When an employee doesn’t comply with company procedures the unfortunate but necessary procedure would be to have warnings and then eventually a disciplinary hearing. The Labor Relations Act states the right to fair treatment, including the right not to be dismissed without proper procedure and fair reasoning. The severity depends on the infraction and company policy. All company policies must be in correlation with the Labor Law of South Africa. Here are some important things to keep in mind.
What to do before the hearing?
- The employer should inform the employee in writing of the details of the allegations which includes the date, time and place of the meeting;
- Both parties should have access to the information from the disciplinary investigation and the evidence, including any witness statements;
- The employee has the right to call witnesses to ask questions to support his/her case or to challenge what has been stated. A reasonable written request should be made to the employer before the hearing as well as any requests for relevant evidence;
- The employee has the right to request a postponement of the hearing in order to have enough time for preparations;
The requirements for the hearing to be fair
- The employee must be notified of the allegations against him using a form and language that the employee can understand. The notice must be given at least 48 hours ahead of the hearing;
- Hold the hearing before any disciplinary action has been taken to ensure the employee has enough time to challenge the evidence before a final decision is made;
- The hearing should be as soon as possible after the incident. No later than 2 or 3 weeks;
- The employee must be advised, in writing, of the precise questions that he/she is required to answer for in advance of the hearing as to award enough time for preparation. The allegations must be prepared in precise, simple terms and in a way that can be clearly understood of what is happening;
- The employee should be present at the hearing. However, the hearing can proceed if the employee refuses to attend or participate without good cause or has absconded;
- The employee should be entitled to the assistance of a trade union representative or a fellow employee to represent him in the disciplinary proceedings.
The Employee’s rights
The employee has the following rights which must be upheld, if it is not the employee can refer the case to the CCMA or another appropriate Bargaining Council that can rule against the company. Here are their rights:
- The right to be informed of the charges: All charges must be clear and precise, or the charges they are required to answer about. This charge is part of the need for satisfactory preparation. Where information should be provided to make the charge comprehensible, it should also be provided;
- The charges cannot be split or duplicated: Where a single incident has different factual components that comprise different offenses and have distinguishable consequences, then it does not count as split (or duplicate) charges;
- The employee has the right to a proper opportunity to prepare: What is reasonable depends on the circumstances and complexity of the issues. Short notice will render the dismissal unfair if an employee is materially prejudiced as a result. The employee may ask for a postponement if more time is required to prepare a response;
- The employee has a right to be heard and present a defense: The purpose of the hearing is to ensure that the accused employee has an opportunity to lead evidence in rebuttal of the charge, and to challenge the assertion of their accusers before an opposing decision is taken;
- The employee has the right to be judged fairly: The presiding officer must weigh the evidence for and against the employee and to make an informed and considered decision. The presiding officer must have and keep an open mind during the proceedings;
- The employee may not be charged with the same charges and evidence from the same incident after the hearing has concluded;
- Changing the findings of the chairperson on appeal: The employer may change the findings of the chairperson and impose a lighter sanction;
- The employee may be charged twice for the same incident with the same evidence with no prominent difference in the charges if there was an appeal to rectify not following proper procedure.
How does the hearing work?
The hearing is conducted by an open-minded chairperson. The employer will present his case with evidence and call any witnesses, if required. There after the employee will respond to the allegations with and question witnesses by counter arguing and presenting his/her own witnesses. Based on the evidence presented by both parties, the chairperson must make a fair, informed and impartial decision regarding the appropriate sanction and enforce it against the employee. If the chairperson is not convinced by the evidence the employee should be given the opportunity to make further representations if necessary.
Types of Disciplinary action after the hearing:
The meeting will be adjourned before a decision is made. The length will depend on the allegations and the evidence that was presented. The employer may choose to take no actions or impose a disciplinary sanction. The sanction will depend on what is stipulated in your contract and the allegations against you, which can be any of the following:
- Verbal warning;
- Written warning;
- Final written warning;
- Disciplinary transfer;
- Dismissal with notice; or
- Dismissal without notice.
The employee must be informed in writing once the decision has been made.
Appealing the decision:
The employee has the right to appeal the result of the disciplinary hearing, the employer must inform the employee of his/her options, it must usually be done within 3 days. As with a disciplinary hearing the employer should write to you with the decision on the appeal as soon as possible.
If the employee is not satisfied with the outcome, they can refer an unfair dismissal dispute to the CCMA or appropriate Bargaining Council whose decision will override that of the chairperson.