A disciplinary code is vital in enforcing rules and procedures within the workplace. When these rules and procedures are not followed the company can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.
Why must a disciplinary hearing be held?
A disciplinary hearing must be held to ensure that a fair procedure is followed as well as to ensure that there is substantive reason for the employee to be dismissed. It is also of the utmost importance that an employee must be given the opportunity to present his case and to call witnesses.
The full proceedings must be recorded in writing. Needless to say, this is not negotiable. If the proceedings are not reduced to writing, your whole case ends up on the compost heap. The minutes must be as complete and as detailed as possible. Further:
The complainant and the respondent are entitled to a copy of the minutes
The minutes may be tape-recorded provided there is no objection from either party
The respondent (accused) is not entitled to legal representation at the Disciplinary Hearing unless the employer agrees to it. The respondent is entitled to representation only by a fellow worker from his/her place of work
In a typical hearing the following persons should be present:
The respondent (accused)
Interpreter if required.
The Chairman could save time by recording the following details in advance of the commencement of proceedings:
The date, time and venue of the hearing
The names of the participants
The role each is to play
Record receipt of a copy of the Notice of Disciplinary Hearing
Record that the charges are correctly framed and brought
The Chairman should introduce himself. The Chairman must explain his role in the proceedings:
“My name is ………………and I am the Chairman (if you like, Chairlady or Chairperson) of this Disciplinary Hearing. I have been appointed in writing by the complainant to act as Chairman in this matter and should any person wish to examine my written appointment, I have it available for such inspection.
My function is to keep the meeting in good order, to conduct the meeting in an orderly manner and to ensure that there is no anger or swearing or other insulting behavior or language. At the outset, I would like to make it clear that abuse and insults will not be tolerated and any such that does occur will result in the perpetrator being ordered out of the room.”
“I will listen to all the evidence, and at the end of the meeting we will adjourn to enable me to have the minutes typed and to study the evidence. Based on the evidence placed before me, I will make a finding as to whether the respondent is guilty or not guilty. The hearing will then be reconvened and I will give the respondent another opportunity to submit any mitigating or extenuating circumstances or evidence not already submitted.
I will consider any such evidence, and then deliver my verdict and the sanction to be applied. Should the verdict not be in favour of the respondent, then the respondent has the right to lodge written notice of appeal within 7 days of the final hearing, stating the reasons on which the appeal is based. The appeal hearing will be held under a different Chairman, and a verdict delivered after that hearing.
Should the respondent still not be satisfied, then he/she has the right to refer to matter to a disputeresolution center for further attention.”
Lastly, the Chairman states: “The record must show that I have no prior knowledge of this case and I have no knowledge of the outcome of any prior investigations that may have been conducted by the complainant in this matter..”
The Chairman must then introduce the participants to each other, stating the role of each in the proceedings.
The an interpreter may not also be a witness for the defense, nor for the prosecution. The Chairman must ask: is the interpreter also a witness for the accused or for the complainant? If the answer is yes to either one or both, then the interpreter must be excused and another interpreter appointed. The duty of the interpreter is just that – to interpret only. He/she is not permitted to take part in the discussion in any way other than to interpret.
The Chairman can then proceed with the Hearing.
For further information please visit the South African Labour Guide or click here