DISCIPLINARY HEARINGS: FIVE COMMON MISTAKES EMPLOYERS MAKE by Alwyn Annandale

Labour disputes are very disruptive in the workplace in terms of workload and general harmony among employees and/or between employees and management. When the workplace’s rules are violated, the employer has the right to enforce discipline and, in cases of serious misconduct, to hold a disciplinary hearing.

The following are five common mistakes made by employers when holding a disciplinary hearing:

1. EMPLOYERS DO NOT INVESTIGATE THE ALLEGED MISCONDUCT THOROUGHLY BEFORE HOLDING THE DISCIPLINARY HEARING

Preparation is key. Employers must ensure that allegations are not malicious and that there is sufficient evidence to substantiate each allegation. Surrounding circumstances should also be investigated. Allegations must be formulated correctly, according to the facts, and the employer should decide which evidence and/or witnesses to use during the disciplinary hearing and organise the evidence chronologically. Closing arguments summarising the evidence must be prepared, as well as arguments as to why the employee is guilty of the allegations.

2. THE SERIOUSNESS OF THE MISCONDUCT DOES NOT JUSTIFY HOLDING A DISCIPLINARY HEARING

The seriousness of misconduct is influenced by the employee’s type of work and responsibility, the (possible) consequences of the misconduct, as well as the impact thereof on the employer-employee trust relationship. When the misconduct is of a serious nature and the possibility of dismissal exists as a sanction, the employer must hold a disciplinary hearing.

3. THE EMPLOYER ACTS AS BOTH PROSECUTOR AND CHAIRPERSON

The chairperson must be an impartial third party and make a decision based on the facts and evidence presented during the disciplinary hearing. However, when the employer acts as both prosecutor and chairperson, the chairperson can be considered to be biased and the process declared unfair by the commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA). It is advisable to appoint an outside expert to act as chairperson.

4. INSUFFICIENT OR INADMISSIBLE EVIDENCE AND PROOF

Evidence during a disciplinary hearing could include the following: documentation, photographs, footage, personal testimony, etc. Employers must remember that hearsay evidence has no value and a witness can only testify about his or her own experiences and personal knowledge.

5. THE DISCIPLINARY HEARING IS PROCEDURALLY UNFAIR

Labour law stipulates a strict procedure to follow when holding a disciplinary hearing and the employer must be able to prove that this procedure was followed and that there was sufficient proof to dismiss the employee.

The vast majority of cases referred to the CCMA are due to ‘unfair dismissal’, with the majority being related to the misconduct that led to dismissal. In general, arbitration awards in favour of the employee are directly linked to the employer’s failure to follow the correct procedure. The CCMA can issue awards against the employer equivalent to up to 12 months of an employee’s salary.