According to the Labour Relations Act (the LRA) the basic steps required to conduct a fair disciplinary hearing includes:
- The Investigation
The Code of Good Practice: Dismissals, issued in terms of the Labour Relations Act requires that the employer should conduct an investigation into any suspicion or allegation. The format of the investigation is not prescribed and therefore it is accepted that even asking around or requesting certain source documents will suffice. It is not required to draft an affidavit for each witness, to have documents submitted as evidence certified or any similar practices which we normally find in courts of law. The objective of this investigation is simply to verify that there is a basic case for the employee to answer to.
- The Notice
If the investigation finds sufficient evidence that a form of misconduct mayhave been committed, the employer should issue the employee with a Noticeof Disciplinary hearing, which contains the following:
- The date, time and location of the hearing.
- The charges that will be put to the employee.
- The rights of the employee e.g. the right to call witnesses, the right to be assisted by a colleague, the right to appeal, etc.
- The notice should also highlight the possible sanctions that may be imposed should they be found guilty.
The notice can either be handed to the employee in hard copy or emailed. In some situations the employer may need to serve the notice by Whatsapp. Whichever method is used, the employee should be requested to acknowledge receipt in some manner. At least fourty-eight (48) hours notice should be given before the hearing to allow the employee to prepare his/her defence.
Although there is no clear obligation to do so, employers are best advised to provide copies of the available evidence that will be presented at the hearing to the employee beforehand. This will limit the risk of the employee requesting an adjournment based on the fact that he/she did not know that they had to respond to these documents beforehand.
- The Hearing
The hearing should be chaired by a member of management or an independent legal or HR practitioner.
Like in all disputes, there are always two sides to the story and one cannot get to the truth of the matter without hearing the other side or then audi alteram partem. Disciplinary hearings are not intended to be court cases with formal procedures, but fairness is key.
- Sanction
At the conclusion of the hearing, the chairperson will make a finding of guilty or not guilty. If the employee is found guilty, the chairperson may pronounce any of the following sanctions, but this is dependant on the Disciplinary Code of the employer:
- Counselling
- A written warning
- A final written warning
- Suspension without pay, for no longer than three months.
- Demotion
- A combination of the above, or
- Dismissal.
The sanction of suspension without pay and demotion may only be applied as an alternative to dismissal. This means that it requires the agreement of the employee and if not agreed to, dismissal will follow.
The sanction must be conveyed to the employee, and if the penalty is dismissal, it must be provided in writing.
Although disciplinary processes should not be over complicated, employers are best advised to consult a reputable labour law advisor before embarking on such processes to prevent falling foul of some of the intricate requirements.