The key to any fair misconduct dismissal is a professional and properly run the disciplinary hearing. It is therefore essential that anyone tasked with chairing a disciplinary hearing ensures that the hearing is conducted in an equitable manner.
In this article, we have put together a guide to assist a chairperson of the Disciplinary Enquiry, to steer employers through the issues they need to consider when chairing a disciplinary hearing.
The guide to chairing a disciplinary hearing.
- Welcome, all who are present.
- Introduce yourself and any other participants unknown to each other.
- State the purpose of the enquiry :
- Ask the employee if he/she understands his/her rights as explained in the Notice of Disciplinary Enquiry. If the answer is in the negative, go through his/her rights with him/her.
- Ask if he/she has a representative present and record the name of the representative. If he/she has no rep, ask if he/she wants one.
- Get agreement that the enquiry will be conducted in English. (or Afrikaans or whatever)
- Inform the employee that the proceedings will be taped.
- Explain the procedure to be followed:
- All questions will take place under your direction.
- Disorderly conduct – shouting, arguing etc will not be allowed
- The employer will first give evidence in support of his charges and call witnesses
- A witness is not to be interrupted while giving evidence.
- When a witness has completed giving his evidence, the employee will have the opportunity to cross-examine that witness.
- After the employee has completed cross-examination, the management or the Chairperson may ask clarifying questions.
- After management has presented its evidence and called all its witnesses. The employee will then give his/her evidence in reply and call his/her witnesses.
- After the witness for the defence has given evidence, management will be given an opportunity to cross-examine that witness.
- The employee and the Chairperson will be allowed to ask clarifying questions of the witness.
- The employee will be allowed to testify himself/herself and lead evidence.
- Management and the Chairperson may cross-examine the employee and ask clarifying questions.
- Witnesses will be called singly and will be excused when their evidence and cross-examination has been completed.
- The Chairperson may also question witnesses
- Any adjournments will be at your discretion
Once the procedure has been explained, the next steps to be taken are:
- Ask if everybody understands the procedure?
- Read out the charges to the employee, and ask him/her if he/she understands the nature and the seriousness of the charges against him/her?
- Ask the employee to plead to the charges and record the plea.
- Ask the employee what position he/she holds in the company and a brief description of her duties.
- Management must then lead evidence, and call their first witness. After the witness has finished leading his/her evidence, ask any clarifying questions you may have.
- Ask the employee if he/she wishes to question management or the witness.
- Allow all relevant questions.
- Do not allow irrelevant or frivolous questions.
- When all management witnesses have testified or management has completed leading their evidence, allow the employee to proceed with his/her evidence and witnesses.
- When all evidence has been presented, adjourn the meeting. This adjournment must be for a reasonable period – say at least 2 days. The minutes must be typed, the Chairperson must consider all the evidence, weigh it up on the balance of probability, and then decide on guilt or innocence.
- When the meeting is reconvened, the Chairperson will deliver his verdict and explain his reasons for arriving at that verdict. He will explain what evidence led him to believe, on the balance of probability, that the employee was guilty.
- The Chairperson will then ask the employee if they have anything to add, any other evidence to lead, or any other circumstances, personal or otherwise, in mitigation of the sentence.
- The Chairperson will then call for the employee’s disciplinary record (personal file) and armed with that together with a knowledge of the employee’s personal circumstances, will proceed to decide on a sanction based on a fair reason.
- The meeting will be re-convened, and the Chairperson will deliver the sanction decided upon and give reasons for deciding on that sanction.
- Confirm in writing to the employee that the employee has the right to appeal within 5 days and state reasons on which the appeal is based.
- State that the employee has the right to refer the matter to the CCMA if he/she feels aggrieved in any way in terms of unfair treatment or procedure.
In considering the verdict of guilty or not guilty, the Chairperson will consider all the evidence led at the Disciplinary Hearing by both parties. Based on that evidence, he will decide, on the balance of probability, whose story is more likely to be true – that of the complainant or that of the employee. Based on the decision of whose story is more likely to be true, he will arrive at a verdict of guilty or not guilty.
A sanction will only be considered if the verdict is a guilty one. If the employee is found not guilty, then that verdict is communicated to the employee and the matter is closed.
In considering a sanction, the Chairperson will largely ignore the evidence – he will consider facts such as the length of service of the employee, the position held in the company, the seriousness of the offence, the personal circumstances of the employee, the degree of remorse if any, and any other mitigating or aggravating circumstances.
The Chairperson must also consider the employer’s own Disciplinary Code and Procedures, and also consistency in terms of previous sanctions imposed for similar offences. The letter advising the respondent of the sanction imposed should contain points 23 and 24 above in the same letter.
Chairing a disciplinary hearing is never an easy task. A fair procedure dictates that the person chairing a disciplinary hearing must be unbiased, impartial and have no prior knowledge of the case.
To ensure that employers do not lose cases due to chairman bias or alleged bias at disciplinary hearings, it is not unfair for employers to use third parties such as attorneys or labour law experts in chairing disciplinary hearings.
CONTACT CAPE LABOUR.
For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.
For more information or to Contact Cape Labour. You can find all of our relevant details here.