Audi alteram partem, literally, ‘hear the other side’, principle must be applied in the employment context. This means that employers cannot take disciplinary action against employees without affording them a fair hearing.

SUMMARY

After the charge is investigated, the employee is normally served with a notice of a hearing, setting out the charge the employee is required to answer, and informing the employee of the time and place of the hearing, and his or her right to be accompanied by a representative. At the hearing itself, the presiding officer should explain the nature of the proceedings and the procedure to be followed, and advise the employee of his or her right to call witnesses. The charge is then read to the employee, who is asked to plead. If the employee enters a plea of guilty, the presiding officer must ensure that the employee understands the implications of his plea. If a plea of guilty is accepted, evidence need not be led to prove the commission of the offence. However, the employee is still entitled to lead evidence that might serve to indicate that the offence was not as serious as it appeared, or to lead evidence in mitigation.

If the employee pleads not guilty, the employee or his/her representative should be asked briefly to outline the nature of that defense, and to indicate the evidence that will be lead in support of that defense. The employer is then given an opportunity to reply. These statements are commonly referred to as ‘opening statements’. After the opening statements are completed, the parties are given the opportunity to lead evidence. This may take the form of documentary or oral evidence. If documents are presented, the presiding officer should ensure that the opposing party agrees that the documents are what they purport to be. The other side must be given the opportunity to cross-examine each witness. When each party has closed its case (completed its evidence), the employee and the employer should be given the opportunity to address submissions (‘closing arguments’) to the presiding officer. These submissions are aimed at persuading the presiding officer to find the employee guilty or not guilty, as the case may be. Closing argument consists of factual and legal submissions.

When the presiding officer has considered the closing arguments of the employee and the employer, respectively, the verdict is pronounced. This is the finding whether the employee is guilty or not guilty of the misconduct charged. If the finding is not guilty, that is the end of the matter. If the finding is guilty, the parties must be invited to lead evidence or to make representations on the appropriate penalty. Once these submissions are made, the presiding officer will decide on the penalty. Decisions regarding the verdict and penalty can be made either in the presence of the accused employee, or later in writing. Either way, the employee should be furnished with brief reasons.

ADEQUATE NOTICE

Employees must also be given sufficient time to prepare for the hearing.

THE EMPLOYEE SHOULD BE PRESENT AT THE HEARING

A disciplinary hearing held in the absence of the accused employee is generally unfair. However, an employer is entitled to proceed in the absence of the employee if that employee unreasonably refuses to attend or participate in the hearing without good cause, or has absconded and cannot be traced.

REPRESENTATION

Employees accused of misconduct are entitled to be assisted. Normally, shop stewards act as representatives for employees who belong to unions. Employees who are not union members may be represented by colleagues. It has been held in many cases that legal practitioners are not entitled to appear in internal disciplinary proceedings without the consent of the employer.

THE PRESIDING OFFICER MUST BE IMPARTIAL

Presiding officers are to refrain from showing bias or even giving the impression of bias, until they have given their final decision. Presiding officers who feel they may be influenced by extraneous considerations, such as prior knowledge of the accused, should properly recuse themselves from the proceedings the moment the impression arises. However, presiding officers need not recuse themselves merely because an accused employee or representative alleges bias; some foundation must be laid for the claim.

For further information on the Employment Equity Act any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za