14 Jun

14 June 2024

At some point, employees may find themselves in a disciplinary hearing. This is a result of alleged misconduct charges laid against them by their employer. Preparation is key when it comes to a disciplinary hearing. If you do not understand the protocols or legalities of a hearing, you can consult your union representative if you belong to a union or seek legal advice before attending a hearing.

Remember, you play a crucial role in the disciplinary hearing process. The notice to attend a disciplinary hearing should clearly phrase the allegation(s) levelled at you and will notify you of your entitlement to the assistance of a union representative or a fellow employee. Once you have obtained someone to represent you, you are able to start preparing for your case.  Knowing and observing your labour rights not only helps you protect yourself but also empowers you to face the reality of a disciplinary hearing.

Section 188 of the Labour Relations Act (LRA) states that a dismissal is unfair if the employer fails to prove that a fair procedure was observed. Important elements of this include:

  • The employee’s right to be heard emanates directly from the Constitution of South Africa and is an employee’s primary right.
  • The employee must be given a proper opportunity to prepare and present his/her case.

Many employers lose cases because they interpret the provision that the disciplinary process does ‘not need to be a formal one’ too leniently. In practice, it’s nearly impossible to meet the other provisions of the law of dismissal without conducting the disciplinary hearing formally. This clarification helps employees understand the seriousness and preparation required for a disciplinary hearing.

The employer must prove that the employee’s procedural rights have been complied with to avoid an unfair dismissal decision. According to the LRA, the employer would need to go about proving that the following rights have been complied with:

  • The right to be informed as to what the charges are with clarity of date time and place alleged wrongdoings– proof would be a written charge sheet, a receipt of which has been signed by the accused employee.
  • The right to a proper opportunity to prepare—proof would be a written notice of hearing given to the employee before the hearing, the receipt for which has been signed by the accused employee before the hearing date: normally 28 hours prior to the hearing is sufficient time to prepare.
  • The employee’s right to be heard and to present a defence—proof would be the minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, call witnesses, and cross-examine evidence brought against the worker.
  • The right to be fairly judged – proof would be reflected in the minutes of the hearing showing that the chairperson was even-handed and treated the accused without bias.

Written documents, including signed notices and minutes of proceedings, are adequate proof to be submitted. Consequently, once records such as minutes, hearing notices, and charge sheets are introduced, the disciplinary process becomes a formal proceeding. This conversion is reinforced by the need to separate the complainant role from the presiding officer role to eliminate bias.

The employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly-controlled hearing essential. The officials who carry out the corrective procedure, including managers and HR professionals, need to be highly-skilled in legal procedures to ensure that every legal right of the employee is strictly adhered to. Therefore, managers must be thoroughly trained in the disciplinary process, or the employer must bring a reputable labour law expert to chair the hearings. This expert control ensures your rights are protected and the process is fair.

UASA celebrates 130 years of excellent service and commitment to serving its members across various sectors with passion and integrity. Join UASA today and get labour-related support and legal assistance you need!

Ref: www.labourguide.co.za                                                       www.uasa.org.za


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