held to determine whether or not there are grounds for dismissal based on the employee’s reported misconduct and a certain procedure must be followed to maintain fairness in the eyes of the Constitution and Labour Act.

To hold a disciplinary hearing, you must do the following:

  1. Inform the employee of the hearing and allow them at least two working days to prepare their defence. Note that the employee is entitled to be assisted by a union representative or fellow employee.
  2. Prepare your case against the employee thoroughly. It is a good idea to have an independent person look through the evidence, too, to check that your case is foolproof.
  3. Choose a person to chair the hearing. This person must be unbiased towards both employee and employer to ensure the hearing is fair, while they should also be skilled at speaking and dealing with disagreements as per the Labour Law.The Chairman is responsible for guiding the basic procedure of the hearing, such as: introducing those present and recording attendance; confirming and recording that the accused was notified of the nature of the complaint and had sufficient opportunity to prepare their case; and ensure that the statement of misconduct is understood. This is why the Chairman chosen must be familiar with the Labour Law.
  4. Both employer and employee must be given the opportunity to state their case, support it via witnesses, and cross-examine the opposing side.
  5. The Chairman establish the employee’s guilt based on the evidence provided during an adjournment, after which he will inform the employee of the decision and the reasoning behind it.
  6. At this point, the employee will be able to raise aggravating or mitigating circumstances for the Chairman’s consideration. The Chairman will also look at the employee’s service record for warnings for misconduct similar to the one under discussion in order to take these into account.
  7. At this point, the Chairman will decide on the appropriate penalty for the misconduct, taking into consideration the gravity of the offence, the circumstances in which it occurred, similar previous offences, service records, aggravating and mitigating circumstances, and the way in which similar offences were dealt with in the company in the past.
  8. The employee must be informed of the penalty in writing.
  9. The employee may be able to appeal the decision depending on your company’s Disciplinary Code.
  10. Inform the employee whether or not they have the right to take the matter to the CCMA or bargaining council for further arbitration.
  11. Remember to record the hearing’s proceedings in writing. This is particularly important if the hearing results in the dismissal of the employee, as no record of the hearing could be considered as unfair dismissal.