Disciplinary Hearings and Enquiries

Understanding the LRA

• History of labour relations in South Africa
• Understanding social justice, natural justice and common law
• The relevance and importance of case law

The co-dependency relationship

• Mutual respect
• Why does the organisation exist?
• What is the holistic meaning of the employment relationship?

What gives rise to discipline in the workplace

• Contract of employment
• Common law
• Internal policies and procedures
• Ad hoc rules
• National laws
• International laws
• Labour Relations Act

When to invoke informal procedures prior to taking formal action

• What steps to follow?
• Dealing with the employee/s with sensitivity and compassion
• Alleged sexual harassment cases
• Sensitive incapacity and ill health issues

Types of dismissals

• Automatically unfair dismissals
• Distinguishing dismissals: Misconduct vs Poor work performance
• HIV/Aids
• Dismissals for incapacity- Ill-health /injury
• Dismissals after strike action: lawful, unlawful
• Misconduct dismissals
• Dismissals based on operational requirements
• Constructive dismissal

 Types of sanctions

• Verbal warning
• Written warning
• Final warning
• Suspension without pay
• Demotion
• Unpaid extended leave
• Transfer to another department
• Summary dismissal
• Dismissal with notice

Drafting charges/allegations

• Do not over complicate charges
• Clearly refer to actual incidents and dates
• Decriminalise charges
• Compounding of charges
• Including charges that the alleged offender has been disciplined for in the past

(worksheet for participants to complete in class.  Suggested answers provided)

Understanding evidence:       

• Relevance
• Admissibility
• Hearsay
• Oral evidence
• Real evidence
• Admissions
• Inspections in loco

Pre-hearing/enquiry procedures

• Understanding the need for a hearing or an enquiry
• When to involve the union when disciplinary action is being taken against an employee?
• Discussion with alleged offender
• Obtaining statement from alleged offender
• Investigations and gathering evidence
• Decision to take formal or informal route
• Application of internal policies and procedures
• Code of Good practice
• Consistency
• Obtaining statements from witnesses
• Securing the services of a chairperson
• Formulation and drafting charges
• When to suspend an employee facing disciplinary action?

Service of notice of hearing /enquiry on the employee

• How to service notice?
• When to serve notice?
• Managing an employee/alleged offender who refuses to accept service

Preparing for the disciplinary hearing/enquiry

• Preparing documentary evidence
• Alleged offender/employee’s disciplinary record
• Preparing real evidence
• Dealing with the logistics of an inspection in loco
• Dealing with queries and witnesses of the alleged offender
• Securing the venue
• Arranging minute taking / recording equipment
• Attendance registers

The disciplinary hearing/enquiry

• Burden of proof/duty to begin
• Raising points in limine
• Opening statements
• Presenting evidence
• Cross-examination
• Re-examination
• Closing statements
• Chairpersons verdict
• Aggravation and mitigation if found guilty
• Establishing the date of final outcome from the chairperson

Post disciplinary hearing/enquiry

• Obtaining consent from employee/alleged offender for a sanction short of dismissal
• Communicating the sanction to the employee/alleged offender
• Arranging for final statutory monies
• Communicating pension/provident fund payments
• Issuing final letter of dismissal
• Issuing of certificate of service and UI19
• Communicating and managing the logistics of the employee’s exit from the premises
• Assisting with appeals process and/or referral to CCMA/Bargaining Council

Day will end with a role play