A fair disciplinary hearing procedure generally includes a number of rights that the employee is entitled to – including the right to be given notice of the charges in sufficient detail to enable him to prepare a defence, affording the employee sufficient time in which to prepare a defence, informing him of his right to representation and his right to call witnesses to testify on this behalf, and his right to cross-examine witnesses called by management.
At the outset, let it be stated that: the full proceedings must be recorded in writing in the minutes. 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.
- 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.
The minimum requirements for a fair Disciplinary Hearing Procedure
Employers often find themselves having to fork out money in compensation at the CCMA because of procedural unfairness. This is usually due to failure on the part of the employer for not following fair disciplinary hearing procedures.
The following should be present:
- The Chairman
- the complainant.
- the respondent (accused)
- Respondent’s representative.
- interpreter if required.
NOTE: See also Part 7 “The Role of the Chairman and other Participants.’
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 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.
Each party (the complainant and the respondent) will deliver its opening statement, which is a brief outline of the case which each party will seek to make out. In other words, an outline of the case to be brought.
It is not a prerequisite that opening statements be delivered. The hearing can proceed without opening statements. However, the advantage of giving an opening statement is that it tells the Chairman how the presentation of evidence is structured, and enables him to form an overview of the case. Against this background, the Chairman will have a better understanding of the case which will enable him to better understand the detailed evidence as it is presented. Without an opening statement, the Chairman may not always appreciate the significance of certain evidence or the impact of it may be lost.
An opening statement should include :
- A brief summary of the case
- Reference to any facts that are not in dispute
- The issues that are in dispute
- What has to be decided by the Chairman
- How you intend to demonstrate your case through your evidence
- What result you are seeking
The Chairman must then state the purpose of the hearing:
“We are here today to investigate the circumstances of (explain the charges) against Mr. (Accused Name)”
The Chairman must ask the respondent: “Do you understand the charges against you?”
Record the respondent’s answer.
Refer also to Part 3 “The Elements of the Charge” and Part 4 “ The Formulation of Charges.”
The Chairman must then ask: “How do you plead to these charges? Guilty or not guilty?”
Record the respondent’s answer.
if there is more than one charge, ask the respondent to plead on each charge separately and record the plea on each charge. Normally the respondent will plead “not guilty” on all charges.However, in the unlikely event that the respondent does plead “guilty”, it is advisable to continue with the hearing and hear all the evidence from both sides. The reason is that the possibility exists that the respondent may have pleaded guilty out of fear (under threat of retribution by other persons involved, or to shield other persons involved) or he/she may think that a guilty plea will “get them off the hook” or lessen the likelihood of dismissal.
The Chairman then asks the respondent (accused): “Were you notified in writing of the date, time and place of this hearing?”
Record the respondent’s answer.
The Chairman must request to be given a copy of the notice if he does not already have it.
The Chairman asks the respondent: “Were you given sufficient time in which to prepare your defense?”
Record the respondent’s answer
Almost always, the respondent will answer “ no “ to this question. This is done to try and mess the employer around, or to be just plain “bloody minded.” Normally as long as the respondent was given a minimum of 2 clear full working days, the Chairman must rule that the time allowed was sufficient and the hearing will proceed.
Should the respondent insist and demand more time, and in the opinion of the Chairman sufficient time has already been granted, then the Chairman must refuse to accede to the demands, and record that the demand is unreasonable in the light of the time already allowed.
Should the Chairman conclude that the demand is reasonable, then he must make a ruling on the extent of additional time to be allowed, and act accordingly. The Chairman should record that the granting of additional time demonstrates the applicant’s willingness to co-operate in this matter to the fullest possible extent.
Should the respondent answer “no” then the Chairman must decide whether or not the employer did allow sufficient time between the handing of the Notice of Disciplinary Hearing to the respondent and the date of the hearing, for the respondent to prepare his defense.
Generally, two full clear working days will be considered to be fair, depending on the seriousness of the matter. Certainly a maximum of 4 clear working days is quite sufficient for any disciplinary matter except in the most exceptional of circumstances.
However, the employer must decide – for example, it may be a case of fraud where the respondent has, over a period perhaps of 3 years, been embezzling money and a lengthy investigation may be required by management to prepares it’s (managements) case.
In that event, it may be necessary to suspend the respondent (with full benefits) for a few weeks or even a month to allow management to gather all the evidence required.
The Chairman now asks the complainant to present their case.
The complainant then proceeds with what is known as presenting “evidence in chief.”
NOTE: Refer to Part 5 : Evidence in Disciplinary Hearings.”
Evidence in chief.
The complainant’s witness will be called to the hearing. The complainant should firstly ask the witness to state his name and occupation, and his position in the company. Should the witness have made a previous written statement, the complainant must produce this statement and ask the witness “Is this your statement?” The witness must inspect the statement and reply “yes”. The complainant must then ask him (showing him the statement again ) “Is this your signature at the bottom of the statement?”. The witness will reply “yes.”
The complainant must then ask the witness to state in his own words what happened or what he observed. While the witness relates what he knows, the complainant can follow the version now given and compare it with the written statement.
After the witness has finished giving his version of events, the complainant can question him to clarify any points that are not clear, but be careful to avoid questions which may be damaging to your case.
Do not highlight any defects in the witnesses evidence by asking questions about those defects unless a clarifying question will strengthen your case. Just gloss over them and concentrate on asking questions to clarify the strong points in his evidence, but avoid questions on points that have already been established or on points that are not in dispute.
Should the witness now come up with a completely different story that changes things completely, or delivers damaging evidence that he never disclosed in his written statement, you may further cross examine him to establish whether or not he is now telling the truth (which he never told before) or whether he is now lying perhaps under threat of retribution by the accused.
You have his previous statement, and he must now tell you why the story he now delivers is materially different from his written statement and why his written statement is inconsistent with the evidence he now presents.
Should he be unable to give a credible explanation, you can tell the Chairman that the witness is to be regarded as hostile to your case and that his evidence is to be disregarded. The above procedure (evidence in chief) will be followed with all your witnesses. Your aim is to attack the credibility who does not agree with what your witness is saying on key issues. By questioning the witness, you may obtain additional information that is beneficial to your case. Don’t argue with a witness.
Never answer a question put to you by a witness. Just remind him that you are asking the questions and he is providing the answers. If the respondent’s witness delivers a different version to your witness, put your witnesses version to the other witness and ask him to comment on the discrepancy. You could even state to him “I put it to you that your version is complete fabrication and that the truth is contained in the evidence of Mr. Rob Joint.”
Do not be afraid to challenge evidence if you are on solid ground. Do not enter argument unless you are sure of your facts. It is repeated – never argue with a witness. It is the function of the Chairman to weigh up the evidence and to decide whose story is more likely to be true.
After management have presented their case, the Chairman asks the respondent to reply:
The respondent can question the complainant on any points raised in the complainant’s evidence etc and the Chairman can interrupt the complainant at any time to ask a clarifying question and the respondent can also ask clarifying questions of management. The complainant can call witnesses in support of his evidence and the respondent can question these witnesses.
The Chairman should take notes for his own purpose and the Secretary must record the minutes including what the respondent is relating.
The Chairman can if necessary interrupt to ask any clarifying questions, such as “at what time was that?” etc
when finished, the respondent is asked by the Chairman – “Do you wish to call any witness to testify on your behalf?”
If affirmative, allow the respondent’s witnesses to be called in one at a time.
the witness gives his evidence.
the Chairman and/or complainant cross-question the witness.
The Chairman asks the witness “Have you anything further to add?”
if “no” then the witness is excused.
if “yes”, he is allowed to give his further evidence, on which he may be cross-questioned by the Chairman or the complainant.
the witness is then again asked ”Have you anything further to add?”
on answering “no” the witness is excused and the next witness is called in
The same procedure is then carried out with each witness.
After the last witness is called and the last evidence has been heard, the Chairman asks the respondent
“Have you anything else you wish to add or bring to my attention? I am asking you this because we will now adjourn the hearing to allow for the minutes to be typed. I will then study the minutes and all the evidence presented, and based on that I will decide whether you are guilty or not guilty. If you are found not guilty, you will be notified of that in writing and the matter will be closed. If you are found guilty, I will decide on what sanction is to be imposed on you and you will be notified of that in writing.
Give the respondent a moment to reply, and then the Chairman states “This hearing is now adjourned and will re-convene on (state date, time and place- usually the next day is sufficient, or perhaps the day after that. To re-convene anything up to 3 days later, depending on the seriousness of the offence and the amount of evidence to be considered is acceptable.)
It seems that when it comes to fair disciplinary hearing procedures, some employers don’t really pay attention to the little details, and in the process they overlook the basics.