Estimated reading time: 3 minutes
As a rule, a disciplinary hearing should be held prior to dismissing an employee. Following the correct procedure is essential to ensure that any dismissal is procedurally and substantively fair.
Steps to follow before a hearing
- Investigate the matter: Conduct a thorough investigation before charging an employee. Do not delay this process until after charges are drafted or during the hearing itself. Witnesses should be consulted in advance to obtain their versions of events, without influencing their testimony. All relevant documentary and other evidence must be gathered prior to the hearing.
- Draft the notice of disciplinary hearing: Draft charges accurately. Incorrect charges could result in an employee being found ‘not guilty’. Include the date of the misconduct and sufficient detail to enable the employee to prepare an adequate defence.
- Serve the notice on the employee: Explain the notice to the employee in a language he/she understands. The employee must be informed of their rights during the hearing. This process should take place in the presence of a witness. The employee should sign to acknowledge receipt of the notice; if he/she refuses, the witness should sign to confirm that the correct procedure was followed.
Considerations during the hearing
The employee has the right to:
- Be represented by a co-employee or trade union representative (where applicable).
- Where reasonably possible, request an interpreter.
- Present their case and supporting evidence.
- State their version of events.
- Call witnesses.
- Question the employer’s witnesses.
The employer has the right to:
- Present its case and supporting evidence.
- Call witnesses.
- Question the employee’s witnesses.
The chairperson’s role: The chairperson must act as an impartial decision-maker and not as a representative of the employer. His/her role is to evaluate the evidence and ensure the hearing is conducted fairly. Employers are cautioned against appointing an internally employed chairperson, as this may result in procedural unfairness. Only evidence presented during the hearing may be considered by the chairperson when making a recommendation.
Consistency: Employers must apply disciplinary rules consistently. Employees who commit similar misconduct should be treated alike. Any deviation by the employer must be justified on sound and lawful grounds.
After the hearing
Once the chairperson has made a recommendation, the employer should consider and implement it. Deviating from the recommendation carries significant risk, particularly if the matter is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).
At the CCMA, the employer bears the burden of proving that a fair procedure was followed and that there was a fair reason for dismissal. Failure to meet these requirements may result in an award against the employer either for reinstatement (with or without back pay), re-employment, or compensation of up to 12 months’ remuneration in cases of ordinary unfair dismissal. – Anneline Scriven, senior legal advisor, LWO Employers Organisation