By Christo Bester, LWO

The South African labour environment is highly regulated and it is of the utmost important that employers should follow correct procedures at all times, more so when an employee is dismissed. Mistakes made in this process could result in financial loss.

A formal internal disciplinary code is essential to ensure that clear rules and procedures exist in the workplace which employees should adhere to. When these rules and procedures are not complied with, the employer may apply progressive disciplinary measures (warnings) or, in the case of serious misconduct, immediately proceed with a disciplinary hearing.

How to conduct a disciplinary hearing

A disciplinary hearing has to be held to ensure that certain fair procedures are adhered to and that a substantive reason exists why the employee has to be dismissed. It is also very important that the employee is given ample opportunity to state his/her case and to call witnesses

Steps to ensure fair procedures and substantive fairness

Issue a notice to the employee to attend the disciplinary hearing. In this notice the employer has to stipulate the time and place where the hearing will be held, and also include full particulars of the complaints being brought against the employee including date, time and particulars of incidents.

Employers are advised to give at least 48 hours’ notice (excluding weekends and public holidays) of the hearing to the employee to allow the employee ample time to prepare for the hearing.

Conduct the hearing on the proposed date and time

The employer should continue with the hearing even if the employee does not turn up and provide the Presiding Officer with the necessary evidence. The Presiding Officer has to determine whether the employee had been given ample notice of the hearing and whether the employee has a valid reason for his/her absence. After completion of the hearing the Presiding Officer will make a recommendation regarding the dismissal or not of the employee.

Adhere to the hearing procedure

During the hearing the Presiding Officer will ask the employee whether he/she pleads not guilty to the complaints being brought against him/her. The employer will state his/her case by introducing evidence and calling witnesses. The employee will then have opportunity to cross question the employer’s witnesses, and thereafter state his/her case and call witnesses on his/her behalf. Following this, the employer is given opportunity to cross question the witnesses of the employee. At the end of the hearing both parties are given opportunity for closing arguments.

The Presiding Officer has to find the transgressor guilty or not guilty

After the Presiding Officer has made a finding, the employer will be requested to submit aggravating circumstances and the employee mitigating circumstances. The Presiding Officer will then decide on a fitting sanction to punish the employee. Should the Presiding Officer decide that dismissal is a fitting sanction, the employee will be dismissed with immediate effect.

Who can act as Presiding Officer during a hearing?

The Presiding Officer at a hearing should be an objective and impartial third party to the hearing, preferably someone with knowledge of labour law procedures and requirements. The AEO always suggest that the legal advisor of an employers’ organisation be asked to preside. Should the employer not have an impartial enough person in his/her employ, he/she could resort to asking a neighbouring organisation to nominate an employer with enough knowledge of labour relation procedures in his/her employ to act as Presiding Officer. It is important to be able to prove to the CCMA that the Presiding Officer was an impartial participant in the hearing.

Should a hearing be formal or informal?

A hearing may be formal or informal but it is imperative that the employer should be able to prove that an official hearing had been held. Consequently a formal hearing is rather recommended as the employer is then compelled to ensure that all paper work is in order, should the case be referred to the CCMA.

The employer/employee relationship is based on reciprocal benefits and respect. Explicit rules and guidelines obviate friction and misunderstandings, which could promote productivity and a positive working environment. Employers are strongly advised to draw up clear rules for the workplace and to follow correct procedures at all times, especially regarding dismissal, retrenchment and general discipline in the workplace.

A Commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA) will always pose the following questions:

• Were workplace rules transgressed?
• Is there proof that the employee was aware of this rule?
• Did the employee act in accordance with this rule?
• Was progressive discipline applied in accordance with the transgression under discussion?