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Disciplinary Hearing Procedures Explained

Employees may be required to attend disciplinary hearings for alleged misconduct. The employer must give proper notice and details of the charges. At the hearing, the employer presents evidence and the employee responds and can call witnesses. The chairperson must consider if a rule was broken and the appropriate sanction.

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107 views1 page

Disciplinary Hearing Procedures Explained

Employees may be required to attend disciplinary hearings for alleged misconduct. The employer must give proper notice and details of the charges. At the hearing, the employer presents evidence and the employee responds and can call witnesses. The chairperson must consider if a rule was broken and the appropriate sanction.

Uploaded by

hahnlawpta
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© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd

DISCIPLINARY HEARINGS

Employees may find themselves required to appear in a disciplinary hearing for alleged misconduct. An employee may be suspended on full
pay pending a hearing especially when the employee’s presence at the workplace may jeopardize any investigation.

The employer initiates a disciplinary hearing with the preparing of a Notice to Attend Disciplinary Hearing, which is than delivered to the
employee. It is critical that the charges are correctly formulated in such Notice as the employee can only be expected to prepare and answer
the charges set out therein. The employer should give the employee not less than three (3) days notice of the enquiry and the Notice should
contain, inter alia, the time, date and venue of the hearing, details of the charges and that the employee is entitled to:

 Be represented by a Union Official (if applicable) or a co-worker of his/her choice;


 An interpreter;
 Call witnesses to give relevant evidence;
 Give evidence;
 Cross-question any witnesses called by the employer.

Conducting a Disciplinary Hearing:

Most disciplinary hearings are conducted in a formal yet fair manner and strict court rules are not applied. The employer should lead
evidence at the hearing. Evidence is submitted to prove or disprove the events surrounding the misconduct. The employee is than given the
opportunity to respond. The chairperson may ask the parties or any witnesses questions for clarification.

The chairperson must ask both parties to make submissions on the appropriate disciplinary sanctions should the employee be found guilty.

Any person who is required to determine whether a dismissal for misconduct is fair should consider:

 whether the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
 if a rule or standard was contravened, whether or not,
o the rule was a valid or reasonable rule or standard,
o the employee was aware, or could reasonably have been expected to be aware, of the rule or standard;
o the rule or standard has been consistently applied by the employer;
o dismissal was an appropriate sanction for the contravention of the rule or standard.

Valildity of a Work Rule/ Legality of Sanction:

The validity of a work rule and legality of sanction for infringement thereof should be considered against the following:

 Did the employee have the authority to make the rule in terms of the employment contract?
 Does the rule comply with the applicable statutes or regulations?
 Is the rule reasonably required for the efficient, orderly and safe conduct of the employer’s business?
 Has the rule been consistently applied in similar cases in the past?

(Please Note: Labour legislation is not specific in terms of the steps to follow when conducting a disciplinary enquiry. The above should
therefore serve as a guideline in such matters.)

Information provided herein is based on documentation available from the CCMA.

Common questions

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Consistency in applying workplace rules ensures fairness and reduces claims of bias or discrimination. If similar cases were judged inconsistently, it might undermine the legitimacy of the rule or sanction in question, possibly leading to successful appeals by the employee .

The chairperson plays a pivotal role by asking clarifying questions and ensuring both parties have equal opportunities to present evidence. Their discretion in questions and request for submissions on sanctions ensures all relevant information is considered, which contributes to a fair and just outcome .

Employee awareness is crucial, as disciplinary actions are more defensible if the employee was aware or could reasonably have been expected to be aware of the rules. Lack of such awareness could render disciplinary actions unfair and void .

Providing representation allows the employee to present a robust defense, access expert advice, and ensure that procedural rights are observed, enhancing the hearing's fairness and legitimacy .

The criteria include determining if a contravened rule was valid and reasonable, if consistent enforcement was practiced, and considering if the employee was aware of the rule. The severity of the transgression and context also play roles .

An employee may be suspended on full pay if their presence could jeopardize the investigation process. This measure ensures the integrity of the investigation by limiting interference or influence over evidence or witnesses .

Incorrectly formulated charges can lead to procedural unfairness, as the employee can only prepare defenses based on the charges presented. This inadequacy may lead to invalidation of the disciplinary process or wrongful dismissal claims .

A workplace rule is valid if it complies with employment contracts and legal statutes, is necessary for safe and efficient operations, and has been historically applied consistently in similar cases .

The employer should prepare a Notice to Attend Disciplinary Hearing detailing the charges and give the employee at least three days notice. The employee must be informed of their right to representation, an interpreter, to call and cross-question witnesses, and to give evidence. Evidence should be presented without strict court rules, and the chairperson can ask questions for clarification. Submissions on appropriate sanctions are made if the employee is found guilty .

Witness testimony can substantiate or challenge evidence presented and provide additional context, heavily influencing the chairperson’s decision. Cross-examining witnesses can further test reliability, thus impacting the hearing's outcome .

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