Extracted from the article on Golegal by Saloma Hamman (Schoemanlaw INC)
It is important that the employers ensure procedural and substantive fairness towards their employees. The correct procedure should be followed in any disciplinary process, and it is essential that employees know their rights.
The correct and fair steps for a disciplinary hearing
This process is prescribed by Schedule 8 of the Labour Relations Act 66 of 1995. When an employer fails to abide by the requirements, he/she risks paying penalties by order of an arbitration award or may even have to reinstate the employee in its employment roll subsequent to dismissal.
The notice to attend a disciplinary hearing
The employer needs to inform the employee of the disciplinary complaint lead against him or her. The following information should be in the notice to ensure procedural fairness:
- Date, time and place of the hearing;
- The charges laid against the employee;
- Notification to the employee of the option to be represented;
- Notification to the employee of the right to an interpreter; and
- Notification to the employee of the right to call witnesses to prove its case and innocence in the case levelled against him/her.
Hearing requirements
The chairperson should be impartial and fair.
The chairperson must explain the breach of misconduct and explain the process of the hearing.
The parties may call witnesses to testify to prove their cases, and the chairperson will be allowed to ask questions to clarify certain aspects.
After the hearing submissions by the employer and employee, evidence and witnesses, the chairperson will decide on the guilt or innocence of the employee. This decision will be based on a balance of probabilities and will include an appropriate sanction or outcome should the employee be found guilty.
If the employee is found guilty, he/she should be allowed to mitigate the final sentence and show remorse to save the relationship with the employer.
The employer should inform the employee of the option of referring the matter to the CCMA for further deliberations.
Types of sanctions
- A verbal warning;
- A written signed warning;
- A final written signed warning;
- Suspension without payment;
- Demotion from a higher position; and
- Dismissal.
In conclusion
The basic requirements for fairness are provided to the employee and employer as a guideline to comply with the Act. Therefore, it is important to ensure your company is following the correct procedure to avoid further action at the CCMA, Bargaining Council or even Labour Court.
