A disciplinary hearing is a meeting in the workplace between an employer and an employee where an allegation of misconduct or negligence of an employee is considered. It is not intended to be a formal process like in a Court of law, but the law does prescribe certain basic requirements. According to the principle of natural justice the employee must be given a fair opportunity to state his/her defence.
The purpose of the disciplinary hearing is to:
- Give the employee the opportunity to provide his/her version of the alleged offence.
- Obtain all relevant evidence concerning the alleged offence.
- Reach a just and balanced decision on the employee’s guilt or innocence.
- Consider the employee’s disciplinary history.
- Modify unacceptable behaviour or poor performance in a progressive manner; and
- Evaluate whether any management or employees’ actions could prevent a recurrence of the inappropriate behaviour or poor performance in future.
In order to successfully prove the case, the employer must show that:
- There is a rule in place against this conduct.
- The rule is valid and fair.
- It is applied consistently.
- The employee was aware of the rule.
- The employee contravened the rule.
There is a duty onemployers to ensure that their employees are made aware of the rulesin the workplace and this is why workplace policies are so important.
Where do workplace rules come from?
- The Constitution which contains the Bill of Rights such as equality and human dignity of all individuals.
- Acts that are issued by Parliament, e.g. Labour Relations Act, Basic Conditions of Employment Act, etc.
- The employment contract which includes terms and conditions of employment such as hours of work, duties, etc.
- HR policies that companies have to deal with all aspects of conduct in the workplace.
- Employers’ Disciplinary Code and Procedures.
- Common law, which are the “unwritten” rules of law that has been accepted into South African law from the Roman-Dutch and English legal systems.
Guidance to a fair disciplinary process is found in Schedule 8 of the Labour Relations Act 66 of 1995, which is the Code of Good Practice: Dismissal. The code refers to both substantive and procedural fairness aspects.
It is advisable to consult a reputable labour law practitioner to ensure that your Disciplinary Code is up to date with the latest developments.